81. Enforcing Personal Liability.-An action to enforce the personal liability of stockholders is in many cases to be considered as founded on that vestige of the relation of partnership between the members of the company which the charter or general act failed to remove: Corning v. McCullough, 1 N. Y. 47: Conant v. Van Schaick, 24 Barb. 87; Bailey v. Banker, 3 Hill, 188. 82. Form. For a form of complaint against stockholders of a corporation, see Herkimer Co. Bk. v. Furman, 17 Barb. 116; and Witherhead v. Allen, 28 Id. 661.

83. Individual and Personal Liability.-Each stockholder shall be individually and personally liable for his proportion of all the debts and liabilities of the company contracted or incurred during the time that he was a stockholder. Civil Code, sec. 322; French v. Teschmaker, 24 Cal. 543; Mok. Hill Canal Co. v. Woodbury, 14 Cal. 265. The act of the Legislature making each stockholder liable for the debts of the corporation, corresponds with the requirements of the Constitution, Art. iv. sec. 36: Larrabbee v. Baldwin, 35 Cal. 166.

84. Insolvency.-It is not necessary to aver that the corporation was insolvent: Perkins v. Church, 31 Barb. 84.

85. Judgment.-The plaintiff must prove not only a judgment and execution unsatisfied, but also that the judgment was upon a debt for which the corporators were individually liable: Conant v. Van Schaick, 24 Barb. 87. It is otherwise in California. See Civil Code, sec. 322; see, also, Prince v. Lynch, 38 Cal. 528. As to whether a stockholder is liable for the cost of the judgment against the company: Bailey v. Banker, 3 Hill, 188; Andrews v. Murray, 9 Abb. Pr. 8.

86. Judgment not a Contract.-Though a stockholder is individually liable for debts contracted while he was a stockholder, yet a judgment recovered against the corporation while he is a stockholder, upon a contract entered into before he became such stockholder, is not a contract within the meaning of the act rendering such stockholder liable: Larrabbee v. Baldwin, 35 Cal. 156. And proof of a judgment against a corporation does not show when the debt was contracted. Id.

87. Liability, Nature of.—The individual liability of a stockholder is a constituent element in the artificial life of the corporation, made so by the author of its creation, and that life can no more exist under the Constitution without this element than a natural person can exist without an element made indispensable to his existence by the laws of his nature: French v. Teschmaker, 24 Cal. 545. A stockholder is primarily liable. The same identical act which casts the liability on the corporation also casts it on the stockholder: Prince v. Lynch, 38 Cal. 528.

88. Liability, how Pleaded. In an action against stockholders, the grounds on which they are individually liable must be shown: Geery v. N. Y. and Liverpool S. S. Co., 12 Abb. Pr. 268. And in pleading the amount of a stockholder's liability, it must be averred that such stockholder held an amount of stock equal to the amount for which he is sought to be held liable: Chambers v. Lewis, 16 Abb. Pr. 433.

89. Liability Qualified. The personal liability of stockholders is an original liability; and an action against them is upon a contract made by them in a qualified corporate capacity; but where the corporate capacity is

not thus qualified, the members or officers are not thus liable as original or principal debtors, by reason of something imposed on them by the statute, and the action must be upon the statute, to recover a debt in the nature of a forfeiture: Bird v. Hayden, 2 Abb. Pr. N. S. 61.

90. Liability Regulated by Statute.-The Constitution leaves to the Legislature the power to regulate the liability of stockholders, and to prescribe the rule by which each stockholder's proportion of such debts shall be ascertained: Larrabbee v. Baldwin, 35 Cal. 155; citing French v. Teschmaker, 24 Cal. 539. The liability of a stockholder is not contingent upon a recovery against the corporation: Davidson v. Rankin, 34 Cal. 503. Such liability is primary, and is not affected by a suspension of the remedy against the corporation: Young v. Rosenbaum, 39 Cal. 646; Prince v. Lynch, 38 Id. 528.

91. Measure of Liability. To determine how much any one stockholder is liable to pay to a corporate creditor, it is necessary to find the whole amount of the indebtedness of the corporation, created while he was a stockholder; and any one creditor whose demand is large enough, may have judgment for the stockholder's proportion of such corporate debts: Larrabbee v. Baldwin, 35 Cal. 156.

92. Uncanceled Debts.-There is nothing in the Constitution that renders a man who becomes a stockholder personally liable, by so doing, for his proportion of all the uncanceled debts of the corporation, created before he became a stockholder: Larrabbee v. Baldwin, 35 Cal. 156.

93. Parties in Equity.-A stockholder may sue in equity for an account making the corporation and trustees alone parties—no objection being taken that all the stockholders were not parties: Neall v. Hill, 16 Cal. 145. One stockholder cannot recover against another a debt due from the company: Bailey v. Banker, 3 Hill. 188. As between the corporation and its stockholders, the corporate property is the fund primarily liable for the corporate debts: Prince v. Lynch, 38 Cal. 528.

94. Promissory Note.-It is unnecessary for the plaintiff to aver the facts showing for what the note was given: Gebhard v. Eastman, 7 Minn. 56.

95. Statute Liability.-In an action against stockholders of a corporation, to charge them with a statute liability for a debt of the corporation, the complaint must show that the defendants were such stockholders at the time at which the debt was contracted: Young v. N. Y. and Liverpool U. S. Mail S. S. Co., 15 Abb. Pr. 69; see, also, Larrabbee v. Baldwin, 35 Cal. 155. It is not necessary to aver that the corporation was insolvent: Perkins v. Church, 31 Barb. 84; 34 Cal. 503.

96. Stockholders, Who are.-One who never accepts, but refuses to accept any stock in a corporation, is not a stockholder, even though the secretary enters his name in the books as such, and the stock-book of the corporation is not admissible in evidence in an action by a creditor of the corporation against one claimed to be a stockholder, for the purpose of proving that he is such stockholder: Mudgett v. Horrell, 33 Cal. 25. A stockholder in a corporation is a party: 28 Barb. 503.

97. That Defendant was a Stockholder.-The complaint must show that defendant was a stockholder at the time the debt was contracted: Young v. N. Y. and Liverpool Steamship Co., 15 Abb. Pr. 69. And an averment to this effect in the words of the charter is sufficient: Freeland v. MeCullough, 1 Den. 414.

98. Transfer of Stock.-Transfers of stock which have not been entered on the books of the company are valid as against all the world, except subsequent purchasers in good faith without notice: Weston v. Bear R. and Aub. Wat. and Min. Co., 5 Cal. 186; S. C. 6 Id. 425; and Naglee v. Pacific Wharf Co., 20 Cal. 529; construing Stat. of Cal. 1853, p. 87; People v. Elmore, 35 Cal. 653.

[TITLE.]

No. 53.

xii. The Same; Shorter Form.

The plaintiff complains, and alleges:

I. That at the times hereafter mentioned, the

Company was a corporation created by and under the laws of this State, organized pursuant to an act entitled “An Act" [title of act], passed ..

.......

, 187., and the acts

187., said company,

amending the same, and supplementary thereto. II. That on the .... day of by its agent duly authorized thereto, made its promissory note dated on that day, a copy of which is hereto annexed, and marked "Exhibit A."

III. That on the day of ..., 187., in an

.......

action

in the District Court of the ..... .. Judicial District, for the County of ............, to recover the same from said company, judgment was rendered by said court against said. company, in favor of the plaintiff for .... ... dollars, being ... ...... dollars, the amount due thereon, with interest, amounting to ........ dollars, and costs.

IV. That execution thereon was thereafter issued against said company, and returned wholly unsatisfied.

V. That at the time said debt was contracted, the defendant was a stockholder of said company, holding stock therein to the amount of ........ dollars, being ...... shares of the par value of dollars each; and that he still

is such stockholder therein.

[Demand of Judgment.]

[Exhibit "A" Annexed.]

99. In California it is not necessary to obtain judgment against the corporation before bringing suit against a stockholder. And if the promissory note was given for a pre-existing debt, it will be necessary to prove that the defendant was a stockholder at the time the original liability accrued. See authorities cited in preceding paragraphs.

The plaintiff, as such executor, complains, and alleges: I. [State cause of action.]

II. That the said C. D. in his lifetime made and published his last will, whereby he appointed the plaintiff executor thereof.

III. That on the....... day of..

at.....

the said C. D. died.

.........

IV. That on the......day of

187..,

187., at...

said will was proved and admitted to probate, in the Probate

187.,

V. That thereupon on the........ day of........., letters testamentary were issued on the said will to the plaintiff, by the Probate Judge of said County.

VI. That thereupon the plaintiff duly qualified and entered upon the discharge of his duties as executor, and that said letters testamentary have not been revoked.

[Demand of Judgment.]

1. Action, how Brought.-As to when an action by an executor should be brought in a representative, and when in an individual capacity, see Lyon v. Marshall, 11 Barb. 241; Merrill v. Seaman, 6 N. Y. (2 Seld.) 168; Mowry v. Adams, 14 Mass. 327; Talmadge v. Capel, 16 Id. 73; Biddle v. Wilkins, 1 Pet. 692.

2. Appointment.—A complaint averring that the plaintiff has been duly appointed and qualified by the Surrogate of New York to act as the "sole executor of A. B., deceased," is not sufficient in an action to recover a demand due to the estate of the plaintiff's testator: Forrest v. Mayor of N. Y., 13 Abb. Pr. 350. A will contained these words: " I leave the sum of one sovereign each to the executor and witness of my will, for their trouble in seeing that everything is justly divided," but did not name any executor. Beneath the signature of the testator, and opposite the names of the attesting witnesses, were the words, "executors and witnesses:" Held, that there was no appointment of executors. Woods' Law Rep. 1 P. and D. 556.

3. Appointment, how Alleged. The allegation that plaintiff was

"duly appointed," was held to be not insufficient, but indefinite, in Cheney v. Fisk, 22 How. Pr. 238; People v. Walker, 23 Barb. 305; see, also, 23 Id. 143; People v. Ryder, 2 Kern. 433. The time and mode of appointment were held essential in Dayton v. Connah, 18 How. Pr. 326; Sheldon v. Hoy, 11 How. Pr. R. 11; Forrest v. Mayor, 13 Abb. Pr. 350; Barfield v. Price, 40 Cal. 535. 4. As Executor.-In New York, the word "as "is essential in the title to the action, nor can it be easily replaced by any other word. Thus, a declaration which invariably and more than a dozen times mentioned the plaintiff as "the said Sarah, executrix as aforesaid," closing with profert of letters testamentary, was held to be fatally defective under the old practice: Henschall v. Roberts, 5 East. 151, 154. The same rule has been settled in the Court of Appeals. Compare Merrit v. Seaman, 6 N. Y. (2 Seld.) 168, with Smith v. Levinus, 8 N. Y. (4 Seld.) 474; and see, also, Gould v. Glass, 19 Barb. 185; Sheldon v. Hoy, 11 How. Pr. 14; Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 241. If the plaintiff's character is thus stated in the title, it is not necessary to repeat it, but he may afterwards be called "the plaintiff.” See Stanley v. Chappell, 8 Cow. 235.

5. Authority to Sue.-An executor or administrator may bring suit without special authorization of the Probate Court: Halleck v. Mixer, 16 Cal. 579, at any time before a decree of distribution is made by the Probate Court: Curtis v. Sutter, 15 Cal. 259; Teschemacher v. Thompson, 18 Cal. 20. As all property, real and personal, goes into the hands of the administrator, he is a necessary party to all suits affecting it: Harwood v. Marye, 19 Cal. 87. See, also, secs. 1581 to 1591, Code, C. P.

6. Essential Averments.-The complaint should state: 1. The death of testator; 2. His leaving a last will and testament; 3. The appointment therein of the plaintiffs as executors; 4. The probate of the will; 5. The issuance of letters testamentary thereon to the plaintiffs: Thomas v. Cameron, 16 Wend. 579, and their qualification and entry upon the discharge of their duties as executors: Halleck v. Mixer, 16 Cal. 574: Barfield v. Price, 40 Cal. 535.

7. By whom Appointed.-Executors and administrators can sue and be sued as such only in the state in which they are appointed; therefore the averment by whom letters were granted is essential: Morrell v. Dickey, 1 Johns. Ch. R. 156; Williams v. Storrs, 6 Id. 353; Vroom v. De Horn, 10 Paige, 550; Vermilyea v. Beatty, 6 Barb. 429: Warren v. Eddy, 13 Id. 23; Gulick v. Gulick, 21 How. Pr. 22; Robins v. Wells, 26 Id. 15. It would appear that in New York a foreign executor may foreclose a mortgage in that State, without taking out letters there: Averell v. Taylor, 5 How. Pr. 476.

8. Jurisdiction to Appoint.-The Surrogate's (Probate Court) jurisdiction is all that need be shown: Emery v. Hildreth, 2 Gray, 228; Bloom v. Burdick, 1 Hill, 134. And this is sufficiently pleaded by the use of the word "duly." The executor's authority to sue depends solely upon the letters testamentary: Thomas v. Cameron, 16 Wend. 580.

9. Parties. The executor, administrator, or trustee may sue without joining the party beneficially interested: Code C. P., sec. 369. So, in ejectment: 18 Cal. 11. Or in foreclosure of mortgage: Burton v. Lies, 21 Cal. 87. So, also, in actions generally. See Parties, ch. 4.

10. Profert of Letters. Representative capacity of the executor or administrator should be averred: and it is not necessary to make profert of