Brayton v. New England Coal Mining Co. , 77 Mass. 493 ( 1858 )

Bigelow, J.

The answer of Field states no sufficient ground for issuing a supersedeas of the execution which is to issue against the corporation, as to him or his property. The only ground on which he can claim exemption in this action from liability to a seizure or levy on the execution is by showing that he was not a stockholder of the corporation, liable for their débts. The fact that there are officers possessed of property sufficient to pay the judgment against the corporation at the time when the liability of the stockholders is to be determined is wholly immaterial. The plaintiff is entitled to an execution against those who are stockholders liable for the debts, and who have been duly summoned in the action. This execution he can levy on the stockholders, if no property of an officer can be found to satisfy it. An officer of a corporation may have property liable to be taken on execution at the time when the liability of the stockholder to the execution is to be determined in the action against the corporation, but it may be conveyed away or destroyed before the execution is issued, so that the creditor cannot levy on or seize it. In such case- he has a right to take the property of the stockholder. So that the material question is, not whether the officers were possessed of sufficient property to pay the debt when the action is pending in court, but when the execution is to be served. Demurrer sustained.