20 Wend. 614 | N.Y. Sup. Ct. | 1839
Was the proof of the debt sufficient in the first instance 1 I think it was. The statute declares, § 3, that the application may be made by any creditor, &c. having a demand against the debtor personally, arising upon contract, &c. amounting to $100 or upwards, &c. By § 4, the application is to be in writing, and verified by the affidavit of the creditor, See. in which shall be specified the sum,' &c. over and above all discounts, &c. and the grounds, &c. The objection for insufficiency is founded mainly on the supposed defect in not showing, by production of the charter, how the personal liability of Van Riper arose. That was not necessary. Had the proof, at the outset, stated that he was a corporator, then prima facie ' he would not have been personally liable, and it must have been shown how he came to form an exception to the general rule which exempts the member of an aggregate corporation. But the application did not state that the Belleville Bank was incorporated, nor imply that, except in the clause charging personal liability. The bank might have been a mere partnership or joint stock company ; and that, I think, must have been intended upon the language of the application, had it not gone on to show- how the liability arose. The common law favors the personal liability of the members for all the debts of a company. Exemption is an exception, to be shown by the other side. Strictly, therefore it was not necessary to show at all how Van Riper came to be-personally liable.
But if it were necessary to show personal liability specially, it was sufficiently done. The statute does not require primary proof, but only an affidavit j nor does it demand the same particularity of statement as in a declaration. The affidavit must show that the demand arose on contract, and the amount due. These are
Then is Van Riper personally liable upon the charter now shown within the meaning of the non-resident attachment statute 1 This is a material inquiry; for personal liability is made an express ingredient of jurisdiction. To this the charter is express. The president and all the directors are, by the charter, made jointly and severally liable, as individuals.
But the charter, after declaring that they shall be personally liable, immediately goes on to provide that a joint or several action may be brought, and the plaintiff may declare in a general form. It is objected that the directors being corporators and not liable at the common law, but the statute raising their liability and in the same section giving a remedy, that alone must be pursued. The answer is, that contracting as an agent and director under such a charter, is the same in legal effect as if the directors had signed and bound themselves as principal drawers or makers in their capacity as natural persons. The subsequent provision in the statute was obviously intended merely to give the plaintiff a more general and easy remedy at his option. It neither expressly denies the general remedies given by law against debtors, nor is there any rule of construction which attaches an implied denial of those remedies to such a clause. No doubt a state may pass a law tying a creditor up to a certain remedy on a contract, where the law is passed prior to the contract being made. As the creditor then knows the law, he contracts cum onere. But the case at bar presents no such instance. The charter does not confine the creditor to any particular remedy. It^raises in his favor a debt against an individual, and leaves his remedy to the general methods of the law. This view also answers another objection taken, that the remedy given by the charter is local to the state of New-Jersey. The charter in fact institutes no remedy. It binds Van Riper as a debtor. It raises a debt against him, which may, in its own nature, be enforced wherever the
My opinion is, that a complete case of unqualified personal liability is made out within the meaning of the non-resident debtor act, and that the motion1 to set aside the proceedings must foe-denied.
