time the debt was contracted, for which the draft was made, is sufficient. The debt arising upon the sale of the goods by Barker to the company, was not paid or extinguished by the draft; and although the plaintiffs could not in their own names at law recover against the company upon the original consideration, for goods sold by Barker, without an assignment of it and an express promise to pay, by the company made to them, yet the draft was negotiable, and upon that they could recover against the company: and the debt or demand for the goods sold remained unpaid-not discharged or canceled until the draft should be paid. By the construction given to the ninth section of the act incorporating the "Rossie Lead Mining Company," in Moss V. Oakley, 2 Hill, 265, the suit against stockholders must be brought against those who were such when the debt was contracted. This being the law, it seems to me that when we find that the debt was contracted at a time anterior to the making of negotiable paper given for such debt, the averment that the defendant was a stockholder at the former period, is the only one proper to be made in the case. The plaintiffs own and are entitled to recover the debt, not indeed as for goods sold, but upon the evidence of such debt in the shape of negotiable paper, and that the defendant was a stockholder when that debt was contracted. Suppose Barker had not transferred the draft, was still the owner, and had sued, as the plaintiffs have, upon the draft merely, having no counts under which he could recover for goods sold, could there be any well-founded objection to an averment that the company owed him on the twentyseventh of April, 1839, for goods sold; and that the draft was made for that demand, not in payment or satisfaction until paid, so as to charge the defendant with a liability to pay, on the ground that he was a stockholder when the debt was contracted? I think not; and if not, it seems to me that the conclusion at which I have arrived, that the plaintiffs may aver and show that fact in order to establish the defendant's liability under the statute to them for that demand, is sound. It does not follow that the plaintiffs must be in a situation to recover against the company upon the evidence, which would be required to recover upon the original promise, express or implied, in order to charge the defendant. All that is requisite is, that they should set up a demand due to them, contracted by the company when the defendant was a stockholder, which they can recover against the company; that they have once recovered a judgment against the company, and had execution which has

been returned unsatisfied. This they have averred; and if true, they are in my opinion entitled to recover their debt.

An objection is made to the last count, that the averment of a recovery of judgment and a return of an execution thereon unsatisfied in 1840, and that afterwards, in August, 1843, the company were dissolved, are inconsistent and repugnant to each other, and that this count is therefore bad. Mr. Chitty, 1 Chit. Pl., 2d Am. ed., 231, says: “If, however, the matter unnecessarily stated, be wholly foreign and impertinent to the cause, so that no allegation whatever on the subject was necessary, it will be rejected as surplusage, and it need not be proved, nor will it vitiate, it being a maxim, that utile per inutile non vitiatur; except when, by this unnecessary allegation, the plaintiff shows that he has no cause of action;" and again, at page 232: "So, though the superfluous allegation be repugnant to what was before alleged, it is void and will be rejected, and whatever is redundant and which need not have been put into the sentence, and contradicting what was before alleged, will not in general vitiate the pleading." The objection should have been, I think, for duplicity, rather than for repugnancy. The statute, section 10, made it necessary for the plaintiffs to show before they commenced this suit, either that they had obtained judgment against the corporation upon their demand, and had had execution thereon, which had been returned unsatisfied in whole or in part, or that said corporation had been dissolved. The count avers both judgment and execution, and dissolution of the corporation, either of which would of itself, independent of the other, constitute a sufficient ground of action in that particular. The reason of the rule requiring a pleading to be single, is that it would be unnecessary and vexatious to put the opposite party to litigate and prove two points, when one would be sufficient to establish the matter in issue: 1 Chit. Pl. 230. But however this may be, this demurrer is put into three counts, and the rule is, if one is good the plaintiff must have judgment. Here two of them are held to be good: Mumford et al. v. Fitzhugh et al., 18 Johns. 457; Brown v. Stebbins, 4 Hill, 154; Whitney v. Crosby, 3 Cai. 89; Gidney v. Blake, 11 Johns. 54; Martin v. Williams, 13 Id. 264; Monell v. Colden, Id. 395.

The defendant must have judgment on the demurrer to the plea of the statute of limitations to the first, second, and third counts, and the plaintiff must have judgment on the demurrer to the fourth, fifth, and sixth counts of the declaration. Each party has leave to amend on the usual terms.

Judgment accordingly

DEMURRER TO DECLARATION CONTAINING SEVERAL COUNTS, if any of them are good, must be overruled: Biddle v. Coryell, 38 Am. Dec. 521; Lane v. Levillian, 37 Id. 769; United States v. White, Id. 374.

REFERENCE TO PRIOR COUNTS IS ADMISSIBLE in pleading to avoid prolixity: Bank of New Brunswick v. Neilson, 29 Am. Dec. 691.

SURPLUSAGE MAY BE STRICKEN OUT OF DECLARATION, if enough is left to make a good cause of action: Crocker v. Mann, 26 Am. Dec. 684. The principal case is cited to the same point in Nelson v. Lounsbury, 3 Barb. 127.

REMEDIAL STATUTES SHOULD BE LIBERALLY CONSTRUED: Orndoff v. Turman, 21 Am. Dec. 608.

ACTIONS AND SUITS AGAINST STOCKHOLDERS FOr Debts of CorPORATION.— At common law it is well settled, as stated in the principal case, that the stockholders in a corporation proper, were not personally liable for its debts: Ang. & Ames on Corp., secs. 591, 595; Field on Corp., secs. 55-74; Thomp on Liability of Stockholders, sec. 4; Adams v. Wiscasset Bank, 10 Am. Dec. 88; Smith v. Huckabee, 53 Ala. 193; Vose v. Grant, 15 Mass. 505; Spear v. Grant, 16 Id. 9; Gray v. Coffin, 9 Cush. 192; Norton v. Hodges, 100 Mass. 241; Shaw v. Boylan, 16 Ind. 384; Peck v. Coalfield Coal Co., 3 Brad. App. (Ill.) 622; Lowry v. Inman, 46 N. Y. 119; Seymour v. Sturgess, 26 Id. 134; Chase v. Lord, 77 Id. 1; Bird v. Hayden, 2 Abb. Pr. (N. S.) 61; Salt Lake City National Bank v. Hendrickson, 40 N. J. L. 52; S. C., 6 Rep. 212; Pollard v. Bailey, 20 Wall. 527. "Personal responsibility of stockholders," says Depue, J., in Salt Lake City National Bank v. Hendrickson, supra, "is inconsistent with a body corporate at common law, and can arise only from some positive prescription by legislative act." So stockholders are not liable for corporate debts at common law, even though the assets have been divided among them, after dissolution, leaving the debts unpaid: Vose v. Grant, 15 Mass. 505; Spear v. Grant, 16 Id. 9. A corporation can not by a mere by-law, in the absence of any statute, bind stockholders not assenting thereto, for the payment of the debts of the corporation: Reid v. Eatonton Mfg. Co., 40 Ga. 98; Trustees ▼. Flint, 3 Metc. 539; Flint v. Pierce, 99 Mass. 69. So though the stockholder signs the by-law, if it does not appear that he did so for any other purpose than merely to become a member of the corporation, or that the debt was contracted on the faith of such by-law, or with knowledge of its existence on the part of the creditor: Flint v. Pierce, supra. Nor can a bank make its stock. holders liable for its bills by printing a notice thereon that they are so liable: Lowry v. Inman, 46 N. Y. 119. Nor does a stockholder make himself liable for the corporate debts, it seems, by representing that he is liable, though he is personally liable for the false representation: Reid v. Eatonton Mfg. Co., supra; nor by a false representation made in good faith that the corporation is solvent: Searight v. Payne, 2 Tenn. Ch. 175. Nor do the stockholders become liable as partners for corporate debts merely because without their au thority the corporation exceeds its powers: Medill v. Collier, 16 Ohio St. 599; Second National Bank v. Hall, 35 Id. 166; Searight v. Payne, 2 Tenn. Ch. 175.

This doctrine of exemption from personal liability for corporate debts does not apply to members of quasi corporations, such as counties, towns, parishes, and school districts; for it is well settled, particularly in the New England states, that the individual property of members of such corporations is subject to execution on a judgment against the corporation: Ang. & Ames on Corp., sec. 629; Adams v. Wiscasset Bank, 10 Am. Dec. 88; Atwater v. Woodbridge, 16 Id. 49; McLoud v. Selby, 27 Id. 689, and note; Gaskill v. Dudley, 39 Id. 750; Beardsley v. Smith, 16 Conn. 368; Hill v. Boston, 122 Mass. 349.

Nor does it apply to members of unincorporated joint stock companies, who, it is well established, are liable as partners for the debts of the concern: Ang. & Ames on Corp., secs. 41, 42, 591; Thomp. on Liab. of Stockh., sec. 2; Greenup v. Barbee, 1 Bibb, 320; National Park Bank v. Nichols, 2 Biss. 146; Holt v. Blake, 47 Me. 62; Frost v. Walker, 60 Id. 468; Tyrrell v. Washburn, 6 Allen, 466; Oliver v. Liverpool etc. Co., 100 Id. 531; Taft v. Ward, 106 Id. 518; Bodwell v. Eastman, Id. 525; Whitman v. Porter, 107 Id. 522; Dow v. Sayward, 12 N. H. 271; Comanche Mining Co. v. Rumley, 1 Mont. 201; Williams v. Bank of Michigan, 7 Wend. 542; Savage v. Putnam, 32 Barb. 420. So where such associations are organized pursuant to a statute, but without incorporation, as in New York, where, however, it is necessary, before resorting to the personal liability of the members, to have judgment and execution returned unsatisfied against the association in a suit brought against the association by the name of its president or treasurer: Robbins v. Wells, 1 Rob. 666; Wilberhead v. Allen, 4 Abb. App. Dec. 628. And the members of an unincorporated joint stock concern continue liable personally for its previous debts, even after incorporation, and notwithstanding a provision in the subsequent charter, substituting the liability of the corporation for that of the members: Ang. & Ames on Corp., sec. 592; Thomp. on Liab. of Stockh., sec. 5; Witmer v. Schlatter, 2 Rawle, 359; Broyles v. McCoy, 5 Sneed, 602; Haslett v. Wotherspoon, 1 Strob. Eq. 209. So for debts subsequently contracted in the name of the old association to a creditor having no notice of the change: Goddard v. Pratt, 16 Pick. 412. Persons associating themselves together and subscribing money to procure a charter for a railway company, are partners in the undertaking: Holmes v. Higgins, 1 Barn. & Cress. 74. Every abortive attempt to form a corporation, however, does not necessarily result in a partnership: Blanchard v. Kaull, 44 Cal. 440.

IN EQUITY it is a settled doctrine of the American courts that the capital stock and other assets of a corporation constitute a trust fund for the payment of its debts: Thomp. on Liab. of Stockh., sec. 10. This trust fund includes all sums remaining unpaid on the shares of stockholders, as well as all assets divided among stockholders leaving the debts unpaid, where the property remaining is insufficient to pay them, and by appropriate proceedings in equity, without the aid of any statute, the stockholders may be held liable for the payment of debts to the extent that they have not paid up their shares or have received assets of the corporation: Thomp. on Liab. of Stockh., sec. 11; 2 Story Eq. Jur., sec. 1252; Briggs v. Penniman, 18 Am. Dec. 454; Allen v. Montgomery R. R. Co., 11 Ala. 437; Bingham v. Rushing, 5 Id. 403; De Mony v. Johnston, 7 Id. 51; Smith v. Huckabee, 53 Id. 195; Harmon v. Page, 10 Pac. L. J. 634; Ward v. Griswoldsville etc. Co., 16 Conn. 593; Hightower v. Thornton, 8 Ga. 486; Robinson v Conrey, 5 La. Ann. 297; Payne v. Bullard, 23 Miss. 88; Mann v. Pentz, 3 N. Y. 422; Gra ham v. Hoy, 38 N. Y. Sup. Ct. (6 Jones & S.) 506; Bartlett v. Drew, 4 Lans. 444; S. C., 60 Barb. 648; S. C. in court of appeals, 57 N. Y. 587; Hastings v. Drew, 76 Id. 9; Henry v. Vermillion etc. R. R. Co., 17 Ohio, 187; Adler v. Milwaukee Pat. Brick Co., 13 Wis. 61; Wood v. Dummer, 3 Mason, 308; Haskins v. Harding, 2 Dill. C. C. 106; In re South Mountain etc. Co., 7 Saw. 30; Curran v. Arkansas, 15 How. (U. S.) 304; Sanger v. Upton, 91 U. S. 56; Hatch v. Dana, 101 Id. 205. The doctrine is thus stated by Mr. Justice Swayne in Sanger v. Upton, 91 U. S. 60: "The capital stock of an incorpo rated company is a fund set apart for the payment of its debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not

be withdrawn or applied otherwise than upon their demands, until such demands are satisfied. The creditors have a lien upon it in equity. If diverted they may follow it as far as it can be traced, and subject it to the payment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge, and as much a part of the assets of the company, as the cash which has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon payment of any other debt due to the company. As regards creditors there is no distinction between such a demand and any other asset which may form a part of the property and effects of the corporation."

Indeed, it has sometimes been said that in equity the stockholders of a corporation are liable for its debts, contracted with their consent, even beyond the amount of their capital stock: Hume v. Winyan etc. Co., 1 Car. L J. 217, referred to by Lumpkin, J., in Hightower v. Thornton, 8 Ga. 499. But this doctrine can not be sustained. In the case of In re South Mountain etc. Co., 7 Saw. 30, Hoffman, J., while conceding that in equity a stockholder in a moneyed corporation is liable for the debts of the corporation to the extent that his shares of stock are unpaid, holds that this doctrine does not apply to mining corporations organized under the laws of California, for the reason that the nominal value of the capital stock in such corporations is purely arbitrary, and has no reference to the value of the property of the corporation, and that one taking stock therein enters into no contract, express or implied, to pay the par value of his shares; that assessments on such stock can be enforced only by a sale of the stock, and that the only remedy of creditors of the corporation against the stockholders personally is that given by statute.

PERSONAL LIABILITY OF STOCKHOLDERS UNDER VARIOUS STATUTES. — Stockholders in corporations in the United States are now very generally made liable for corporate debts, either generally or under particular circumstances, and to a limited extent, either by provisions in particular charters or by general statutes. It would be impossible, however, within the limits of this note to enter into any general review of these statutes, or of the very numerous decisions construing and applying them. A brief discussion of some of the questions arising under such statutes, particularly as affecting the points adjudicated in the principal case, is all that will be here attempted. WHETHER STATUTES ARE TO BE STRICTLY 06 LIBERALLY Construed, which impose a personal liability on stockholders in a corporation for the payment of its debts, is a point upon which the cases are not agreed. Mr. Justice Story, in Carver v. Braintree Mfg. Co., 2 Story, 432, adopts the view, in accord with that of the principal case, that such statutes are remedial, and are therefore to be liberally construed. On the other hand, it has been determined in a number of cases that statutes of this kind, being in derogation of the common law, are to be strictly construed: Gray v. Coffin, 9 Cush. 192; Lowry v. Inman, 46 N. Y. 119; Chase v. Lord, 77 Id. 1; S. C., 6 Abb. N. Cas. 258; Salt Lake City Nat. Bank v. Hendrickson, 40 N. J. L. 52; S. C., 6 Rep. 212; Moyer v. Pennsylvania Slate Co., 71 Pa. St. 293; Means' Appeal, 85 Id. 75, 78. In other cases it is said that neither a strict nor a liberal construction is to be adopted where it will operate to defeat the obvious intent of the statute, but that it should be reasonably construed: Mokelumne Hill etc. Co. v. Woodbury, 14 Cal. 265; Davidson v. Rankin, 34 Id. 505. And this is the doctrine preferred by Mr. Thompson in Thomp. on Liab. of Stockh., sec. 53.