delivered the opinion of the court. He recited the facts- as above stated, and continued:
It is the well settled rule of decision, established by the Court of Appeals of New York in numerous cases, that this section of the statute, to enforce which the present action was brought, is penal in its character, and must be construed with strictness as against those sought to be subjected to its liabilities.
Merchants' Bank
v.
Bliss,
• In the case last cited the action authorized by it was held to be ex delicto, and that it did not survive as against the personal representative of a trustee sought to be charged.
In
Bruce
v.
Platt,
“ It is settled, by repeated decisions applicable to this case, that the statute in question (Laws of 1848, ch. 40, § 12) is *458 penal, and not to be extended by construction; that in an action to enforce a liability thereby created, nothing can be presumed against the defendants, but that every fact necessary to establish their liability must be' affirmatively proved,” citing Garrison v. Howe,17 N. Y. 458 ; Miller v. White,50 N. Y. 137 ; Whitney Arms Co. v. Barlow, 63 N. Y. 62.
This rqle of construction in reference to this and similar statutory provisions has been heretofore adopted and applied by this court. .
Steam Engine Co.
v.
Hubbard,
In the case last mentioned, this court, following the Court of Appeals of New York in the case of
Wiles
v.
Suydam,
The distinction is illustrated and enforced in
Hastings
v.
Drew,
The precise question involved here was decided by the Court of Appeals of New York in the case of
Miller
v.
White,
• “It will be perceived that this is a highly penal act, extremely rigorous in its provisions. It is absolute that the trustees shall be liable for all the debts of the company, if the report be not made, no matter by whose default. If one of the trustees did all in his power to have it made, yet if the pres- . ident, or a sufficient number of his co-trustees to constitute a majority, declined to sign it, or if the president and secretary declined to verify it by oath, the faithful trustee seems to be absolutely liable as well as-those who refuse to do their duty.”
It was accordingly held, “ that, as against these defendants, the judgment did not legally Nexist, as they were neither parties nor privies to it. . . . It is not a judgment as to these defendants; no action could be maintained thereon against them. ' . . Nor is the judgment prima facie evidence of ' the debt as against these defendants.” .
This doctrine was repeated and reaffirmed by the same court in
Whitney Arms Co.
v.
Barlow,
The case of
Miller
v. White,
ubi supra,
has never been overruled, nor questioned by the New York Court of Appeals. ' On the contrary, it has been repeatedly and expressly cited and approved, and either followed or distinguished from the case under decision, in the following cases:
Rorke
v.
Thomas,
It is attempted, however, in argument to distinguish the present case from that of
Miller
v.
White, ubi supra,
upon the
*460
facts, so as to except this from the rule of that decision. In the case of
Miller
v. White,
ubi supra,
the judgment sued on was not recovered until after the alleged default on the part of the defendants, as trustees, in filing their report, whereas in the present case the default is alleged to have occurred after the recovery of the judgment sued on. But in
Miller
v.
White,
the plaintiffs did aver- defaults occurring after the rendition of the judgment, although none were proved except'one occurring before it was recovered; and the court said (
Upon this point, it is further said in argument, that it is reduced to a question of evidence, and that the rules of evidence, enforced in the courts of a State do not necessarily govern courts of the United States, although sitting in the same State. However this may be in other cases, or where the laws of the United States prescribe rules of evidence for their own tribunals, it is not true that the courts of the United States, in a special statutory proceeding, would give to a judgment of a State court any other or greater effect, either as a matter of evidence, or as ground of action, than must be lawfully given to it in the courts of the State, whose laws are invoked to enforce it.
It is, however, further urged upon us in argument that in cases like the present, which is shown by the record and admitted to be founded on an action on the case for a tort, the judgment .against the corporation must be evidence of the debt ex necessitate. On this head the language of counsel in their printed argument is as follows:
*461 “ The action was for trespass on the case, for a tort (entering upon and taking oils from the lands of the plaintiff), which was unliquidated except by the verdict which possibly contained an allowance in the nature of punitive damages. It was impossible of exact computation, containing allowances for costs provable in no other way.. It would be absurd, unreasonable, and productive of uncertainty and confusion, to require the submission to another jury of the facts which led to this verdict, for if they found a less amount it-Is palpable that a part only of the debt of the company would be recovered against these defendants, who are liable for all the debts of the company. If they gave a larger verdict these defendants would be the first to complain. Under the statute they are severally as well as jointly liable. Each one could be sued apart from the others, and if one trustee is sued alone all the trustees shall contribute a ratable share of the amount paid on such judgment. If in each suit against each trustee the whole evidence of the original claim had to be gone into and separate verdicts rendered, which might be for, very dissimilar amounts, the contribution would become a matter more involved than the original claim. As the theory on which the judgment is made conclusive is, that, as the parties to it have had their day in court and have exhausted their proofs, they are thereby es-topped from denying its validity.”
But if this proves anything it proves too much, and instead of showing the thing to be proved that the judgment is conclusive evidence of a debt, it establishes, on the contrary, that a liability on the part of the corporation for a tort, though after-wards reduced to judgment against it, is not a debt of the corporation, even when in judgment, within the meaning of the statute imposing upon the trustees the penalty sought to be enforced in this action for not making and publishing an annual report showing, among other things, the amount of its existing debts. Eor, keeping in view the statement now urged by counsel, of the impossibility, in advance of liquidation by the verdict of a jury, of even approximately, much less accurately, stating the amount of such a liability, can it be supposed that the diity to do so is devolved upon the trustees, within either *462 the letter or spirit of this statute, under penalty of becoming personally liable to pay whatever judgment may be thereafter rendered on account thereof against'the corporation ? Surely not. Such claims are not within the contemplation of the act. The mischief to be prevented by its requirements has no relation to liabilities of that description. The creditors to be protected are those only who become such by voluntary transac- ■ tions, in reference to which, for their benefit, the information becomes important as to the debts of the company.
The precise point does not appear to have arisen under this act, so as to have become the subject of a decision by the New York Court of Appeals. But it seems to be virtually decided in
Heacock
v. Sherman,
“ That the stockholders of the said corporation shall be holden jointly and severally to the nominal amount of their stock for the payment of all debts contracted by the said corporation or by their agents; and any person or persons, having any demand against the said corporation, may she any stockholder or stockholders in any court having cognizance thereof, and i J cover the same with costs; provided that no stockholder shad' be obliged to pay more in the whole than the amount of- the stock he may.hold in the said company at the time the debt accrued.” Mr. Justice Nelson, delivering the opinion1 of 'the court, said: “ The term demand is undoubtedly broad enough, if it stood alone, to embrace the claim of the plaintiff. .. . . We must, however, look at the whole section and the conneotion in which it stands, in order to 6x its meaning in this case. The stockholders, in the first place, áre made.; jointly and severally holden for the payment of all debts contracted by the corporation or by their agents. The liability' is. here declared; it is new and unknown to the common law and is~ in terms limited to demands ex contractu. The resid.ue.-of section was not intended to extend the liability thus declared, but is in *463 furtherance of the remedy. . . . But the proviso to the section is conclusive upon the point.. Any person having a demand against the corporation is authorized to sue any stockholder in any court, &c., ‘ provided that no stockholder shall he obliged to pay more in the whole than the amount of the stock he may hold in said company at the time the debt accrued; ’ , thereby clearly qualifying .the enlarged meaning of the word demand, and showing satisfactorily that it was used by the legislature to denote a demand arising upon contract. Damage arising upon tort is not a debt accrued, within any reasonable construction of that term. It is apparent, as well frona a view of the whole section as from 'an analysis of its parts, that the intent of the framers of it was only to make the stockholders individually responsible for the debts of the company.”
This reasoning and conclusion, as applied to the present case, is not weakened, but rather strengthened, by the language cited and relied on by counsel in support of his proposition, from the opinion of Mr. Justice Story in
Carver
v.
The Braintree Manufacturing Co.,
But, as we have already seen, the statute involved in this discussion is not a remedial statute, to be broadly and liberally construed; but is a penal statute with provisions of a highly rigorous nature, to be construed most favorably for those sought to be charged under it, and with strictness against their *464 alleged liability. Under such a rule of construction its language is limited, by its own terms, to a liability, on the part of the trustees, to debts of the corporation existing and arising ex contractu.
It is finally insisted that a judgment against the corporation, although founded upon a tort, becomes ipso facto a debt by contract, being a contract of record, or a specialty in the nature of a contract.
But we have already seen that the settled course of decision in the New York Court of Appeals rejects the judgment against the corporation as either evidence or ground of liability against the trustees, and founds the latter upon the obligation, of the corporation on which the judgment itself rests. And it was decided by this court, in the case of
Louisiana
v.
New
Orleans,
The same definition applies in. the present instance, and excludes the liability of the defendants, as trustees of the corporation, for its torts,'although reduced to judgment.
We find no error in the judgment of the Circuit Court, and it is accordingly Affirmed.