Hadley v. Russell , 40 N.H. 109 ( 1860 )

Sargent, J.

The writ in this suit is dated March 21, 1859. Chapter 1962, Pamphlet Laws, approved June 27, 1857, which ‘took effect from its passage, and repealed all acts inconsistent with its provisions, provides, “that all legal proceedings hereafter commenced against any individual stockholder in any corporation in this State for the collection of a debt against said corpoi’ation, shall be by a bill in chancery, and not otherwise.” Applying this statute to the ease before us, we conclude that this ■action of assumpsit, being brought against an individual stockholder of a railroad corporation, for the collection of a debt against said corporation, in its present form at least, cannot be maintained ; nor would an action of debt be more successful. But by the agreement of the parties, if the court shall be of opinion that a bill in chancery could be maintained by this plaintiff against said defendant, then judgment is to be rendered for the plaintiff, otherwise for the defendant. The case finds that there were other stockholders in this corporation beside the defendant, at the time when the note in controversy was given to this plaintiff. These other stockholders are or may be all liable in some way, for this debt; and should this defendant be held liable in this case, he has his remedy over upon them for contribution. And in equity the rule is that all persons materially interested in the subject ought generally, either as plaintiffs or defendants, to be made parties to the suit, or ought, by service upon them of a copy of the bill, to have an opportunity afforded of making themselves active parties in the cause, if they should think fit. 1 Ban. Ch. PI. & Pr. 240.

It is necessary that the plaintiff should bring regularly before the court, either as co-plaintiffs with himself, or as defendants, all persons so circumstanced, that unless their rights were bound by the decree of the court they might cause future molestation or inconvenience to the parly against whom the relief is sought. Burnham v. Kempton, 37 N. H. 491. And in addition to these general principles, applicable in equity, it is expressly held that in all those cases where the rights of third persons would not be directly affected by the decree, if obtained, but where, in the event of the plaintiff succeeding in his object against the principal defendant, that defendant will thereby acquire a right to call upon such third persons, to reimburse him the whole or part of his demand, in such cases the court, in order to avoid a multiplicity of suits, require that the parties, so consequentially liable' to be affected by the decree, shall be before the court in the first instance, in order that their liabilities may be adjudicated upon and settled by one and the same proceeding. Story Eq. PL, secs. 173,180; Wiser v. Blackley, 1 Johns. Ch. 437; Dan. Ch. Pl. & Pr. 329.

To be sure, if this were a bill in chancery, this defect might be remedied by amendment, so as to make the other persons interested parties to the bill. But the process in this case is susceptible of no such amendment; and as judgment could not be rendered against this defendant alone upon this process, even if it were a bill in chancery, upon the facts stated in the case, the inevitable conclusion seems to be, according to the agreement of the parties, that there must be

Judgment for the defendant.