Suit by the company on an absolute and unconditional subscription, by the defendant, to the capital stock of the company.

Judgment for the defendant.

The defense set up was, in substance, that the subscription was obtained by the fraud of the company, through her agents, in representing and promising the defendant that the road would be located through, or, at most, within a half a mile of the town of Petersburgh, whereas it has been located and constructed two miles from said town.

That such defense cannot prevail, has heretofore been *364decided by this Court. The New Albany and Salem Railroad Co. v. Fields, 10 Ind. R. 187.

The judgment is reversed with costs. Cause remanded for a new trial.