Whitney v. Hammond , 44 Me. 305 ( 1857 )

Davis, J.

The South Paris Manufacturing Company was incorporated by an act of the legislature, on the sixth day of February, 1836, and became indebted to the plaintiff in March, 1849. This debt remaining unpaid, the plaintiff commenced a suit upon it, and in November, 1855, recovered judgment against the company for the sum of $1358.18. Execution was issued upon this judgment against the corporation, December 26, 1855, which was returned “ in no part satisfied.” An alias execution was issued on the second day of April, 1856, and the same was returned April 21st, with the certificate of the officer thereon, that he had demanded payment of the president, treasurer, and one of the directors, and they severally had refused to pay; that they informed him that there was no corporate property or estate; and that he had made diligent search for and could find no such property to satisfy said execution.

On the 30th day of said April, the plaintiff sued out a writ of scire facias against the defendants, as stockholders in said corporation. This writ was entered, and the defendants appeared, at the August term of this court, in 1856. The action was continued from term to term, until March, 1857, when one of the defendants presented a motion in writing, that the writ be quashed. This motion was sustained by the presiding judge, and the plaintiff excepted.

The first point in the defendants’ motion is, “that the plaintiff’s remedy, if any, is not by scire facias, but by an action of the case, or of debt.”

By the general statutes of this state the stockholders of all corporations are made individually liable for the corporate debts, to the amount of their several shares. The creditor, having recovered his judgment against the corporation, if unable to find corporate property to satisfy the execution, could levy the same upon the property of the stockholders; or he might have an action on the case against them. R. S., ch. 76, ss. 18, 19, 20. The two sections last named were repealed in 1855, and a section substituted providing for an action of scire facias. This act, and the preceding sections of the Revised Statutes, were repealed in 1856, and a new remedy provided. Whether this repeal did not discharge stockholders from all personal liability for corporate debts previously contracted, it is not necessary for us now to determine ; for this repealing act did not take effect until May 11, 1856, and pending actions were saved; and this action was commenced April 30, preceding, and was then pending. And in 1857 an act was passed relieving stockholders in corporations from all personal liability beyond the loss of their stock. This renders the questions submitted to us of little public importance. But the rights of the parties to this suit .remain the same as when it was commenced — all debts previously contracted, and all pending actions, being saved.

This action was commenced when scire facias was the statute remedy; and it is correct in form, unless “ manufacturing corporations” are made an exception by ch. 109 of the statutes of 1844. This act prohibits manufacturing corporations from contracting debts beyond a limited amount, in proportion to their capital invested. By complying with it, the stockholders are relieved from all personal liability for the corporate debts. But if any company contracts debts to aJarger amount, the stockholders are made personally liable for all the debts — to be recovered in the same manner, and within the same time, as is provided in ch. 7 6 of the Eevised Statutes.

It is obvious that the ground of the individual liability of stockholders in manufacturing corporations, under this statute, is, “ that the debts of such companies exceed the limitations aforesaid.” The presumption is, that all corporations comply with the statute; and their violation of it, in actions against the stockholders, is the gravamen of the charge, to be alleged and proved. Whether the plaintiff’s action is well brought in this respect, is not a question raised by the defendant’s motion.

But we are of opinion that the form of the action is right. The statute of 1844 was not designed to repeal the provisions of the Eevised Statutes. The exemption of manufacturing corporations from their operation was only upon certain conditions. And when, by the statute of 1855, the remedy was changed to scire facias, it applied to such manufacturing corporations as should not comply with these conditions of the statute of Í844. All statutes in pari materia are to be construed as they stand together at a given time, and “ are to be taken together, as if they were one law.” Lord Mansfield, in Ailesbury v. Patterson, Douglas, 30. And when the plaintiff commenced his suit, scire facias was the remedy then provided by the Revised Statutes, as amended.

The second point in the defendant’s motion is, “ that the writ was sued out before the return day of the execution.” The statute authorizes the commencement of the action as soon as the officer shall “ascertain and certify upon the execution, that he cannot find corporate property or estate.” R. S., ch. 76, s. 18.

The liability of a stockholder for the debts of the corporation is not analagous to the liability of bail in case of the avoidance of the principal; nor to the liability of a trustee who has been charged. The statute of 1841, R. S., ch. 76, s. 18, 19, did not, like the statute of 1856, require the execution to be returned unsatisfied before any proceedings against the stockholders. It manifestly contemplated that the stockholders should be liable upon the same execution upon which the officer had “ first ascertained and certified that he could not find corporate property or estate.” The certificate must necessarily in such case have been made before the return day. The statute, as amended, in 1855, was not changed in regard to the certificate required. As soon as such certificate was made, and the execution was “ returned unsatisfied as aforesaid,” then the right to an action of scire facias accrued. And this might he done before the return day of the execution. Gross v. Hilt, 36 Maine R., 22.

The third objection is, “that the officer did not make the certificate upon the first execution.” The facts necessary to render the stockholders personally liable, could as well be “ ascertained and certified” upon the second execution as upon the first.

Neither of the objections taken by the defendant being valid, we are of opinion that his motion should have been overruled. The exceptions are therefore sustained.

May, J., having been counsel, did not sit at the hearing of this case.