delivered the opinion op the Court. '
On the 16th day of May, 1868, the defendant, here as well as below, signed a subscription list of shares in the Telegraph Co. for one hundred shares, for which he has never paid anything. Among other defenses—which need not be noticed-—he showed by the articles of the company, dated the 2d day of December, 1867, acknowledged the 12th day of May, 1868, and filed in the office of the Secretary of State on the 17th day of July, 1868, that all the stock of the company had been taken by other persons at the date of the articles.
It is pretty clearly intimated in the case of this plaintiff v. Bush, 35 Ill. App. 213, that we then thought that this defense was a good one, if not avoided by^ome answer to it. Scovill v. Thayer, 105 U. S. 143, accords with that intimation. We held Bush liable because, upon the circumstances he had, as we held, elected to take the position of a stockholder under the decree of the Circuit Court made in pursuance of the opinion of the Supreme Court in Terwilliger’s case, 59 Ill. 249.
Here the defendant never did anything under that decree, and indeed never was in a position to take shares under it. Only those who had paid something on their subscriptions could take. The defendant never had any claim upon the company, nor did the company ever have any claim upon him. The assessment decree is against stockholders as a class; who are stockholders is to be proved.
As to the defendant the proof fails and the judgment is affirmed.