The demurrer must be overruled. The action is not brought upon the contract of subscription. It is based upon the provisions of the Rev. Sts. c. 39, § 53. A sale of the defendant’s shares having been made, for failure to pay the assessments laid upon them, this action seeks to recover the difference between the amount of the assessments and the sum for which the stock was sold. The case is within the rule settled in Troy & Greenfield Railroad v. Newton, 1 Gray, 544.
It is said, however, that this demurrer having been sustained in the court of common pleas, no appeal lies from that judgment. The demurrer is not to form, but to substance, to the cause of action. It is, in effect, that the facts stated do not in point of law support the action. It is therefore within the provisions of the St. of 1852, c. 312, § 23, and may be heard on appeal.
Demurrer overruled.