cases where the ground of relief alleged is such as would justify the rescission of an ordinary contract that the courts of equity can exercise this power. In other cases, though a sufficient ground for dissolving the marriage may exist, a court of equity cannot so decree unless authorized by the statute.25 Thus, it cannot annul a marriage on the ground that the woman had another husband living at the time it was contracted, where it is not shown that the other party was led into the marriage through deception or concealment.246 And even in cases clearly within the general jurisdiction of equity, the courts are now disposed to refuse to take cognizance of them where the statute law has provided another and adequate remedy, either by vesting special tribunals with authority for that purpose or by specifying fraud, duress, imbecility, etc., as a ground for divorce or annulment.247 Thus, in a case in Ohio, it was held that the court of chancery would take jurisdiction of a proceeding to annul the marriage of a person entirely lacking in mental capacity, just as it would to order the surrender and cancellation of a forged or otherwise void instrument. But at that time, "congenital or other mental imbecility" was "not among the statutory causes of divorce" in that state.248

A "mock" marriage, where the parties go through all the forms and ceremonies of an actual solemnization, but only in jest or (it might be supposed) in the course of a theatrical performance, and without any intention to marry, does not create the marital status, and either may refuse to be bound by it.249 And so also, where a marriage ceremony

245 Griffin v. Griffin, 47 N. Y. 134.

246 Kelley v. Kelley, 161 Mass. 111, 36 N. E. 837, 25 L. R. A. 806, 42 Am. St. Rep. 389.

247 Selby v. Selby, 27 R. I. 172, 61 Atl. 142; Carris v. Carris, 24 N. J. Eq. 516; Tefft v. Tefft, 35 Ind. 44. "Where an impediment of this sort intervenes, and jurisdiction for nullity has been conferred on no court by statute, our equity tribunals will entertain the complaint and declare the marriage void. Equity in England will not do this, because formerly there was an express jurisdiction in the ecclesiastical courts, and now there is in the divorce court. Nor probably would our courts of equity take the jurisdiction where a statute has expressly conferred it on some other tribunal." 2. Bishop, Marr. & Div. § 291.

248 Waymire v. Jetmore, 22 Ohio St. 271. 249 McClurg v. Terry, 21 N. J. Eq. 225.

is actually and legally performed, but the parties both believe it to be a mere "rehearsal" or in some way preliminary to the real marriage.250 And a mock marriage, where the woman was deceived into supposing it a real marriage, by the performance of a ceremony by a person who falsely pretended to be a minister or a magistrate, is voidable for fraud.251 But "fraud," in connection with the voidability of a marriage, does not mean error or mistake into which a person may fall concerning the character or qualities of the other party, though occasioned by false statements or practises. No misconception as to the character, fortune, health, or temper will support the allegation of fraud, nor even a false representation by the woman as to her previous chastity.252 Intoxication at the time of entering into a marriage contract will not render the marriage void, but only voidable.253 But a marriage procured by the exertion of duress, whether by actual physical restraint or by threats of violence or imprisonment, may be annulled.254 Contracts collateral to a marriage, or of which it forms the consideration, may usually be dealt with according to the ordinary rules. Thus, where a defendant obtained a deed from the plaintiff by fraud and undue influence, a part of the consideration for which was the marriage of the parties, it was held that the fact that the defendant could not be placed in statu quo would not prevent a cancellation of the deed.255

250 Clark v. Field, 13 Vt. 460, 472.

251 Barclay v. Commonwealth, 116 Ky. 275, 76 S. W. 4.

252 Varney v. Varney, 52 Wis. 120, 8 N. W. 739, 38 Am. Rep. 726. And see Smith v. Smith, 8 Or. 100; Allen v. Allen (N. J. Ch.) 95 Atl. 363.

253 Barber v. People, 203 Ill. 543, 68 N. E. 93. And see, supra, § 277.

254 Shoro v. Shoro, 60 Vt. 268, 14 Atl. 177, 6 Am. St. Rep. 118; Fowler v. Fowler, 131 La. 1088, 60 South. 694; Quealy v. Waldron, 126 La. 258, 52 South, 479, 27 L. R. A. (N. S.) 803, 20 Ann. Cas. 1374. See Griffin v. Griffin, 130 Ga. 527, 61 S. E. 16, 16 L. R. A. (N. S.) 937, 14 Ann. Cas. 866; Thorne v. Farrar, 57 Wash. 441, 107 Pac. 347, 27 L. R. A. (N. S.) 385, 135 Am. St. Rep. 995. And see, supra, §§ 223, 231, 233.

255 Ring v. Ring, 55 Misc. Rep. 420, 105 N. Y. Supp. 498.

§ 346. Subscriptions for Corporate Stock; Release or Withdrawal.-A subscription by a number of persons to the stock of a corporation to be thereafter formed by them constitutes, first, a contract between the subscribers themselves to become stockholders when the corporation is formed upon the conditions expressed in the agreement, and as such it is binding and irrevocable from the date of the subscription; and second, it is in the nature of a continuing offer to the proposed corporation, which, upon acceptance by it, becomes as to each subscriber a contract between him and the corporation.256 Consequently it is a rule that a subscriber for stock in a corporation organized or to be organized cannot withdraw his subscription and repudiate his liability upon it, in the absence of fraud or other ground for rescission, nor, after the acceptance of the subscription by the corporation, can the directors authorize it to be withdrawn, without the consent of all the other subscribers.257 But like any other contract, a subscription contract may be released by the unanimous consent of all the subscribers, or by the mutual abandonment of the entire subscription list, which last may be inferred from the conduct and dealings of the parties.258 Moreover, there may be conditions, express or implied, the non-fulfillment of which will justify a subscriber in renouncing his subscription, as, where it is stipulated that the intended business of the

258 Garrett v. Philadelphia Lawn Mower Co., 39 Pa. Super. Ct. 78. 257 Thomas v. Wentworth, 16 Cal. App. 403, 117 Pac. 1041, 1046; Beam v. Floyd County Farmers' Union, 8 Ga. App. 399, 69 S. E. 225; Cravens v. Eagle Cotton Mills Co., 120 Ind. 6, 21 N. E. 981, 16 Am. St. Rep. 298; Gathright v. Oil City Land & Imp. Co., 21 Ky. Law Rep. 1657, 56 S. W. 163; Chicago Bldg. & Mfg. Co. v. Peterson, 133 Ky. 596, 118 S. W. 384; Cammack v. Levy, 120 La. 873, 45 South. 925, 124 Am. St. Rep. 443; Shelby County Ry. Co. v. Crow, 137 Mo. App. 461, 119 S. W. 435; United Growers Co. v. Eisner, 22 App. Div. 1, 47 N. Y. Supp. 906; Chicago Bldg. & Mfg. Co. v. Lyon, 10 Okl. 704, 64 Pac. 6; King v. Howeth, 42 Okl. 178, 140 Pac. 1182; Wills v. Nehalem Coal Co., 52 Or. 70, 96 Pac. 528; Keystone Wrapping Mach. Co. v. Bromeier, 42 Pa. Super. Ct. 384; Steely v. Texas Improvement Co., 55 Tex. Civ. App. 463, 119 S. W. 319; South Milwaukee Co. v. Murphy, 112 Wis. 614, 88 N. W. 583, 58 L. R. A. 82.

258 Palais Du Costume Co. v. Beach, 144 Mo. App. 456, 129 S. W. 270; National Realty Co. v. Neilson, 73 Wash. 89, 131 Pac. 446; Silica Brick Co. v. Winsor (Cal.) 151 Pac. 425.

company shall be commenced within a limited period of time,259 or that no subscription shall be binding until the whole of a stipulated sum has been secured or subscribed.200 So also, it is an implied condition that the proposed corporation shall be actually organized and in accordance with law, and if this is not done, any subscriber may withdraw his name from the list.201 So again, where the stock subscribed for cannot be issued by the corporation without a violation of law, the contract of a subscriber is not enforceable against him.262 A contract whereby an infant either purchases outstanding stock in a corporation or subscribes for stock to be issued to him from the treasury is voidable at his option. He may either affirm it on reaching his majority, or he may repudiate or rescind it at any time, whether before or after coming of age.263

A material modification of the plan of a proposed corporation differing essentially from that contemplated by a contract of subscription for stock, signed before the incorporation, will release any subscriber who did not know of the change or who objects on discovering it.204 Thus, where the charter of the corporation sets forth the purposes for which it is to be operated or the business it is to pursue, and these are materially different from what was stated on the point in the prospectus, on the basis of which subscriptions to its stock were made, the subscribers may withdraw.205 But a subscription to stock is not avoided by the

259 Federal Trust Co. v. Coyle, 34 Okl. 635, 126 Pac. 800.

260 Allen v. Hastings Industrial Co., 2 Ga. App. 291, 58 S. E. 504. 261 Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490, 32 N. E. 449; Wright Bros. v. Merchants' & Planters' Packet Co., 104 Miss. 507, 61 South, 550, Ann. Cas. 1915C, 1111.

262 Trent Import Co. v. Wheelwright, 118 Md. 249, 84 Atl. 543. 263 Foster v. Chase (C. C.) 75 Fed. 797. And see, supra, § 292. 264 West End Real Estate Co. v. Nash, 51 W. Va. 341, 41 S. E. 182; El Dorado Farmers' Union Warehouse Co. v. Eubanks, 94 Ark. 354, 126 S. W. 1075; Midland City Hotel Co. v. Gibson, 11 Ga. App. $29, 76 S. E. 600. But see Huster v. Newkirk Creamery & Ice Co., 42 Okl. 440, 141 Pac. 790, L. R. A. 1915A, 390; Clarksburg Board of Trade Land Co. v. Davis (W. Va.) 86 S. E. 929. 265 Stern v. McKee, 70 App. Div. 142, 75 N. Y. Supp. 157; Strong V. Southwestern Iron & Bridge Co. (Tex. Civ. App.) 38 S. W. 546; Midland City Hotel Co. v. Alexander, 14 Ga. App. 8, 80 S. E. 24.

BLACK RESC.-57

enactment by the legislature of a permissive amendment. to the charter of the corporation, which makes radical and material changes, in the absence of a showing that the amendment was accepted by the company.266 And perhaps this is true of any amendment of the charter which is authorized by the terms of the charter,267 certainly, at least, where it amplifies the powers of the corporation, but without materially changing the general nature of its business or chief pursuit.268

§ 347. Same; Rescission for Fraud or False Representations. One who is induced by fraud or material false representations as to matters of fact to subscribe for stock in a corporation may rescind his agreement on discovery of the fraud, and may have the aid of a court of equity to make his rescission effective and either to release him from liability on his subscription or to recover back what he has paid.209 First, it is necessary that the representations made to the subscriber should have been false in fact, though, if this was the case, the right to rescind will not be taken

But see West End Real Estate Co. v. Claiborne, 97 Va. 734, 34 S. E. 900.

266 Chattanooga, R. & C. R. Co. v. Warthen, 98 Ga, 599, 25 S. E. 988.

267 Fairfax v. Bloch, 130 La. 761, 58 South. 563.

268 Casanas v. Audubon Hotel Co., 124 La. 786, 50 South. 714. 269 Bartol v. Walton (C. C.) 92 Fed. 13; Barcus v. Gates, 89 Fed. 783, 32 C. C. A. 337; Wiseola Co. v. Moore, 187 Ala. 163, 65 South. 398; Southern States Fire & Casualty Ins. Co. v. Tanner, 180 Ala. 30, 60 South. 81; Hurley v. Young Men's Christian Ass'n, 16 Ariz. 26, 140 Pac. 816, 52 L. R. A. (N. S.) 220; Evatt v. Hudson, 97 Ark. 265, 133 S. W. 1023; Richey v. Brinks, 100 Ark. 629, 140 S. W. 129; Haldiman v. Taft, 102 Ark. 45, 143 S. W. 112; Smock v. Henderson, 1 Wils. (Ind.) 241; Savage v. Bartlett, 78 Md. 561, 28 Atl. 414; Negley v. Hagerstown Manufacturing, Mining & Land Imp. Co., 86 Md. 692, 39 Atl. 506; Hamilton v. American Hulled Bean Co., 143 Mich. 277, 106 N. W. 731; Nicholls v. Buell, 157 Mich. 609, 122 N. W. 217; Brolaski v. Carr, 127 Mo. App. 279, 105 S. W. 284; Sherman v. Shaughnessy, 148 Mo. App. 679, 129 S. W. 245; Mack v. Latta, 178 N. Y. 525, 71 N. E. 97, 67 L. R. A. 126; Acetylene Light, Heat & Power Co. v. Smith, 10 Pa. Super. Ct. 61; Weisiger v. Richmond Ice Mach. Co., 90 Va. 795, 20 S. E. 361; Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. 591; West End Real Estate Co. v. Nash, 51 W. Va. 341, 41 S. E. 182; In re London & Mediterranean Bank, L. R. 12 Eq. 331; Reese River Silver Min. Co. v. Smith, L. R. 4 H. L. 64; Bohn v. Burton-Lingo Co. (Tex. Civ. App.) 175 S. W. 173.