Heard v. Sibley

McCay, Judge. 1. There is nothing in the language of the charter of the bank which issued the bills on which the defendant’s liability is claimed to arise, which points out any special mode or exclusive mode of suit against the stockholders. The language used plainly has reference to the character of the liability, and not to the mode of enforcing it. The language of the Code, section 3370, is broad, and by its terms clearly covers the case of this bank. It has nothing in it changing any right of anybody under the contract. It only provides a new remedy, perhaps a more speedy and effective one than existed before. Bat we believe it is universally admitted, that whilst the leglature may be restricted somewhat as to what remedies it shall take away, nobody has thought there was any restriction on their right to change the remedy by making it more effective. 2, 3. "We think a fair construction of these sections of the Code, 3370, 3376, is that the proceeding therein provided for against the stockholders is only a mode of suit. Section 3371, providing for the notice, said,, it shall operate as notice, not of the suit against the corporation, but “ for the purposes hereafter mentioned.” Those purposes are to get the names of the stockholders to authorize the issue of an execution.against each one, for his part, and to authorize a defense of the suit by any stockholder if the president fails or refuses. The only point on which any serious difficulty arises is in section 3375. Do the words, “affidavit of illegality ” there mean the affidavit of illegality authorized by section 3664 to executions issued on ordinary judgments? We think not. The cases are wholly dissimilar. The defendant in the ordinary execution has had his day in court by regular, personal service, and copy of the writ. In the cases provided for in the section under discussion, the notice is in a newspaper, after commencement of the suit, and the party had even no right to defend,, unless his principal fails or refuses. We think the kind of illegality referred to is the illegality authorized in- personal 313 property mortgage executions, steamboat Ren executions, and all that class of cases of which we now have so many, where an execution is only a mode of commencing a suit, and -the defendant making the affidavit has all the rights on the trial as an ordinary defendant. He may plead, amend, and set up his rights in full, and is not bound as to any of his personal rights by the judgment against the corporation any more than he would have been had such a judgment been granted in the ordinary way against the bank, a return of no property been made on it, and then an ordinary suit brought against him, on his charter liability as security for the ultimate redemption of the bills. Judgment reversed.