This is amotion for a notice to issue to the Defendants, to shew cause why a mandamus should not issue against the Defendants, to restore Hie relator to his franchise as a corporator in the Company. It appears from the affidavit that Delacy became a subscriber on the 13th of April, 1818, and was admitted as a corporator from thenceforth until after ho made, ;; contract with the President and Directors, by which ho was to pay for the stock he had subscribed to. If after this contract had been put an end to, Delacy had been called upon to pay his subscription, and upon neglecting to do so, or on not shewing a satisfactory reason for the neglect, he had been ejected from his place as a corporator, it would have been incumbent on the. Court to inquire into, and give an opinion on the right of the stockholders so to proceed. What he could have shewn on such a notice, either as payment, or excusing the neglect, cannot be told j but prima fade we must take it to be the undoubted right of every man to receive notice of any proceeding against him by which be is to he deprived of acknowledged rights j and for want of such notice in the present case, the rule ought to issue as prayed for in the petition.
By the fourth section of the act of 1812, ch. 88, which by the act of 1816, ch. 16, as well as many other sections of the act of 1812, are adopted as part of the charter of the Neuse River Navigation Company, it is declared, “ That each subscriber shall pay .for every share by-him or her subscribed, at the first general meeting, the sum of ten dollars to the Treasurer of the Company — and the names of those who fail to pay, then and there may be struck off the books, and others complying with this regulation may take such shares.” The name of Delacy was not struck off at the first meeting, nor did he make any payments . on account of the shares subscribed for by him. But he states, that in lieu thereof he contracted with the President and Directors to do certain work on the river Neuse. He admits that the work was not completed, and that the President and Director's declared the contract to be at an end, according to the power reserved to them in the contract to' do so if they thought proper.
When this declaration was made, the parties stood in the same situation they were in at the first meeting, except that that meeting had passed away and it was too late to pay the first instalment at that meeting. But when it shall be kept in view, that it was by the consent, and no doubt at the request of Delacy that payment had not been made, and that he had failed to do that which was a substitute for it, I think the equity and justice of the case, and the fair construction of the act of. Assembly, would place the parties in the same situation at a subsequent meeting as they stood in at the first, so far at b ast as that Delacy then had the power and privilege of making payment, and if he did not, that the stockholders had the right of striking his name from the list of subscribers for shares. But it seems that his name was struck off by the President and Directors, and not by thé stockholders at one of their meetings. I think the President and Directors, in doing this, transcended the limits of *280their authority; but this entry, by which the name of Delacy was stricken off, was afterwards virtually adopted by the stockholders as their act; for they refused to receive Delacy’s vote at an election for President and Directors, and had he had due notice of such procedure before it took place, I think from that time he would have ceased to be a member of the corporation. Nor do I think the case would have been altered from the consideration that he had been a member from their first meeting- up to that time — for every person who had subscribed for shares, before he paid his first instalment, was a member to many purposes. He might, perhaps, have voted for President and Directors — for passing bye-laws for the government of tlie corporation — he liad, perhaps, to the last moment of the meeting to pay his first instalment. And for the same reason, Mr. Delacy might have exercised the right of a corporator at any subsequent meeting before his name was struck off for failing to make payment. But I suppose he possessed no more rights at auy subsequent meeting before his name was struck off, than he did at the first meeting. It has beer said that Delacy possessed more shares than the stockholders who struck off his name from the books, and that there were not a majority of course at that meeting. If those who were present, were qualified by having paid up their instalments, and were a majority of those that had done so, I think they were authorised to act as they did ; for Delacy* owing to his delinquency, might by them be stricken off, as he might at the first meeting have been. But what is to be done if Delacy refuses to pay any thing due on his shares ? I cannot think the law contemplated a sale of them — for besides the positive words in the act that directs the names of delinquents to be stricken off, the_4th section of the act of 1816, speaking of sales, (not, to be sure, with a view to this question,) speaks of sales of balancesjiae, meaning no doubt balances due after payments had been made. To pur*281chase a,share when nothing had been paid, would he to subscribe for a share. But another circumstance ought not to pass unnoticed, and that is, that Delacy had not notice that the corporation was about to strike off his name from their books. If he had had notice he might have shewn, for aught that appears, that he had paid his instalments, or that he was ready to do so. For this reason, and for this reason only, I am willing that a mandamus should issue.
The applicant was once a cor-porator, for it was not imperative on the stockholders at their first meeting to strike oif those, who failed to pay. They did not do it, they received him and others without requiring payment; he voted with them as a corpo-rator; in fact, their order of removal shews that he was, before the removal, one of their body. I shall pass over every other point made in the case but one ; that is, that the applicant was removed by the stockholders at some meeting subsequent to the first, for failing to make payment, and this without any notice to him; for it may be considered as a removal by the stockholders — they recog-nise the act of the directory. It is a fundamental principle of our Lawr, and recognised in every Court of Justice, (and this corporation was a Court when passing on the lights of its members,) that no man shall be condemned or prejudiced in his rights, without an opportunity of being heard. No matter how desperate his case may appear to be, the humanity of the law says, perchance he may have something to say in his defence ; we will, therefore, not forestall him by saying he can allege nothing ; but after having heard liim, will pass upon his case. For this reason I think the mandamus should go 5 for without prejudging the case, we do not know but that the applicant might have paid, or shewn some satisfactory reason for not paying, or that he then might have paid, for it was not even then too late. As to some *282cases which are to be found in Term Reports, that no notice is required when it appears clearly that the applicant has nothing to offer in his defence ; for the present ^ -g a <|ufpcjen(- answcr to say, that it does not appear that Delacyhad nothing to offer, or cotild not, by paying the money, avert the forfeiture. When a Case of that kind arises, it will then be time enough to examine the soundness of the doctrine. I am therefore of opinion, that the Superior Court of Wake should issue a mandamus to the corporation, commanding it to restore the applicant to the rights of a corporator, or shew cause to the contrary. '