§ 13. The distringas, we have said, is the first process against the corporation, after they have refused to answer the bill, having been regularly served with subpoena, or other process. This is directed to the sheriff commanding him to distrain the lands, goods, and chattels of the corporation, so that they may not possess them till the court make other order to the contrary, and that in the mean time the sheriff is to answer to the court for what he so distrains, so that the defendants may be compelled to appear in chancery, and answer the contempt. The writ is delivered to the sheriff to execute, who is bound to make return thereof after it is returnable. When the sheriff has made his return, it is to be taken to the plaintiff's clerk in court, who makes out an alias distringas to be used and acted upon in the same manner as the distringas. Should the defendants still stand out, then when the sheriff has returned the writ, a pluries distringas is to be made out, in like manner as the former. This being also returned by the sheriff, counsel is to be instructed to move for a sequestration upon a pluries distringas returned against the said corporation to sequester all their lands, chattels, &c. until they appear to, or answer, the plaintiff's bill, or perform the decree, and the court make other order to the contrary. The sequestration cannot be discharged, until the defendants have performed all they were enjoined to do, paid all costs, and the commissioners their fees.' Where a distringas was issued against a corporation for non-performance of a decree, and afterwards a sequestration nisi, for want of appearance, the court ordered the proceedings to go on, notwithstanding three objections taken, and would not allow the company to enter an appearance on the distringas, and discharge the sequestration. A rule to show cause why a distringas should not issue will be awarded against a banking company for non-payment of a bill of costs.' 1 1 1 Grant, Chan. Prac. 95; Thes. Brev. 144, 145; 1 Tidd Prac. 107, 109. * Harvey v. E. India Co. 2 Vern. 395. * Orange Co. Bank v. Worden, 1 Wend. (N. Y.) R. 309; and see 4 Cow. (N. Y.) R. 111, n. a. $14. The process of sequestration is a writ or commission under the great seal, sometimes directed to the sheriff, or most commonly to four or more persons of the plaintiff's own naming, empowering any two or more of them to enter upon, possess, and sequester the real and personal estate and effects of the defendant, (or some particular part and parcel of the lands,) and to take and keep the profits, or pay them as the court shall appoint, until the parties have appeared to or answered the plaintiff's bill, or performed some other matter which has been ordered by the court, and for not doing whereof he is in contempt.' A sequestration out of chancery is more effectual than an execution by fieri facias at law; for a sequestration may be awarded against the goods, though the party is in custody upon the attachment; whereas at law, if a ca. sa be executed, there can no fieri facias issue. This writ is always obtained upon motion, of course, (not upon petition.) The sequestrators should be of sufficient substance to answer what may come to their hands. 3 2 Sequestrations, now a common process, are said to have been introduced in Lord Bacon's time; but it rather seems they were first adopted in the time of his predecessor, Lord Coventry. North, in his entertaining life of the Lord Keeper Guilford, says, that "Sequestrations were not heard of till the Lord Coventry's time, when Sir John Read lay in the fleet, (with £10,000 in an iron cash chest in his chamber,) for disobedience of a decree, and would not submit and pay the duty. This being represented to the Lord Keeper, as a great contempt and affront upon the court, he authorized men to go and break up his iron chest, and pay the duty and costs, and leave the rest to him, and discharge his commitment. From thence," says North, "came sequestrations, which now are so established as to run of course after all other process fails, and 'Hind Prac. 127, 136; 1 Grant Chan. Prac. 90. 2 Hind, 127; see Ammant v. New Alexandria & Pittsburg Turn. Co. 13 S. & Rawle (Penn.) R. 210. 1 Grant Chan. Prac. 91. • Earl of Kildare v. Sir M. Eustace, 1 Vern. 421. is but in nature of a grand distress, the best process at common law, and after a summons, such as a subpœna is, what heed," he observes, "all that grievance and delay of the intervening process?" 1 It is doubtful whether sequestrators can seize the books, papers, &c. of a corporation; though it seems they may break locks. In some cases, where doors were locked and admittance refused to sequestrators, the court has ordered a writ of assistance, in order to put them in possession.* By the New York revised laws, it is provided, that whenever a judgment at law, or a decree in equity shall be obtained against any corporation, incorporated under the laws of that State, and an execution issued thereon shall have been returned unsatisfied in part or in the whole, upon the petition of the person obtaining such judgment or decree, or his representatives, the Court of Chancery may sequestrate the stock, property, things in action, and effects of such corporation, and may appoint a receiver of the same. Upon a final decree on any such petition, the court shall cause a just and fair distri bution of the property of such corporation, and of the proceeds thereof, to be made among the fair and honest creditors of such corporation, in proportion to their debts respectively, who shall be paid in the same order, as is provided in case of a voluntary dissolution of a corporation. A creditor of a corporation whose execution has been returned unsatisfied, can proceed by bill as well as by petition, under these revised laws, to obtain a sequestration of the effects of the corpora tion." 'North's Life of Lord Keeper Guilford, vol. 2, p. 73, octavo edit. Ibid. See Register's Statement of the Practice, 2 Dick. 695, and the cases there cited. 2 N. Y. Rev. Stat. 463, § 36. 2 N. Y. Rev. Stat. 463, § 37. Judson v. R. Galena Co. 9 Paige (N. Y.) Ch. R. 598. $15. It is the usual practice to make such of the individual members of a corporation parties, as are supposed to know anything of the matters inquired after in the bill. As it is not very likely that corporations, in answering under their common seal, will discover anything to their prejudice, it is common to make the clerk, treasurer, directors, or some of the principal members, in their natural capacities, co-defendants with the corporation. This practice appears, it has been stated, to have commenced in the reign of Charles II. and was afterwards expressly recognized by Lord Talbot." In 1623, the members of a corporation, charged as private persons, answered under oath. In 1680, upon a bill against a corporation, they answered under their common seal, and so not being sworn would answer nothing to their prejudice; it was ordered, that the clerk of the company, and such principal members as the plaintiff should think fit, should answer on oath, and that a master settle the oath. One of the officers of the East India Company was made a defendant to a bill of discovery of some entries and orders in their books; defendant demurred, for that he might be examined as a witness, and for that his answer could not be read against the company. The court said, it had been a usual thing for a plaintiff, in order to have a discovery, to make the secretary, book-keeper, or any other officers of a company defendants, who have not demurred, but answered; that there would otherwise be a failure of justice, as the company were not liable to a prosecution for perjury." The same rule has been recognized in this country; and it was laid down by the Court of Chancery in New York, that individual members of a corporation were compelled to answer, 11 Grant Chan. Prac. 28. 2 6 Bacon's Abr. Tit. Cor. (E.) and authorities there cited. 3 Warren v. Feltmakers' Co. Toth. 7. Anon. 1 Vern. 117. • Wych v. Meal, 3 P. Wms. 310. This decision has been followed in Moodalay v. Morton, in 1785, 1 Bro. C. C. 469; and as late as 1807, in Dummer v. Chippenham Corporation, 14 Ves. 245. not only with the rest under the common seal, but individually upon oath.' And in another case in the same court, it was held to be well settled, that the officers of the Fulton Bank might be made parties to a bill of discovery, to enable the complainants to obtain a knowledge of facts, which could not be arrived at by the answer of the corporation put in without oath. It was also held, that the corporation ought to be permitted to put in a separate answer, in order to make offers and admissions, and to deny facts which the officers may suppose to exist." The well-established general rule, then, we perceive, that a mere witness cannot be made defendant, has been relaxed in the case of a corporation. This relaxation is on the ground, that the answer of a corporation is not put in under oath, and that hence an answer is required from some person capable of making a full discovery, as the agents or the officers of a corporation. It was stoutly contended in a case in the English Court of Chancery, in the year 1807, that the exception to the general rule, we have referred to, was applicable only to agents and officers, or to persons who stood in a confidential situation. The case stated is in substance, that the plaintiff, being fully capable of executing the duty of a schoolmaster, was appointed and had long been continued in that character; that at the election of members of parliament for the borough of Chippenham, certain individuals and members of the corporation wished that he should give his vote against his own judgment, in favor of a particular candidate; that, meaning to procure that vote, they gave him an intimation, that if he would not vote according to their wish, he would be immediately dismissed; that he voted contrary to their wishes; and then the five individuals, in the execution of their corrupt purpose, found the means of making the corporation the means of dismissing him. The bill prayed that the bailiff and bur 1 Brumley v. Westchester Manufacturing Society, 1 Johns. (N. Y.) Ch. R. 366. 2 * Vermilyea v. Fulton Bank and others, 1 Paige (N. Y.) Ch. R. 37. |