Fisher v. Parr ( 1901 )

Fowler, J.,

delivered the opinion of the Court:

The American Casualty Insurance and Security Company became insolvent and was placed in the hands of receivers by a decree of the Circuit Court of Baltimore City on the 23rd of November, 1893. By order of Court the receivers have instituted several suits, among others the one now before us, to hold the directors of the company personally liable for negligence in the performance of their duties. While proceedings of this character are not frequent, the law appears to be well settled, in this State at least, that a Court of equity has jurisdiction to entertain a bill filed by a corporation to enforce the personal liability of directors for the negligent performance of their duties, and that the corporation or its receiver is the proper and primary party to complain and call the directors to an account. Booth v. Robinson, 55 Md. 419. The demurrer to the bill therefore is not based upon the theory that a Court of equity has no jurisdiction over such a case as the bill seeks to make, but the jurisdiction is admitted and the objection is that the allegations charging negligence and breach of duty are, (1) not sufficiently definite; (2), that they are, as made, mere inferences of law, and (3), that, independent of a liability for negligence in the performance of their general duties, the directors are not civilly liable for investments made in violation of law.

In order to ascertain what are the foundations and object of this bill let us look at the bill itself. In several of its paragraphs it is alleged that grossly and obviously illegal investments of the funds of the company were made by the directors, whereof every member of the board had constructive, if not actual notice from the records of the corporation itself; secondly, it is alleged that they made investments of its funds not only contrary to law, but that such investments are “ unsuitable to its business, unreasonably hazardous, insufficiently secured, and such as no ordinarily prudent man, endeavoring conscientiously to discharge his duty as a director thereof, would have sanctioned or approved; and the facts relating thereto, and establishing the impropriety thereof, in a commercial sense, could have been ascertained by all of its directors by the exercise of such reasonable vigilance and activity as were imperatively demanded of them by their obvious obligations as such directors.” In a paragraph of the bill, prior to those we have just referred to, it is alleged that the executive committee, composed of five directors, adopted a resolution protesting against loans which had been made to William E. Midgeley, a stockholder, declaring that such loans are prohibited by the laws of this State, requesting that such loans be returned, and that in the future no other loans be made to any stockholder of the company. At a subsequent meeting of the Board of Directors on the 28th of July, 1891, this action of the executive committee was overruled and disapproved of. The members of the board comprising the executive committee thereupon, and because their protest was disregarded, resigned, and in their places the defendants were elected as follows : Messrs. Knott, Littig and Abell on the 28th of July, 1891, and Messrs McDonald and Parr on the 27th of October same year. It is also alleged that at various times after the adoption by the board of the resolution refusing to respect the protest of the executive committee, and before the annual meeting of the stockholders held January 10, 1893, “ many large loans were made by said corporation, through its finance committee, with the sanction and approval of the board of directors, in direct violation of the laws of the State of Maryland and the terms of its charter, and in disregard of the said last mentioned protest of its former executive committee.' ’ Among the loans thus alleged to have been made were loans to ten individuals or firms whose names and the dates of loans are given amounting to over $500,000. It is further alleged that subsequent to and in addition to the loans above mentioned, from time to time other loans giving the dates and amounts, amounting to, at least, an equal sum were made in the same manner and with like violation of the law of the State to the firm of Beecher, Schenck & Co.; that said firm became insolvent and there was a loss resulting of nearly three hundred thousand dollars. In addition to these sweeping and specific allegations the bill further alleges that the several directors who were elected in July and October 1891, and are named as defendants in this proceeding remained as such directors during the full term for which they were respectively elected, or so long as the corporation continued to do business and are responsible to the corporation or its receivers, the plaintiffs, for all losses incurred by it, through, or by reason, or in consequence of loans or investments of its funds made in violation of its charter, and without such due and reasonable regard to its interest as an ordinarily prudent and careful man would have shown in the conscientious discharge of his duties as its director ; and that such among them as ceased to be directors before some or any of the said loans or investments so resulting disastrously to the said corporation has been made, are yet responsible for the consequences thereof, when such subsequent loans were made by the agency or through the procurement of directors or officers of the corporation whose unfitness for their respective offices had been already established by their concurrence in or assent to similar violation of its charter or other dereliction of duty on their part in the past, and who were so elected to the offices which they thus abused without full disclosure on the part of their former associates therein of the facts relating to such previous breaches of duty, which facts were either known to the said retiring directors, or could have been, and would have been ascertained by them, had they made, as it was their duty to make, an ordinarily diligent inquiry into the management and affairs of the corporation during the time of their official connection therewith.” Among the directors who are thus charged with culpable negligence are the defendants in this case. But it must be remembered that the question of fact whether they are thus guilty of the negligent performance of their duties is not before us on this appeal. The sole question now to be considered is whether the bill makes such a case as requires an answer. The demurrer was sustained by the learned Judge below, and the plaintiffs have appealed. ■

We will, then, consider whether the,.biIL_states _a good ground of action arising from an alleged breach of general duty by defendants as directors; and second, whether the loans alleged to have been made to stockholders were made in violation of section 69, Art. 23 of the Code of Public General Laws. First, how'ever, let us briefly refer to the general principles relating to the duty of directors.

Ever since the year 1742, when the leading case of Charitable Corporations v. Sutton, 2 Atk. 400, was decided by Lord Chancellor Hardwicke, the general principles relating to this subject there announced by him have been generally recognized. In the case of Booth et al. v. Robinson et al., 55 Md. 419, Judge Alvey, delivering the opinion of this Court, says that in the English case just cited the liability of directors to corporations for breaches of duty amounting to breaches of trust is first fully and accurately defined. The following language of Lord Hardwicke is quoted: “Those who are named by corporations to have the direction of their affairs are held to the same care and diligence as factors or agents. And they are answerable not only for any fraud and gross negligence which they may be guilty of, but also for all faults that are contrary to the care required of them.” What then is the care which is required of directors ? There ought to be no difficulty about the answer to this question. Directors are selected by the stockholders to manage the concerns of the corporation, and it would seem, therefore, to require no authority, nor indeed more than the bare statement of the fact, that, as Lord Hatherley said in Land Co. v. Lord Fermoy, L. R. 5 Ch. 770, “if the directors sleep instead of being awake, their being asleep could not exempt them from the consequences of not attending to the business of the company.” It is not of course to be expected that the directors shall attend to the current business, but they must, at their peril, give such attention to and so manage the concerns of the company that they may be able at all times to know what their executive officers and other agents, as well as their fellow directors are doing, and how they are acting in respect to the funds and property of the corporation. In Williams v. McKay, 40 N. J. Eq. 189, Chief Justice Beasly said: “I entirely repudiate the notion that this board of managers could leave the entire affairs of this bank to certain committeemen, and then when disaster to the innocent and helpless cestuis que trustent ensued, stifle all complaints of their neglect by saying, we did not do these things and we know nothing about them. * * * The neglectful acts in question cannot be regarded by the Court as isolated instances, for they run through the whole period of the life of the institution, and thus evince a systematic and habitual disregard of the company’s charter, and a very striking indifference to the security of the money held in trust by them.” To the same effect is Wilkinson v. Dodd, 40 N. J. 123; 1 Morawetz Priv. Corp., sec. 522; Horn Silver Mining Co. v. Ryan, 42 Minn. 196. In Williams v. McDonald, 42 N. J. Eq. 392, speaking of the liability of a director, it is said: “It is not essential to prove that he acted fraudulently or that he derived any benefit from the loan ; it is sufficient, if there was culpable lack of prudence or failure to exercise with ordinary care his functions as quasi trustee of the funds of the bank, by which loss was sustained.” It was held in the same case that directors will be held liable if they participated in the prohibited acts which led to the loss or by their negligence their associates were either not restrained or enabled to do those acts complained of. But it is unnecesssary we think to prolong this opinion by a multiplication of authorities to establish the general proposition that directors, managers, trustees of a corporation, by whatever name they may be called, are required to perform their duties with skill and reasonable care, that is to say with “the same degree of care and prudence that men prompted by self interest generally exercise in their own affairs” under like circumstances. They are bound to give such supervision as the situation and nature of the business requires and they will be held answerable not only for fraud, but for all faults that are contrary to the care required of them. Booth v. Robinson, supra; Hun v. Carey, 82 N. Y. 74; 1 Morawetz Priv. Corp., secs. 552 and 557. It is not enough that they employ agents of good character and skill; their acts must be watched and scrutinized with such v'igliance as a discreet business man would exercise over his own affairs. Hun v. Carey, supra. While, therefore, directors might not ordinarily be liable for a single act of fraud or crime of an officer or agent, they certainly should be held liable for a continuous course of illegal and culpably negligent action openly committed and easily detected, as that complained of here is alleged to have been. Cutting v. Marlor, 78 N. Y. 460. We think, therefore, we may safely adopt the language of the Chancellor in Robinson v. Smith, 3 Paige Ch. 222. He said: “I have no hesitation in declaring it as the law of this State that the directors of a moneyed or other joint stock corporation, who wilfully abuse their trust, or misapply the funds of the corporation, by which a loss is sustained, are personally liable as trustees to make good that loss, and they are equally liable if they suffer the corporate funds or property to be lost or wasted by gross negligence and inattention to the duties of their trust."

Recurring to the allegations of the bill, what do we find ? Between June, 1890, and March 13, 189 3 plagas amounting in the aggregate to over a million and quarter dollars were made by the corporation to certain^ of its stockholders,^some of whom were also its directors or officers. The bill specifically alleges that these loans were unsuitable to its business, unreasonably hazardous, insufficiently secured, and such as no ordinarily prudent man’ endeavoring to perform his duties as a director thereof, would have sanctioned or approved. The defendants were elected as directors, according to the allegations of the bill in July and October, 1891, “and remained as such directors during the full term for which they were respectively elected, or so long as the corporation continued to do ’business.” They, or some of them, were, at the very time some of these loans were made, members of the board, and all of them occupied that position subsequent to the period when the board, of which some of their colleagues were members, authorized the illegal loans, which occasioned the protest and resignation of Messrs. Spence, Garey, Charles D. and William A. Fisher and Gill. In Williams v. McKay, supra, Chancellor McGill says, in determining the personal responsibility of directors for losses caused by their negligence, that they may not “relax vigilance and rely entirely upon officers and committees. A man of common prudence and skill * * * would not be guilty of such unguarded confidence. He would from time to time acquaint himself with the manner in which such delegates were performing their duties * * so that he might determine whether the business methods were safe and proper.” It appears from the bill that the alleged irregularities and improper and unsafe investments “were not things of secret occurrence and sudden development. They were such as must have been known to the defendants, if they gave even the most casual attention” to the affairs of the corporation. Robinson v. Hall, 63 Fed. Rep. 222. It seems to be impossible that the defendants, if they faithfully discharged the functions of their office, could have failed to have become acquainted with these alleged transactions. It is not for this Court, as the case is now presented, “to draw improbable deductions from the statements in the bill in order to shield these defendants from answering.” Williams v. McKay, supra. On the contrary, while there can be no doubt that the claim of the plaintiffs to the aid of equity should be stated with reasonable accuracy and clearness, and that if his case be set out in a vague and indefinite manner, a demurrer will be allowed, yet it is well settled that Courts of equity are not “subject to those strict technical rules, which, in other Courts, are sometimes found in the way and so difficult to surmount * * * The remedies here are moulded so as to reach the real merits of the controversy, and justice will be suffered to be entangled in a net of technicalities.” Mewshaw v. Mewshaw, 2 Md. Ch. 12; Ridgely v. Bond, 18 Md. 450; Crain v. Barnes, 1 Md. Ch. 156. It has been often said that “the object of all pleading is to give the parties notice of the ground of claim and defense, and that when this is done the object of the rules of pleading is attained.” Crain v. Barnes, supra.

The fifteenth section of the bill alleges that four of the five defendants were, together with others, re-elected as directors ioth January, 1893, to serve for one year thereafter. By the nineteenth section it is alleged that during that year of their service, námely, in January, February and March of 1893, loans of large sums of money were made by said corporation through its finance committee with the assent of the board of directors in violation of the laws of the State, the terms of its charter and the duty of its directors. The dates and amounts of these loans and the names of the persons or firms to whom made are set forth. By section 20, which we have already quoted, these loans are characterized as unsuitable, unreasonably hazardous, insufficiently secured, and such as no ordinarily prudent man, endeavoring conscientiously to discharge his duty as a director, would have sanctioned or approved, and that all of the directors, thus including these defendants, could, by the exercise of reasonable vigilance and diligence, have ascertained the character of these loans. Nor, as will be observed, are we left to surmise as to whether the defendants were in fact members of the board at the time these loans were made, for it is alleged by section 22 that they “remained as such directors for the full term for which they were respectively elected.”

The demurrer being to the whole bill, and as to all the defendants, it is sufficient to say that it cannot be sustained, and for this reason, four of them are alleged to have been members of the board when the loans set out in section 19 were madé, and the remaining defendant, as well as the other defendants, are, in section 23, alleged to have been guilty of negligence in failing to ascertain and disclose facts which they either knew or could have known which facts demonstrated the unfitness of officers or directors, through whose agency such illegal and improper loans were made, and by which such enormous losses resulted.

We think, therefore, that there is enough alleged in the bill by way of charging specifically violations of duty on the part of all the defendants, to require them all to answer, especially if, as we will presently show, the alleged loans to stockholders are prohibited by law.

But it is suggested that the bill is defective, because it does not allege that all the defendants attended and participated in the various alleged meetings, at which the loans were authorized, and because the extent, if any, to which each director contributed to the loss, is not alleged. In our opinion such allegations are not necessary. It is sufficient to allege that the board of directors, of which the defendants are members, did the acts complained of; and upon demurrer all the directors are prima facie liable. “It is only after answers and evidence and on final hearing that the connection of the several defendants with the transaction in question, and the measure of the responsibility of each can be ascertained and established.” Williams v. McKay, 46 N. J. Eq. 25. And in the case of Charitable Corporation v. Sutton, supra, the Lord Chancellor said: “Another objection has been made that the Court can make no decree upon these persons which will be just, for it is said every man’s * * omission of his duty is his own default, and that each particular person must bear just such a proportion as is suitable to the loss arising from his particular neglect, which makes it a case out of the power of this Court. Now, if this doctrine should prevail, it is indeed laying the axe to the root of the tree." If all are shown to be equally guilty of negligence, all are to be held equally liable. As we have said, this case is now before us on demurrer, but after the defendants have answered and testimony has been taken, each will be held liable for his own negligence, provided the proof justifies such a decree.

Another objection on which the demurrer is based is that the bill in its charges of culpable negligence states not facts, but inferences of law. But we do not think this objection is well taken. The act complained of must be definitely stated it is true, but it is sufficient to say,' that it was such an act as no ordinarily prudent man, &c., would sanction or approve, and that the defendants were negligent in giving their sanction to such acts. A similar or substantially similar method of pleading negligence is universally adopted in this State. And the general rule is well stated in Clark v. Chicago, &c., Ry. Co., 28 Minn. 69; 9 N. W. 76, thus: “ Therefore it has been generally settled by precedent and authority that a general allegation of negligence or carelessness as applied to the act of a party is not a mere conclusion of law, but is a statement of an ultimate fact allowed to be pleaded.” Reference is also made to Chitty on Pleading, 650, &c.

In opposition to the views we have expressed the case most relied upon is that of Fisher et al. v. Graves, 80 Fed. R. 590, which grew out of the insolvency of this same company. The bill in that case makes substantially the same charges of negligence that are made here. But it is apparent from what we have already said that we cannot adopt the conclusion reached in that case, for the demurrer was sustained in spite of the proposition laid down in Briggs v. Spaulding, 141 U. S. 132, that directors will be held responsible for losses resulting from the wrongful acts or omissions of other directors or agents, if such loss is a consequence of their own neglect of duty, either for failure to supervise the business with attention or in neglecting to use proper care for the appointment of agents.” This undoubtedly is the correct rule, and it is founded on fairness and justice. But it does not meet the whole case made by this bill, for the allegation is that losses resulted not only from the wrongful acts of other directors, which could by the exercise of ordinary diligence and prudence have been known to and disclosed by the defendants, but that losses also are alleged to have resulted from their own wrongful acts and omissions, for we have pointed out that the allegation that the alleged wrongful acts were committed by the board are, upon demurrer, to be taken as having been alleged to have been committed by each member of the board. Wilkinson v. Dodd, supra; Williams v. McKay, supra. But in addition to the above quotation the Supreme Court said also upon this subject in the same case: “ Without reviewing the various decisions on the subject, we hold that directors must exercise ordinary care and prudence in the administration of the affairs of a bank, and that this includes something more than officiating as figure-heads. They are entitled * * * to commit the * * business to duly authorized officers, but this does not absolve them from the duty of reasonable supervision nor ought they be permitted to be shielded from liability because of want of knowledge of wrong doing, if that ignorance is the result of gross inattention.” It must be remembered that the case of Briggs v. Spaulding, supra, relied upon both by the learned Court in Fisher v. Graves, supra, and by the learned counsel for defendants in this case, was heard not upon demurrer but upon bill, answers and testimony. The principles of law announced in that case, we think, are those we have relied upon here. It is true the directors in that case were exculpated on the facts of that case as disclosed by the testimony — but the Court at the same time most emphatically declared that a director cannot excuse himself because of a want of actual or personal knowledge of wrong doing of other officers or directors if such ignorance is the result of gross inattention on his part.

It has been suggested that the demurrer should be sustained, if for no other reason, because of the absence of necessary .parties, to wit, certain directors who are not residents of this State.

The bill alleges that the defendants constitute all of the board of directors who reside in Maryland, and that all the other members of the board are non-residents of this State, except Henry W. Slocum, who is dead, but who was a nonresident in his life-time and whose personal representatives are such non-residents now. If such an objection be valid the result would be that no suit could be maintained, for the board is composed of persons who reside respectively in New York, Illinois and Maryland. According to the contention, the Courts of this State have no jurisdiction unless the New York and Illinois directors are'made parties to the suit here. And if suit should be brought in the Courts of New York, the Maryland and Illinois directors must, according to the same contention, be parties there. But how could our Courts get jurisdiction of the non-residents ? They cannot be summoned, nor will an order of publication go against them in a suit like this, which, as we have seen, is brought to enforce a personal and individual liability. They cannot be summoned, for such process does not go beyond the limits of the State. Nor will an order of publication avail, for such process applies only to proceedings in rem, while this is a proceeding in personam, and the decree, if any can be entered, must be of the same nature. In the case of Worthington v. Lee, 61 Md. 542-543, the nonresident defendants were “ only served by publication ” and it was said that “it is essential to the effective character of the decree that the parties against whom it is made be within the jurisdiction and reach of the Court. * * * * Being a mere personal decree, to have effect beyond the jurisdiction of the State where it is rendered, it must be founded either upon personal service of process or upon a voluntary appearance.” In Glenn v. Williams, 60 Md. 115, it is said, Judge Alvey delivering the opinion of the Court, “that in a proceeding where the defendants are sought to be bound by a judgment or decree in personam, no constructive notice by publication, or actual service of process beyond the State will have any effect to give the Court jurisdiction over the party. Pennoyer v. Neff, 95 U. S. 714.” See also Grover v. Radcliff, 66 Md. 517; Miller's Equity Procedure, sec. 153 and notes. By the Act of 1896, ch. 38; (Art. 16, sec. 114, Supplement to Code, 1890-1900, p. 66), it was provided that if a copy of the order of publication be served on a non-resident as therein directed it shall have the same effect as a publication whether such non-resident be within or beyond the limits of the United States. It is not supposed that it was intended by this enactment to give equity Courts jurisdiction of non-residents in proceedings in personam, but that, as was said in Long v. Home Ins. Co., 114 N. C. 469, the method of service prescribed by the Act of 1896 “is a convenient and probably a more sure way of bringing home to the non-resident the notice which formerly was made solely by publication * * * * but that the service of process in another State is valid only in those'cases in which publication of the process would be valid.” As we have already said, however, the actual service of process beyond the limits of the State cannot give our Courts jurisdiction over the persons of non-residents in actions in personam. Glenn v. Williams, supra; Worthington v. Lee, supra; Miller’s Equity, pages 157—159. We think, however, the jurisdiction of a Court of equity is fully recognized and declared in the case of Booth v. Robinson, supra, to entertain a bill against a portion of the directors individually. In Fisher v. Graves, supra, cited and relied on by the defendants, the proceedings was against some of the directors, but no objection was ever raised to this feature of the bill. In Atty.-Genl., The Corporation of Poole, 1 Craig & Phillips, 28, it was urged that a part of the governing body of a corporation could not be proceeded against in the Court of Chancery, but that all who took part in the transaction complained or should be co-defendants, but Lord Chancellor Cottenham held to the contrary. He said “ Upon this point Lord Hardwicke's. authority in the Charitable Corporation case is of the highest value. It was urged that, as the injury had arisen from the misconduct of many, each ought to be answerable for so much only as his particular misconduct had occasioned; but Loro Hardwicke said * » * * * if upon inquiry, there should appear to be a supine negligence in all of them, by which a gross, complicated loss happens, I will never determine that they are not all guilty, nor will I ever determine that a Court of equity cannot lay hold of every breach of trust, let the person guilty of it be either in a private or public capacity.” In cases of this kind, continues Lord Cottenham, “ where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no contribution between them, and each case is distinct, depending upon the evidence against each party. It is, therefore, not necessary to make all parties who may more or less have joined in the act complained of.” The Lord Chancellor also cites the case of Atty.-Genl. v. Brown, 1 Swan. 265, in which he says Lord Eldon overruled a demurrer based upon a similar objection. In Wilson v. Moore, Sir John Leach, M. R., reiterated the general principle that all parties concerned in a breach of trust are equally liable and that there is, in such case, no primary responsibility. He held, therefore, that the plaintiffs had a right to proceed against such of the parties guilty of the act complained of as they think fit.” See also Stainbank v. Bentley, 9 Sim. 556; 2 Perry on Trusts, sec. 877, note 4. And so we held in Duckett v. Bank, 86 Md. 403. “Every violation by a trustee of a duty which equity lays upon him, whether wilful or fraudulent or done through negligence, or arising through mere oversight or forge fulness, is a breach of trust. There is such instance no primary or secondary liability as respects the parties guilty of or participating in the breach of trust, because all are equally amenable.” That directors of corporations are trustees of the bodies represented by them, and as such come within the rule guarding or restraining .transactions between trustees and cestuis que trustent is a familiar principle. Coal Co. v. Parish, 42 Md. 598; Booth v. Robinson, supra.

Without further discussion of this question, we conclude .that the bill here demurred to states a case which the defendants will be required to answer, and that the decree sustaining ¡the demurrer to the bill must be reversed.

We might rest our decision upon what we have said above; but as the case must be reversed for the error we have pointed •out and remanded, it will be necessary to dispose of the remaining question, which is, whether the loans alleged to have been made by the directors to stockholders are for that reason in violation of law and the charter of the corporation.

By section 69, Article 23 of the Code of Public General Laws, it is provided that no loan of money shall be made by any such corporation to any stockholder therein “ and that if any such loan shall be made to any stockholder, the officer or officers who shall make it, or who shall assent thereto, shall be jointly ancf severally liable for all the debts of the corporation contracted before the making of the said loan, to the extent of double the amount of said loan. ” It further provides that this section shall not apply “ to any building or homestead association or any association for the loan of money on real or personal property, or to any savings institution. ” It is clear that the words “ any such corporation ” mean any and every corporation incorporated under Art. 23 — except the three classes mentioned in the above exception. The question, therefore, is, whether this company is included within the exception, and may, therefore, lawfully make loans of money to its stockholders on real and personal property ? The contention is that it is within the exception, because it is an association of the kind described in the exception, inasmuch as (1) it was incorporated under section 113, Article 23 of the Code which gives power to the company “ to advance money, securities and credits upon any property real, personal or mixed on such terms as shall be established by the charter or by-laws of such corporation;” (2) because even if the prohibition in section 69 prohibiting loans to stockholders might otherwise apply to this corporation it is excepted out of that section by the plain language of the exception itself, it being an “ association for the loan of money on real and personal property.” Counsel on both sides have argued very ingeniously to support their respective views, but the meaning and scope of the exception, which after all is the question to be decided, appears to us to be if not apparent, yet measurably so. It is conceded that the only language in the exception about which there can be any difficulty is the phrase “ any association for the loan of money.” When these words are read in connection with those which precede them, we think it is clear the Legislature intended to declare a general policy for Maryland corporations incorporated under Qur general law, that all of them, all such corporations, should be restrained, from loaning the corporate money to stockholders, except building and homestead associations, and associations which like 'them are formed for the purpose of loaning money to members or stockholders. The importance of such a provision is manifest. The fact that such loans can only be made on the security of real or personal property we all know would, in many cases, be very little protection to the corporation or its creditors if the directors, the finance or executive committee or their friends, should happen to be the borrowers. In such cases the “ real or personal property” offered as security would not be closely scrutinized, and the chief reliance would be placed on the personal security of the borrower. If, as contended, every corporation, no matter for what other or how many other purposes it may be incorporated, because it is also authorized to loan money on real or personal property, is placed beyond the salutary provisions of section 69, that section will have but a very limited if any application whatever. Indeed it will be in the power of all corporations formed under our general law to render that important section absolutely nugatory, because whenever the stockholders and directors prefer themselves to borrow the money of the company rather than to use it for some more legitimate purpose, as for instance, to pay creditors, they may have their charter amended, if not originally so drawn, so as to authorize loans on real or personal property. The suggestion that this obvious result would not follow, because corporations would not be willing to limit their power to lend except on real or personal property is, we think, without force, for it is not possible to say what corporations will or will not do, if its managers are unfaithful and are willing to sacrifice corporate interests for their own advantage. Nor would it necessarily follow that such a provision would so limit the loaning power, for this result could be obviated by a further provision.

Reliance is also placed bn the contention that by section 113, Article 23, under which it is claimed this company was incorporated, authority is given “to advance money, securities and credits upon any property real, personal or mixed.” In the first place it is contended by the defendants that section 69 cannot apply to this company because that section refers only to corporations, the creation of which is antecedently provided for, and can have no application, therefore, to companies organized as this was under the subsequent section 113. But, as we have said, it is apparent that section 69 applies to all corporations formed under Article 23, except those excluded by the exception. Are corporations formed under section 113 so excluded? If so, they must be because they are in the class of corporations mentioned in the exception in sec. 69 — that is to say associations “for the loan of money on real or personal property.” We have already said, however, that associations thus designated are those, which like building and homestead associations, are formed for the purpose, or principally for the purpose, of loaning money to members and stockholders. If this be so, of course, this company is not within the exception, for, assuming that there is no distinction to be drawn between the word loan as used in section 69 and the word “advance” as used in section 113, the advance or loan of money which this company is authorized to make by section 113 and by its charter, is only one of the many, and by no means the principal purpose of its creation. But we think there is a distinction and a wide one, between these words as used in the two sections mentioned. It may be conceded that if the question was, what is the difference between loaning and advancing money on real or personal property, the answer would be, there is no substantial difference. But that is not the question before us. The question we have is, whether the two words as used in the two sections are identical in meaning and effect. We think they are not. The words “loan of money” as used in the exception contained in section 69 must be held as applicable to every corporation incorporated under the general law, except corporations formed for the purpose or whose principal purpose is to loan money to members and stockholders — otherwise, as we have shown, this most important and salutary provision will be absolutely nullified. But in addition to this view we think it is apparent from the plain language of the exception that only corporations which are authorized to loan money on real or personal property are excepted from the prohibitions of sec. 69. This company, however, both by sec. 113, under which it is claimed to bé incorporated, and by the terms of its charter, is authorized to “advance money, securities and credits upon any property real, personal or mixed.” It would seem to be clear, therefore, that these two sections refer to different classes of corporations. In our opinion the exception in sec. 69 refers to corporations, such as building and homestead and other corporations, the principal business of which is to loan money on the security therein mentioned, while section 113 contemplates corporations of an entirely different character, such as insurance, guarantee and storage companies, incorporated thereunder, which are authorized to. make advances on real property committed to their charge or on personal property deposited or stored with them.

(Decided January 16, 1901.)

Our conclusion, therefore, is that the loans, if so made to the stockholders, as alleged in the bill, were made by the defendants not only in violation of their general duty as directors, but were also made in violation of law. It only remains to be said that, in this proceeding, it is not claimed that the penalty prescribed by sec. 69 for its violation can be recovered. Its provisions are relied upon merely to furnish the standard of duty, and the evidence of wrong doing. Briggs v. Spaulding, 141 U. S. 668.

The questions of limitations we presume is not relied upon by defendants, as it was not discussed either in their briefs or oral arguments.

Decree reversed with costs, and cause remanded for further proceedings.