Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

feasance under statutes of this character, even when no legal remedy is prescribed in the statute.1 And yet it would be unfair and inequitable both to the other creditors and to the directors to allow separate actions to be prosecuted against one or more less than all, thus exhausting the liability or resources of the particular defendants to satisfy a portion of the indebtedness, leaving the other creditors without an effective remedy. It would be especially unjust to the directors against whom the action is brought where as in California, the statute makes them jointly as well as severally liable in all cases where this species of liability is imposed upon them.

66

This question depends so much on the terms of particular statutes, and on the remedial systems of the different states, that it is not surprising that there should be such a conflict of decisions with regard to it as to preclude any attempt to reconcile the cases. Where the statute does not expressly require the remedy to be pursued at law, we believe the better doctrine is that the remedy of the creditor should be sought in equity, for notwithstanding these statutes are generally regarded as penal, yet the object of the legislature in enacting them is to create an additional security for all the creditors of the corporation; and this policy is in a measure defeated by allowing a proceeding whereby those who succeed in first prosecuting their claims to judgment exhaust the security and leave the others unpaid."2

1 Cornwall v. Eastham, 2 Bush, 561; Buell v. Warner, 33 Vt. 570.

2 Thompson on Liability of Officers and Agents, p. 456. See also, Horner v. Henning, 93 U. S. 228, 232; Buchanan v. Barstow Iron Co., 3 Bradw. 191; Buchanan v. Low, 3 Bradw. 202; Peele v. Phillips, 8 Allen, 86; Bond v. Morse, 9 Allen, 471; Merchants' Bank v. Stevenson, 10 Gray, 232; Crease v. Babcock, 10 Met. 525; Schley v. Dixon, 24 Ga. 273, 379; Bank of St. Mary's v. St. John, 25 Ala. 566.

It is held in Vermont that a statute making a director liable to pay the creditors and stockholders of banks all losses which may be sustained in consequence of any violation by them of the provisions of the banking laws of the state or other unfaithfulness in the discharge of their official duties, "and providing that any number of such directors may be sued in the same action by any claimant under the provisions of this section," gives an appropriate remedy at law.1

The personal liability of directors of a national bank for declaring dividends in excess of net profits, for loaning to separate persons, firms, or corporations amounts exceeding one-tenth of the capital stock, cannot be enforced in an action at law.2

§ 930. The accrued liability is a debt.-Although the right of action is in no sense founded upon contract, it does not follow that it arises ex delicto.

The action of debt lies in many cases on penal statutes, and at common law was usually the appropriate form of action. It lay on judgment for money for penalties and all other liabilities created by statute, requiring the payment of money when the statute declared no other remedy, and when the amount of liability was certain or might be readily rendered certain.3

1 Buell v. Warren, 33 Vt. 570; see also Bassett v. St. Albans Hotel Co., 47 Vt. 313.

2 Rev. St. U. S., sec. 5204, sec. 5200; Wells v. Graves, 41 F. 459. Rev. St. U. S., §§ 5234, 5239, prescribing the method of enforcing the liability, are exclusive of other remedies, and a creditor of an insolvent bank, for which a receiver has been appointed, cannot sue its directors for the purpose of making them personally liable for the mismanagement of the bank. National Exch. Bank v. Peters, 44 F. 13.

In an action under Rev. St. U. S., § 5289, for making excessive loans, plaintiff may state the aggregate amount of the excessive loans made to each party, and the damage resulting therefrom in each case, accompanying each allegation with an exhibit showing the dates and amounts of the several loans that go to make up the aggregate sum stated in the petition, and is not compelled to declare in a separate count for each loan made. Stephens v. Overstolz, 43 F. 771.

Chitty on Pleading, 110, 111, 112.

§ 931. Parties to suit. The question who are proper parties plaintiff and defendant in actions to charge directors with personal liabilities under special statutes can only be determined by consulting them and the practice of the court having jurisdiction of the matter.

If from the wording and proper construction of the statute the intention appears to make the liability one for a debt due the corporation and hence a part of the assets for the satisfaction of creditors, the corporation should be made a party defendant in a proceeding to wind up the business of the corporation and make distribution.

Or if in such case, a receiver has been appointed he may sue for and collect the statutory penalty for the benefit of creditors as he may other debts and assets due the corporation; and in such suit should sue on behalf of the corporation.1

It has been held that the penalty incurred under such statute is a debt to be collected for the benefit of the creditors by a receiver.2

Where the statute gives the penalty to which any director subjects himself by any particular act or default to any creditor of the corporation who may choose to sue therefor, it is evident that neither the corporation nor any other party than the creditor bringing the suit and the director or directors sought to be charged would be proper parties.3

§ 932. Other forms of statutory liability.-Statutes and constitutional provisions frequently impose other forms

1 The fact that the affairs are in the hands of a receiver neither takes away nor suspends the right of action for a penalty given to a creditor, Patterson v. Minn. Mfg. Co., 41 Minn. 84. Under a statute imposing joint and several liability one creditor may sue one or more of the delinquent directors without joining others as parties plaintiff or defendant.

2 Bank of Niagara v. Johnson, 8 Wend. 645, 656.

8 Loveland v. Garner, 71 Cal. 541.

of liability. The most usual are: for embezzlement and misappropriations of officers; for making unauthorized dividends, dividing, etc., capital stock, creating debts in excess of subscribed capital, and reducing or increasing it illegally; for making false reports and entries and giving false certificates; for making false annual statement by bankers; for loss on insurance in certain cases.1

§ 933. Failure to make reports.-The individual liability imposed by statute upon directors for making false reports, failure to report and other omissions and misfeasances is like that under other penal statutes strictly limited. A mere technical omission of details

1 Acts 16th Gen. Assem., Iowa, c. 123, § 6, provides that if the directors of any railroad of three-feet gauge receiving taxes voted in aid thereof under the act shall vote to mortgage or incumber the road for more than $16,000 per mile. they, or those voting in the affirmative, shall be liable to each stockholder in an amount double the par value of his stock, if the stock is rendered less valuable thereby. Held, that persons receiving shares for taxes voted and paid after the recording of a mortgage for more than $16,000 per mile cannot recover against the directors who voted the same. Walker v. Birchard (Iowa), 48 N. W. 71.

The director of a bank, who, with knowledge that it is insolvent, assents to receiving a deposit, is personally liable to the depositor, under Rev. St. Mo., 1879, § 918, providing that no director shall assent to the reception of deposits after he shall have knowledge that the bank is insolvent, and that every person violating the provisions of that section shall be individually responsible for deposits so received. Cuinmings v. Winn (Mo.), 14 S. W. 512.

When a deb against a corporation owned by a trustee was assigned by him absolutely for value, it was held the assignee, on a default by the company to make a report, subsequently occurring, may proceed to hold the trustees individually liable, although the assignor continued to be a trustee up to the time of the default. Cornell v. Roach, 101 N. Y. 373; 5 N. E. 52.

2 Nimmons v. Tappan, 2 Sweeney, 652; Dabney v. Stevens, 2 Sweeney, 415; Crew v. Easterly, 4 Lans. 513; 54 N. Y. 679; see Hill's Ann. Laws of Oregon, sec. 3231; Gen. St. Nev., secs. 814, 815; Deering's Ann. C. Cal. 309. For construction of statute see Paxton et al. v. Beacon Hill, etc., Co., 2 Nev. 257; Martin v. Zellerbach, 38 Cal. 300; Harris v. F. S. R. Co., 41 Cal. 393. The trustees of a manufacturing company in New York must file annual reports under the penalty of becoming individually liable if sued within three years. Laws N. Y. 1848, sec.

15 of ch. 40; Cornell v. Roach, 101 N. Y. 373; 5 N. E. 52. 101 N. Y. 71; 4 N. E. 104.

Butler v. Smalley.

And yet a

in a report does not create the liability.' signing of their names to a report by the secretary is not such acompliance with the statute requiring them to make a report as will relieve them from the liability imposed for failure.2

It was held in one case that their liability was not affected by the fact that at the time a report was required to be made they were engaged in closing up the affairs of the corporation, it having ceased to do business; but a different conclusion was reached in a later case. But they cannot be held liable for a failure to make an annual report after the appointment of a receiver.5 The liability for

3

In an action for a penalty against a gold mining company, brought under St. Cal., 1880, p. 134, which provides that such corporation shall on the first Monday of each month make and have posted in the office of such company certain reports and accounts current for the previous month, an answer denying the allegation of the complaint that said company had an office for the transaction of business is insufficient to raise a material issue; Civil Code, §§ 290, 321a, contemplating that all corporations shall have a place of business. Chapman v. Doray (Cal.), 26 P. 605.

1 Thus it was held that the penalty imposed by Sec. 15, c. 40, Laws N. Y., 1848, on trustees of manufacturing corporations for signing a report "false in any material representation," is not incurred where the report only omitted from the aggregate of the indebtedness certain liabilities of the company, and such omission was not made in bad faith, nor for a fraudulent purpose. Butler v. Smalley, 101 N. Y. 71; 4 N. E. 104.

2 Bolen v. Crosby, 49 N. Y. 183.

3 Sanborn v. Lefferts, 58 N. Y. 179.

Kirkland v. Kille, 99 N. Y. 390; 2 N. E. 36.

5 Huguenot Bank v. Studwell, 74 N. Y. 621. A report by the directors of a manufacturing company stating the amount of its capital and that all of it had "been paid in, in cash, patent rights, merchandise, machinery accounts, etc., necessary to the business and for which stock to the amount of the value thereof has been issued by the company," was held to be a sufficient compliance with an act which required that in all statements and reports which are to be published by a company portion of the stock of which has been issued in payment for property," it shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact." Whittaker v. Masterton, 106 N. Y. 277. The general manufacturing act of New York provides that every such company shall within twenty days from the first day of January in each year make a report of its assets and liabilities . . . and if any

« ΠροηγούμενηΣυνέχεια »