A suit in equity, either against the directors to compel assessments, or directly against the stockholders, is undoubtedly the appropriate remedy to enforce the equitable liability of stockholders for corporate debts to the extent that their stock subscriptions are unpaid, in case of a deficiency of other assets, and it is also the proper remedy, if no other is provided by law, where the statute expressly makes the stockholders liable for debts to the extent that their stock remains unpaid, for such statutes are merely declaratory of the equitable doctrine in such cases: Thomp. on Liab. of Stockh., secs. 12, 16, 17, 258; Morgan v. New York etc. R. R. Co., 40 Am. Dec. 244, and note; Jones v. Jarman, 34 Ark. 323; Harmon v. Page, 10 Pac. L. J. 634; Mann v. Pentz, 3 N. Y. 415; Bartlett v. Drew, 4 Lans. 444; S. C., 60 Barb. 648; 57 N. Y. 587; Griffith v. Mangan, 42 N. Y. Sup. Ct. (10 Jones & S.) 369; S. C., 73 N. Y. 611; Hastings v. Drew, 76 Id. 9; Henry v. Vermillion etc. R. R. Co., 17 Ohio, 189; Bush v. Cartwright, 7 Or. 329; Hatch v. Dana, 101 U. S. 205; In re South Mountain etc. Co., 7 Saw. 30; Hastings v. Harding, 2 Dill. C. C. 106. Where a call has been made on an unpaid subscription, and the stockholder is in default to the corporation, so that he may be sued at law as for an ascertained debt, he may be garnished therefor in an action against the corporation in the same way as any other debtor: Bingham v. Rushing, 5 Ala. 403; Allen v. Montgomery etc. R. R. Co., 11 Id. 437; Brown v. Union Ins. Co., 3 La. Ann. 177; Meintz v. East St. Louis etc. Co., 89 Ill. 43. Otherwise, if no call has been made: Allen v. Montgomery etc. R. R. Co., 11 Ala 437; Brown v. Union Ins. Co., 3 La. Ann. 177; Hannah v. Moberly Bank, 67 Mo. 678; Simpson v. Reynolds, 71 Id. 594.

The propriety of a resort to equity to compel payment of corporate debts out of unpaid stock is obvious. In no other tribunal can the proportionate liability of the respective stockholders be adjusted and enforced without a multiplicity of suits. For the same reason it has been held that a suit in equity is a proper remedy where the stockholders are, by statute, made liable for corporate debts to the extent of their stock, or to double the amount of their stock, or the like: Briggs v. Penniman, 18 Am. Dec. 454; Judson v. Rossie Galena Co., 38 Id. 569; Morgan v. New York etc. R. R. Co., 40 Id. 244; Terry v. Tubman, 92 U. S. 156; Mills v. Scott, 99 Id. 25; Terry v. Little, 101 Id. 216; Masters v. Rossie Lead Mining Co., 2 Sandf. Ch. 301; Bogardus v. Rosendale Mfg. Co., 7 N. Y. 147; Middletown Bank v. Russ, 3 Conn. 135; Emmert v. Smith, 40 Md. 123. And in many cases this is held to be the only remedy, unless the statute gives another: Smith v. Huckabee, 53 Ala 191; Spence v. Shapard, 57 Id. 598; Harris v. Dorchester, 23 Pick. 112; Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, Id. 113; Brown v. Hitchcock, 36 Id. 667; Pollard v. Bailey, 20 Wall. 520. And in some cases it is expressly provided by statute that the remedy is by bill in chancery: Hadley v. Russell, 40 N. H. 109; Barre Nat. Bank v. Hingham etc. Co., 127 Mass. 563. If the creditor is himself a stockholder, and liable for corporate debts, there is still more urgent reason for confining him to his remedy in equity: Bailey v. Bancker, 3 Hill, 188; Beers v. Waterbury, 8 Bosw. 396; Thayer v. Union Tool Co., 4 Gray, 75; Perkins v. Sanders, 56 Miss. 733. Where the language of the statute is such as to indicate a several liability on the part of the stockholders, if no other remedy is provided by law, it is very generally held that the creditor may sue any one of the stockholders at law: Davidson v. Rankin, 34 Cal. 503; Culver v. Third National Bank, 64 Ill. 528; Corwith v. Culver, 69 Id. 502; McCarthy v. Lavasche, 89 Id. 270; S. C., 31 Am. Rep. 83; Fuller v. Ludden, 87 Ill. 310; Flash v. Conn, 16 Fla 428; S. C., 26 Am. Rep. 721; Baylis v. Swift, 40 Iowa, 648; Stewart v. Lay,

45 Id. 604; Norris v. Johnson, 34 Md. 485; Norris v. Wrenschall, Id. 492; Tilden v. Young, 39 Mich. 58; Perry v. Turner, 55 Mo. 518; Vick v. Lane, 58 Miss. 681; Aspinwall v. Sacchi, 57 N. Y. 331. So in Georgia, though the statute expressly provides for a "pro rata” liability: Boyd v. Hall, 56 Ga. 563; Mills v. Scott, 99 U. S. 25. In Maine an action on the case to enforce a stockholder's liability for a corporate debt is given by statute: Cummings v. Maxwell, 45 Me. 190. And under the construction given to the Pennsylvania statute relating to manufacturing corporations, it is held that the exclusive remedy is an action at law against the corporation and the stockholders, or some of them, jointly: Patterson v. Wyomissing etc. Co., 40 Pa. St. 117; Mansfield etc. Works v. Wilcox, 52 Id. 377. So, though the creditor is himself a stockholder: Brinham v. Wellersburg etc. Co., 47 Id. 43. In Windham etc. Inst. v. Sprague, 43 Vt. 502, under a statute making directors and stockholders "personally" liable for debts exceeding a certain proportion of the capital stock, no remedy being given by the statute, it was held that the proper remedy was an action at law against all jointly. Where the stockholders are held to be liable as partners, they are of course to be sued as such: Allen v. Sewall, 2 Wend. 327; Planters' etc. Bank v. Bivingsville etc. Co., 10 Rich. L. 95; Perkins v. Sanders, 56 Miss. 733.

Perhaps the better doctrine is, that, unless the statute indicates a contrary intent, the jurisdiction at law and in equity is concurrent in these cases: United States Bank v. Dallam, 4 Dana, 574; Emmert v. Smith, 40 Md. 123; Bogardus v. Rosendale etc. Co., 7 N. Y. 147; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Harmon v. Page, 10 Pac. L. J. 634. In Warner v. Callender, 20 Ohio St. 190, it is held, that a judgment creditor of an insolvent corporation may join in the same suit a claim for an unpaid subscription and claim for the individual statutory liability of a stockholder. All the solvent stockholders should be joined as defendants, and the bill should be filed on behalf of all the creditors, where a suit in equity is brought: Mann v. Pentz, 3 N. Y. 415; Griffith v. Mangan, 42 N. Y. Sup. Ct. (10 Jones & S.) 369; S. C., 73 N. Y. 611; Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, Id. 113; Terry v. Little, 101 U. S. 216; Hadley v. Russell, 40 N. H. 109. But see Hatch v. Dana, 101 U. S. 205. And a stockholder sued alone in such a case may, at the proper time, require others to be made parties: Wright v. MeCormack, 17 Ohio St. 86; Umsted v. Buskirk, Id. 113; Matthews v. Albert, 24 Md. 527; Essex Co. v. Lawrence Machine Shop, 10 Allen, 352. But at law, each stockholder must be sued separately, where the liability is several: Terry v. Little, 101 U. S. 216.

ACTION AGAINST STOCKHOLDER NOT AN ACTION ON STATUTE.-In Corning v. McCullough, 1 N. Y. 47, arising under the same charter as in the principal case, it was held, that an action against a stockholder to enforce his individual liability arose out of the contract, and not from the statute, and, hence, was not within the statute of limitations of actions on statutes, and the principal case, on that point, was overruled: See Van Hook v. Whitlock, 37 Am. Dec. 246, and the cases cited in the note thereto. But the better doctrine seems to be, that the liability of stockholders does not rest in contract. It is a creature of the statute: Terry v. Little, 101 U. S. 216; Salt Lake City Bank v. Hendrickson, 6 Rep. 212. An action to enforce such liability is not barred if commenced within the time allowed for the commencement of actions based upon statutory liability: Green v. Beckman, 8 Pac. L. J. 645; 8. C., 59 Cal.

PEOPLE V. BROOKS.

[1 DENIO, 457.]

WORD "MAY" IS EQUIVALENT TO "SHALL," in the statute providing that affidavits for use in any court within the state "may be taken" before justices of the peace.

INDICTMENT LIES AGAINST JUSTICE FOR WILLFULLY REFUSING TO TAKE AFFIDAVIT offered to be made by a party to a suit before him, for the purpose of procuring a discontinuance, to the effect that the justice is a material witness for such party.

JUSTICE'S REFUSAL TO TAKE AFFIDAVIT IS "WILLFUL" IF INTENTIONAL, and not through inadvertence, under a statute subjecting him to punishment for a willful neglect of duty, and the act need not be corrupt.

GOOD FAITH OF JUSTICE IN REFUSING TO TAKE AFFIDAVIT which the law requires him to take, or his ignorance of the law, is no defense to an indictment for such refusal.

INSUFFICIENCY OF AFFIDAVIT WHICH JUSTICE REFUSES TO TAKE is no defense to an indictment for such refusal, especially where he does not put his refusal on that ground.

INDICTMENT against the defendant for a refusal by him, as justice, to take a certain affidavit offered to be made by a party to a suit pending before him, for the purpose of procuring a discontinuance, to the effect that the justice was a material witness for such party. The grounds of refusal appear from the opinion. The defendant claimed that the affidavit was not sufficient to show that the justice was a material witness, and that there could be no conviction if the refusal was made in good faith, and because the defendant did not believe it to be his duty to take the affidavit, but the court charged otherwise. The defendant was convicted, and brings the case here on certiorari, based on exceptions to the instructions.

Colvin and James, for the defendant.

E. C. Litchfield, district attorney, for the people.

By Court, BEARDSLEY, J. An action was pending before a justice, in which it was lawful for the defendant therein to make an affidavit showing the justice to be a material witness for him, with a view to effect a discontinuance of said cause: Laws of 1838, p. 232, sec. 1. A justice of the peace is authorized to take such an affidavit. The revised statutes provide that affidavits to "be read and used in any court of law or equity, of record or not of record, within this state," may be taken before commissioners of deeds: 2 R. S. 284, sec. 49. The word may, in this statute, is tantamount to shall, and made it the impera

tive duty of commissioners to take such affidavits: The Mayor etc. of New York v. Furze, 3 Hill, 612. But by an act of 1840, the office of commissioners of deeds was abolished, and it was provided that "all the powers and duties of such commissioners shall hereafter be executed by the justices of the peace, in said towns respectively:" Laws of 1840, p. 187, sec. 1. In this case, therefore, the justice was not only authorized to take the affidavit, but it was his duty to do so. This duty he neglected to perform, and for that he was indictable: 2 R. S. 696, sec. 38. The language of the statute is, that the neglect of duty must be "willful," and this neglect was of that character. The justice knew what was asked of him, and he knew what he refused; there was nothing like surprise, inadvertence, or misapprehension on his part. He refused to administer the oath, and he intended so to refuse. This was a willful violation of duty, for every intentional act is necessarily a willful one:" Commonwealth v. Green, 1 Ashm. 299.

That the justice believed he was not bound to take the affidavit, and acted in good faith in refusing to do so, are no defense. Ignorance of the law is no excuse, and an honest conviction that one has a right to do what the law declares to be illegal, will not make the act innocent. "A mistake in point of law, which every person of discretion not only may but is bound and presumed to know, is in criminal cases no sort of defense:" 4 Bl. Com. 227; Rex v. Esop, 7 Car. & P. 456.

By the terms of the statute, a wilful neglect of duty is made indictable; and it need not, in any other sense, be charged or found to be corrupt: The King v. Hollond, 5 T. R. 623, 618. The offense charged is not the neglect of a judicial duty, but of one purely ministerial, which the officer was absolutely bound to perform, and had no discretion or right to decline.

It is not material to decide whether the affidavit, as drawn, was sufficient for the intended purpose. That was not a question for the justice when called upon to administer the oath, nor did he put his refusal on that ground. He refused because, as he declared, it was his pleasure to refuse, and, as he said, he was not bound to do anything which would oust him of his jurisdiction over the cause. He may have been ignorant of his duty, but the tenacity with which he clung to the cause is, at best, but equivocal evidence of good faith. But these considerations were not material to the jury, who were very properly instructed to disregard them. They might be important on an application for a pardon; and should be allowed their proper

AM. DEO. VOL. XLIII-45

weight by the court in awarding punishment. There was no error, and a new trial must be denied.

New trial denied.

"MAY" MEANS "SHALL," WHEN, IN CONSTRUING Statutes: See Malcolm v. Rogers, 15 Am. Dec. 464; Ex parte Simonton, 33 Id. 320.

GOOD FAITH OF OFFICER CHARGED WITH OFFICIAL MISCONDUCT IS NO DEFENSE: Clark v. Miller, 47 Barb. 41; S. C., 54 N. Y. 534; Gardner v. People, 3 Hun, 222; S. C., 5 Thomp. & C. 678; S. C., 62 N. Y. 299; Cowley v. People, 8 Abb. N. Cas. 37; S. C., 21 Hun, 429; Morris v. People, 3 Denio, 402. Although if there was a discretionary power in the officer, only a criminal intent would make the act criminal: People v. Jones, 54 Barb. 318; all citing principal

case.

CLARK V. JONES.

[1 DENIO, 516.]

LEASE CONTAINING CONDITION THAT IT SHALL Cease and DetERMINE and become null and void upon non-payment of rent or other default by the tenant, whether it be a lease for life or for years, does not become absolutely void upon a default, but, though void as to the lessee's estate, it is voidable only as to the lessor, and he may waive the forfeiture and continue the lease and it will still bind the lessee.

SURETY FOR PAYMENT OF RENT IN LEASE CONDITIONED TO BE VOID upon non-payment, remains bound notwithstanding a breach of the condition, if the lessor waives the forfeiture.

WHERE LESSOR WAIVES FORFEITURE OF LEASE CONDITIONED TO BE VOID upon non-payment of rent for any quarter, by permitting the lessee to remain in possession, after a default, and suing merely for the rent in arrear upon a bond given by the tenant with surety for the payment of the rent under a stipulation in the lease providing that in case of default the whole amount of the bond shall be recoverable as "liquidated damages," the judgment recovered in such action will not prevent the lessor's representatives upon scire facias on such judgment from assigning new breaches for non-payment of rent accruing subsequent to that action.

SCIRE FACIAS, in the superior court of New York city, on a judgment recovered by the plaintiffs' testator against the defendants for three thousand three hundred dollars debt, besides costs, on a bond given to the testator by the defendant Redmond as principal, and Clark as surety, for three thousand three hundred dollars, reciting that the testator had leased certain premises to Redmond for ten years at an annual rent of three thousand three hundred dollars, payable quarterly, the lease providing that the tenant should give a bond in that sum with good surety for the payment of the rent, and that if the rent for any quarter should remain due and unpaid for thirty days