ment, the Court will inquire into his liability, and will hold him personally liable if the charter declares him so. It is no objection to the remedy by attachment, that the charter gives another remedy. A party, to whom an action is thus given, is not confined thereto, but may resort to any remedy known to the law in any place in which the debtor or his property may be found.2

$ 6. But however strictly the personal responsibility imposed upon the members of an incorporated company may be construed against creditors, there is one point which is very clear, and that is, no member can exonerate himself from his liability, and defeat the claims of creditors, by transferring his interest to a bankrupt. This was expressly admitted by the court in the case just cited, who said that no principle was better settled, than that a conveyance made, with an intention to defeat a creditor, is void. The members of a corporation, therefore, who would be liable, if they continued members, to the creditors of the corporation, may still be treated as members, if they have disposed of their interest with the view merely of exonerating themselves from their personal responsibility. In the case of Marcy v. Clark, in Massachusetts," the question arose as to whether M. was a member of the company at the time the goods were taken. It appeared, that before the execution was levied, he had made a bill of sale of his share to one E., without adequate consideration, and for the express purpose, as found by the jury, of avoiding his liability to the execution as a member of the corporation. It was contended that he had a right thus to shift the burthen from himself, and to give away his shares, if he chose. But Parker, C. J. said; "It is very true, every man may dispose of his own property as he pleases; but always subject to the

'Ex parte Van Riper, 20 Wend. (N. Y.) R. 614.

Ibid.

17 Mass. R. 330. Under the Massachusetts Statute of 1817, even a bona fide transfer of shares will not relieve the member from any debt which occurred while he was a member of the corporation. Ibid. 335.

equitable principle, that he is not to injure another by his gift." And he entertained no doubt, that a transfer of an interest in the stock of a corporation for the debts of which the members were personally liable, for the purpose of defeating the creditors of the corporation, was fraudulent and void. If it were otherwise, he said, the wholesome provision of the statute for the security of creditors of the company, would be unavailing, at the very time, and in the very circumstances, in which it was intended to operate. The same has been held in New York.' And it has been held, in Kentucky, that if one subscribes for stock, in the name of minors, for the purpose of avoiding personal responsibility in case the corporation becomes insolvent, and receives the benefit of the stock, he will be liable for the corporate debts."

$7. It may be proper to refer to the remedies, which the creditors of an insolvent incorporated company have against the members of the company, where a personal responsibility has been imposed by an express act of the legislature. The members in such a case, if their obligation is joint, stand in the same relation to creditors, as the individuals who compose a simple copartnership. The creditors of the latter, although they have a remedy at law, yet if that remedy is defective, may call in aid the interference of a court of equity."

'Moss v. Oakley, 2 Hill (N. Y.) R. 265.

Roman v. Fry, 5 J. J. Marsh. (Ky.) R. 634.

See ante, pp. 560, 561; Wood v. Dummer, 3 Mason (Cir. Co.) R. 308; Bailey v. Bancker, 3 Hill (N. Y.) R. 188. The common law, though it professes to adopt the lex mercatoria, has not adopted it throughout, in what relates to partnerships in trade. It holds, indeed, that although partners are in the nature of joint tenants, there shall be no survivorship between them in point of interest; yet with regard to partnership contracts, it applies its own peculiar rule; and because they are in form joint, holds them only to produce a joint obligation, which consequently attaches exclusively upon the survivors. By the general mercantile law, however, a partnership contract is several as well as joint, and courts of equity, adopting, to its full extent, that law for their guidance, have considered joint contracts, which are in the nature of partnerships, as standing upon a different footing from ordinary

The principal question sought to be presented in Bank of Poughkeepsie v. Ibbotson,' was whether an action at law would lie to charge the stockholder personally liable. The statute imposing the liability provided, that for all the debts. due and owing by the company at the time of its dissolution, the persons then composing it shall be individually liable to the extent of their respective shares in the stock. The dissolution sub modo, or resulting from the fact of insolvency, being proved, and the liability of the stockholder, as declared by the act, becoming absolute, the court saw no valid objection to the enforcement of it in a court of law. The ground and the extent of the liability were distinctly given; and although it is true, that the stockholder may be subjected to several suits, yet he can be charged only to the extent of his stock. An action of debt lies in favor of the creditor against the stockholder, as by the holder of a dishonored bank bill, in a case where the members of an incorporated bank are made personally liable for the amount of their stock.2

The same rule, as to an election of legal and equitable remedies, will apply where the members are individually liable, that is applied where they are made jointly liable. That is, although a creditor may enforce a contribution at law, yet as he may not be able to do it without numerous suits, his case is one of equitable jurisdiction. The creditors, if more than one, may also, if they apprehend a deficiency in the funds, enforce in equity a pro rata distribution, but this must be at their election. Any difficulty that may exist on the part of a stockholder in protecting himself at law beyond the statute liability, has never been suggested as a ground for proceeding in equity.❜

joint contracts; and have ascribed to them a several as well as joint operation. Gow on Part. 232.

'Bank of Poughkeepsie v. Ibbotson, 24 Wend. (N. Y.) R. 473.

* Ballard v. Bell, 1 Mason (Cir. Co.) R. 243.

Bank of Poughkeepsie v. Ibbotson, sup. ; Briggs v. Penniman in error, 8 Cowen (N. Y.) R. 392. See also Slee v. Bloom et al. 19 Johns. (N. Y.) R. 456; Wood v. Dummer, 3 Mason (Cir. Co.) R. 308.

8. Before we conclude the present chapter, it may be proper to refer to the distinction, that exists between the personal liability by the common law of members of private corporations, and the members of public quasi corporations.' With respect to the former, we have already shown that, by the common law, no individual responsibility attaches to the members for the corporate debts; though the corporation may be sued for the recovery of them. A very different rule prevails with regard to the inhabitants of any districts, as counties or towns, incorporated by statute, which come under the head of quasi corporations; for against them no private action will lie, unless given by statute; and if a power to sue them is given by statute, each inhabitant is liable to satisfy the judgment.2

In a case which came before the Court of Errors of the State of New York, it was said by Tallmadge, President, "that overseers of the poor must be made liable in their official or corporate capacity, or be charged as individuals. The action must be shaped accordingly, and be supported by sufficient proof. For official neglect or misconduct they may be indicted; but they never can be prosecuted for official liabilities, and be rendered individually responsible for the judg ment, in their property and persons. This distinction between individual and official liability must be regarded; and will regulate the form of the proceedings, and the proof necessary to sustain the action. The judgment in the one case is against

2

1 As to the meaning of quasi corporations, see Introduction, p. 17, § 5.

* 2 Kent Comm. 221; Merchants Bank v. Cook, 4 Pick. (Mass.) R. 414. Though quasi corporations are liable to information or indictment for a neglect of a public duty imposed on them by law; yet it is settled in the case of Russel et al. v. Inhabitants of the County of Devon, (2 T. R. 667,) that no private action can be maintained against them for a breach of their corporate duty, unless such action be given by statute. Per Parsons, C. J. in Riddle v. Proprietors of Locks, &c. on Merrimack River, 7 Mass. R. 187; and see also Hawks v. Inhabitants of Kennebeck, Ibid. 462; Mower v. Leicester, 9 Mass. R. 247; Inhabitants of Brewer v. Inhabitants of New Gloucester, 14 Mass. R. 216; Adams v. Wiscasset Bank, 1 Greenl. (Me.) R. 361; and see ante, Int. § 5, p. 19.

them as individuals, and becomes a lien on their property; and in the other it is against them as a corporation, and only binds their corporate property.'

1 Flower v. Allen, 5 Cowen (N. Y.) R. 670. As to actions against Overseers of the poor, Commissioners of counties, &c. &c. see the numerous cases cited in the reporter's note to the case of Todd v. Birdsall, 1 Cowen (N. Y.) R. 260.