Brode v. Firemen's Insurance

Martin, J. Judgment having been obtained against the company, the plaintiff sought a partial execution of it, by summoning Chittenden, one of the stockholders, as a garnishee, • [443] who answered that he did not consider himself as a stockholder. He admitted that he had become the owner of sixteen shares of the stock of the company, but averred that he had forfeited them before he was made a garnishee: he stated, that he had not sold any of those shares, nor had they been disposed of in any other manner than by the forfeiture ; that he paid on each of the shares about twenty-six or twenty-seven dollars. • On this, the plaintiff took a rule on the garnishee, to show cause why judgment should not be given against him; this rule was not served, the garnishee having gone out of the State. On the day stated in the rule, judgment was taken against him. The record shows that he was duly notified; and he appealed. In this court, the parties have admitted that no testimony was introduced, and that all the evidence is on file. The counsel for the appellant has urged, that the part of the record which states that the garnishee had due notice of the rule, ought to be rejected, as no part of the evidence states the notice. On this he has contended that the rule was improperly tried, and that the garnishee ought to have had judgment on the merits. The appellee’s counsel has replied, that when the indebtedness of the garnishee appears in his answer, judgment may be given against him without any rule, and he has contended that this is the case in the present suit. The answer admits that the garnishee was a stockholder for sixteen shares; that he paid twenty-six or twenty-seven dollars on each; and that they have been forfeited, according to the' third section of the charter of the company, id est, by his omission to pay the twenty-two or twenty-three dollars, the payment of which was protracted, It appears to us that the learned judge did not err, in considering that the indebtedness of the garnishee resulted from his answer. "We are referred to the charter. The price of each share is fifty dollars: the garnishee paid twenty-six or twenty-seven. The charter, as a means of compelling the punctual payment of the protracted part of the price, declares the forfeiture of the shares. This is a means which the law gives to the company to protect itself, when the insolvency of the de [444] faulting stockholders, or the great profits made by the company, make it their interest to sue for the forfeiture. The stockholder does not lose his property in the shares without the action of the company. A forfeiture is essentially a loss of one party, and a gain of the other. No one can acquire a right which he does not seek. Invito benejicium non datur. The creditors of a company have its whole stock for the security of any judgment against them; and the company cannot, by any act of theirs, liberate any of its stockholders from their obligation to complete the payment of the price of their shares, to the prejudice of the creditors. Cucullu et al. v. Union Insurance Company, 2 Rob. 571 — 578. The garnishee does not allege that the company has claimed the forfeiture; he is, therefore, still their debtor; and if he was to allege and prove it, the case just cited, perhaps, shows that he would still be bound to the plaintiff. Judgment affirmed.