The opinion of the court was delivered by Yeates J. The court have no difficulty in this case. The terms of subscription must no doubt be taken with the act at large, but there is nothing in the act to annul the unconditional and express promise demanded by the first section. The power given to the compariyby the tenth
section is merely discretionary; the penalty is in favour of the company, it is intended to enforce the payment of the subscription, and they may waive it as they have done in this case. As to the original shares then, there. must be judgment for the plaintiffs for the sum remaining due, with interest at six per cent. The shares which the defendant holds as transferee stand on a different ground; as to them he has given no express promise to pay, and the act has made no other provision than that tile `~thare~ should be subject to the payments. SHIPPEN C. J. was not present at the argument.