Longley v. Little

The opinion of the Court was drawn up by WhitmaN C. J. — By the statute of 1836, -c. 200, § 3, it was provided, that any judgment creditor of any corporation, thereafter established, other than those of Banks, and those in regard to which it should not be otherwise provided, who should not, upon due proceedings, have been able to obtain satisfaction against the same, might have a remedy therefor, by an action of the case, against any stockholder therein, to the amount of his stock ; and, by $ 4, it was provided, that forty-eight hours previous notice should be given to any stockholder, intended to be charged, to produce corporate property, prior to the commencement of any such action against him. It appears that all the preliminary steps required by the statute cited, to entitle the plaintiff to recover had been taken. But it is contended, in the first place, that the case stated [165] is not within the purview of that act, because the defendant was not a stockholder in the corporation at the time the debt, for which judgment was rendered, was contracted. But it appears that he was so at the time the judgment was rendered, and so continued till due proceedings, to collect the amount for which it was rendered, had been had against the corporation, to obtain the amount due, without success ; and nothing in that statute seems to confine the remedy to such as were stockholders at the time the debt was contracted. Its provisions were, in reference to stockholders, in general terms, as to judgments against corporations ; and seems manifestly to have been intended to render all stockholders liable, without exception, for one year, after they should have sold out their stock, provided they were called upon within that time, and within six months after judgment rendered. Marcy v. Clark, 17 Mass. R. 330. It is, however, further insisted, that the act “ repealing all the acts, which are consolidated in the Revised Statutes,” repealed the act of 1836; and the Revised Statutes, c. 76, having provided, that the right of action against stockholders should be confined to those who were such, at the time the debt was originally contracted, that the defendant is not liable; and it is agreed that he was not then a stockholder. To this it is replied, nevertheless, that the repealing act above cited, saves £:to all persons, all rights of action in virtue of any act repealedand “ all actions and causes of action, which shall have accrued in virtue of, or founded on any of said repealed acts.” We are, therefore, called upon to decide whether this was a right of action, “ in virtue of any act repealedor an action or cause of action, which had accrued “ in virtue of, or was founded on any of said repealed acts.” These saving clauses must have had reference to rights and causes of action, which then, to wit, in 1841, when the repealing act was passed, had accrued. Rights and causes of action could not accrue subsequently, by virtue of, or be founded on a repealed statute. Before the repealing act took effect the plaintiffs [166] had cause of action against the corporation, which they prosecuted against it to final judgment. But until a failure to obtain the amount from corporate property, by due proceedings for the purpose, no cause of action arose against the individual corporators. The right against them depended upon a default on the part of the corporation; and furthermore, upon default, after notice to the stockholder sought to be charged, forty-eight hours previously, and a failure on his part to exhibit within that space of time corporate property for the purpose of satisfying the demand. This right and cause of action did not accrue until after the statute of 1836, c. 200, had been repealed. The maintenance of the action, therefore, must depend upon the provisions to be found in the Revised Statutes, c. 76. As that gives no right of action, in such cases, except against those who were stockholders at the time the debt accrued, and the defendant not having been then a stockholder in the corporation, the plaintiffs must become nonsuit