came total losses, within the meaning of said policies of insurance, and during the voyages for which such insurances were made. And that the amounts of such insurance have not been paid. III. That at a meeting of the board of trustees of said corporation, at which defendant was present, during the time aforesaid, the defendant with the other trustees made dividends to the stockholders of the said corporation, to a large amount, to wit: to the sum of ...... dollars, which dividends were not made from the surplus profits arising from the business of said corporation. IV. That at a meeting of the board of trustees of said corporation, at which the defendant was present, and when the said corporation was insolvent and in contemplation of insolvency, the defendant, with the other trustee, made conveyances, assignments and transfers of the assets and property of said corporation, with the intent of giving a preference to particular creditors of said corporation over other creditors of said company. V. That the plaintiff is, and was, at the times of the aforesaid acts, a creditor of said corporation for the sum of dollars, as aforesaid, and the defendant then was a trustee of said company. That in consequence of the wrongful acts and violations of law by the defendant, with the other directors of said corporation herein before mentioned, the said corporation, prior to said ...... day of and while the plaintiff was such creditor, and the defendant such trustee, became, and now is, wholly insolyent; that plaintiff has sustained loss by reason thereof in the sum of ........ dollars. [Demand of Judgment.] No. 51. Against directors of an incorporated company for making unlawful dividends, and distribution of stock, adapted to section 309 of the Civil Code of California. Naming the defendants as individuals, not as directors. [TITLE] The plaintiff complains, and alleges: I. That on the ... day of......, 18.., and from that .... day until the .... day of... ..., 18.., the Com pany was a corporation existing under the laws of the State of California, and doing business as such, in its said corporate name. ......" II. That on the .... day of ... 18.., said .... Company made and delivered to the plaintiff its promissory note, of which the following is a copy [insert copy of note]; and that said promissory note remains wholly unpaid, and there is due to plaintiff thereon the said sum of $.... and interest thereon from the .... day of the rate of .... per centum per annum, all the United States. ......9 ..., 18.., at in gold coin of III. That the directors of said corporation on the .... day of... 18.., and while the said corporation was so indebted to the plaintiff, made and declared a dividend to the stockholders thereof of $.... per share, amounting in all to the sum of $........... and afterwards paid the dividend aforesaid to its stockholders aforesaid, and the plaintiff avers that said dividend was not made from the surplus profits arising from the business of said corporation. IV. That on the .... day of 18.., the said directors of said corporation divided among, and paid to the stockholders thereof the whole of the capital stock of said corporation, to wit: the sum of $.. ....... V. That the defendants, A. B., C. D., and E. F., and each of them, were, at and during all the times aforesaid, directors of said corporation, and assented to the making of said dividend, and the division and payment of said capital stock as aforesaid. VI. That said corporation was, on the 18.., dissolved. [State how.] [Demand of Judgment.] .... day of ..... 76. Essential Averment.-It should appear that the plaintiff was a creditor of the corporation at the time the wrongful acts and violation of law complained of are alleged to have been done or committed: Ogden v. Rollo, 13 Abb. Pr. 300. 77. Grounds of Action.-The complaint may set forth several grounds, on either of which the defendants would be liable: Durant v. Gardner, 10 Abb. Pr. 445; S. C. 19 How. Pr. 94. The statutes of the several States differ so much in regard to the acts which make directors or trustees of corporations individually liable to stockholders or creditors, and the grounds under each statute are so numerous, that we can only give the foregoing as suggestions to the pleader, who will, in all cases, be required to examine with great care the statute under which he is pleading. 78. Statute.--But when two different statutes severally authorize an action upon a certain state of facts, the arising of such state of facts constitutes but one cause of action; and a plaintiff must elect which statute he will proceed under; and cannot complain upon the same facts in two counts, one under each statute: Sipperly v. Troy and Boston R. R. Co., 9 How. Pr. 83. No. 52. xi. Individual Creditor against Individual Stockholder. [TITLE.] The plaintiff complains and alleges: I. That the .... day of Company is now, and since the 187., has been a corporation existing under and by virtue of the laws of this State, for the purpose of mining for silver and other precious metals, and that the principal place of business of the said corporation is, and since the said .... day of ... 187., has been in the city and county of San Francisco, and State of California. II. That the capital stock of said .... tion is, and since the said .... day of has been limited to ... ... corpora187., shares, of the par value of dollars per share; making a total capital of dollars. III. That the whole of said capital stock of said corporation was and is issued to and owned by various persons, who are now and have been such owners of said stock since the ... day of 187.; and that the full amount thereof has been paid into said corporation by said stockholders, and that all amounts paid in by said stockholders have been expended, and that nothing now remains to pay the claims of the creditors of the said corporation, and that said corporation is insolvent. 187., the said IV. That on the .... day of ..... corporation gave its promissory note to one A. B. for the sum of ... ... dollars, payable in gold coin, with interest at.... per cent. per month, a copy of which is hereto annexed, marked "Exhibit A." V. That said note was afterwards indorsed to the plaintiff by the said A. B. VI. That on the ...... day of 187., at the defendant made its acceptance in writing ....... for the sum of ...... ... dollars in gold, with interest from date, also payable in gold, for supplies then furnished by the plaintiff to said corporation, at its special instance and request, and delivered the same to the plaintiff. VII. That on the .... day of .... at ... the defendant made its certain other acceptance in writing for the sum of ..... .. dollars, payable to the plaintiff in gold coin, with interest at the rate of per cent. per month, from date, payable in gold coin, for supplies and money then and there furnished by the plaintiff to said corporation, at its special instance and request. ......" .... VIII. That on or about the day of....... in the District Court of the ........ Judicial District, County of in this State, the plaintiff commenced an action against the said corporation, for the sum of ........ dollars, principal and interest due upon said note and acceptances, and for costs and damages, all in gold coin. IX. That afterwards, on the .... day of 187., personal service of summons and certified copy of complaint in said action was made on the said.... Company. X. That afterwards, to wit, on the .... day of ... 187., judgment was rendered in the said action against the said company, the defendant therein, and in favor of this plaintiff, for the full amount of ..... dollars, in United States gold coin. XI. That afterwards, to wit, on the .... day of ... 187., execution was issued in the said action upon said judgment by the Clerk of the said Court, and addressed to the Sheriff of the said City and County of San Francisco, and which execution was thereupon delivered to said Sheriff, and on the .... day of ...... 187., he returned the same wholly unsatisfied, and that no property could be found within the said county belonging to said .. Company. ... ......... XII. That the said Company has not paid the said judgment, and that it still remains in full force and effect, unsatisfied, unreversed, and not appealed from; and that the plaintiff is the owner thereof. XIII. That ever since the .... .. day of 187., and also at and during the time when the said debts and liabilities, for said moneys advanced and supplies furnished, accrued and were contracted and incurred by said corporation, and the said note given and acceptances made, the defendant was a stockholder in the said corporation to the amount of .. shares of the capital stock of said corporation. XIV. That the total amount of indebtedness of the said corporation is ........ dollars. .... XV. That the proportion of said indebtedness, for which defendant is liable to plaintiff, is ...... dollars per share, in United States gold coin, amounting to the full sum of dollars in gold coin, with interest at the rate of per cent. per month, and payable in gold coin, on dollars of the above amount sued for, and interest at the rate of .... per cent. per month, in gold coin, upon the sum of .. dollars, the remainder of the .... above amount sued for. XVI. That although often requested, still defendant has failed, neglected and refused to pay the same, or any part thereof. Wherefore, plaintiff demands judgment against the defendant for the sum of ........ dollars in United States gold coin, and interest on the sum of ........ dollars, at the rate of.... per cent. per month, compounded monthly, payable in like gold coin, and interest on the sum of ..... dollars, at the rate of ... per cent. per month, in United States gold coin, and for costs of suit. .... [Exhibit “A," annexed.] 79. Action, Joint or Several.--A joint or several action may be brought against stockholders of a corporation for corporate debts: Larrabbee v. Baldwin, 35 Cal. 156. In an action of debt against a stockholder, a general indebitus count before the Code was sufficient, alleging that the company was indebted, etc., for, etc., and payment had been refused, although the debt of the company arose under a special contract: Simonson v. Spencer, 15 Wend. 548; Civil Code, sec. 322. 80. Discharge of Liability.-Each stockholder of a corporation formed under the act of 1853, is liable for his proportion of corporate debts, and any one creditor whose debt is sufficient, may collect of him the entire amount of his liability on all the corporate debts, leaving him to seek contribution out of his co-stockholders. When such stockholder has paid to any one or more creditors the amount of his entire liability, his liability ceases: Larrabbee v. Baldwin, 35 Cal. 156. |