30 N.H. 456 | Superior Court of New Hampshire | 1855
The witness was a member of the corporation, plaintiffs in the action, till within a short time before the trial, when he sold his stock, probably for the purpose of becoming a witness to facts, in relation to which no other person could testify. The objection to his admission is founded upon theidea that as a stockholder in the bank, and member of the corporation, the witness was liable for the payment ■of all the debts and liabilities of the bank, incurred during ■the time he belonged to the corporation, and that this liability was not affected in any way by the sale of his interest.
The courts take notiee that banks are of the class of corporations where a contingent personal liability is imposed upon the corporators, in case certain requisites are not complied with, as well as the nature and character of those requisites. But no evidence was offered that any facts exist in this case, which subject the stockholders to liability, and the court will not presume that they exist, without evidence. Upon the case as it appears, the ordinary presumption applies, that the stockholders are not liable personally, or individually, for the debts of the corporation.
If, however, such facts were shown as would render the stockholders of the corporation subject to a liability for its debts, we think the witness in this case would not be thereby rendered incompetent, first, because the action being brought by the corporation for the recovery of a debt claimed to be due to them, no judgment can be recovered against the corporation, except for costs, and as the liability on such judgment would first accrue on the rendition of the judgment, and after the witness had ceased to be a member of the corporation, he could in no event be liable; and second, because the interest which disqualifies a witness must be direct and certain ; it is not enough if it is uncertain, remote or contingent. Milldam Foundry v. Hovey, 21 Pick. 456.
The general principle that an uncertain, remote and contingent interest, is not sufficient to exclude a witness, is recognized in many cases and elementary books, as 1 Phill. Ev. 121; 1 Cow. & Hill’s Notes 130; 1 Greenl. Ev. §§ 390, 397; 2 Stark. Ev. 745; Arch. P. & Ev. 43; Carter v. Pearce, 1 D. & E. 163; Clark v. Garmon, Ry. & Moo. 31;
The liability of the stockholder, in the cases limited by the statute, for the debts of the corporation, is in the nature of a conditional suretyship, a liability to pay the debts of the corporation in certain contingencies, if the corporation does not pay them. Now it has never been held that a surety is disqualified by his liability as such, to testify in relation to the claims of his principal against others, because a recovery by the principal would increase his means to pay and thus to exonerate the surety. Carter v. Pierce, 1 D. & E. 163; Ely v. Forward, 7 Mass. Rep. 26; Duke v. Leland, 6 Cush. 259; Riggins v. Brown, 12 Geo. Rep. 271; Ten Eyek v. Bill, 5 Wend. 55; Willings v. Consequa, Pet. S. C. 301.
If by the death, bankruptcy or insolvency of the principal, the fund for the payment of the debts is made certain, and it is shown to be insufficient, the surety would be held incompetent in such a case, because no one can by his testimony increase or protect the fund which he is entitled to share. Craig v. Cundell, 1 Camp. 381; Carpenter v. Creat, 6 Hill 556; Flinro v. Chase, 4 Denio. 85; Duel v. Fisher, 4 Denio. 516; Stebbins v. Sackett, 5 Conn. Rep. 258; Carr v. Hilton, 1 Curt. C. C. 390.
But if the fund appears to be ample, the competency of the witness is not affected, because it then becomes uncertain and contingent whether his interest will be affected by his testimony. Nowell v. Davis, 5 B. & Ad. 368; Paull v. Brown, 6 Esp. 34; Duel v. Fisher, 4 Denio. 516; Boyer v. Kendell, 14 S. & R. 178.
Where the principal debtor is Jiving, and has the control of his own funds, it is, of course, entirely contingent and uncertain whether the interests of a surety can be affected by his testimony; and his competency is not affected until he has acquired some right or lien upon the fund in dispute. Peyton v. Hallett, 1 Caines 363; Stewart v. Kip, 5 Johns. 256; Ten Eyek v. Bill, 5 Wend. 55.
To render the witness in the present case incompetent, it must be shown, not only that the duties required of the corporation to protect its members from personal liability have been neglected, but to obviate the uncertain and contingent character of the liability, it should be shown that the means of the corporation were insufficient for the payment of their debts; that a legal demand had been made of the corporation, and the debt had not been paid, or property exposed to attachment, and, perhaps, that sixty days have since expired.
II. In the case of Carter v. Burley, 9 N. H. Rep. 538, it was decided that the holder of a note or bill may, if he pleases, forward notice on the day of the dishonor, and any prior party receiving notice may transmit a notice on the day he receives it; and this decision was affirmed, as to the first point, in Smith v. Little, 10 N. H. Rep. 526; and in the former case it was held, that upon the dishonor of a bill or note, when the parties to it reside in different places, it is sufficient, if the holder puts a notice into the post office, in season to be transmitted by the mail of the next day, and each indorser may in like manner transmit a notice by the mail of the day succeeding that on which he receives notice. Sut if the party receiving notice cannot by the exercise of reasonable diligence forward notice to a prior party by the mail of the day following, it will be sufficient if sent by the next mail. These principles, we think, are fully supported by the authorities cited by the court. They are plain and
III. The notice dated September 26,1851, informed the indorser that D. B. Kimball’s acceptance for $682, indorsed by him and due that day, had been presented and payment was refused, and that he was held answerable. A case might be supposed where a notice in this form might be insufficient, because it failed to identify a particular note, but that could not be assumed to be the case here. If there was any uncertainty, the facts, out of which that uncertainty arises, should be shown. For all common cases, the name of the acceptor, the amount, and day of payment, and the fact of the indorsement, are all that can be necessary to identify the note or acceptance. The ease comes clearly within the decision in Smith v. Little, before cited. Story on Prom. Notes, §§ 348, 352. See Clark v. Eldridge, 13 Met. 96; Wheaton v. Wilmarth, 13 Met. 422; Bank v. Warden, Comst. 413; Remer v. Downer, 23 Wend. 620.
IY. The defendant, the indorser, resided at Deerfield. There are two post offices in that town, designated as Deer-field and South Deerfield, about six miles apart. The defendant resided near the latter. The notice was directed to the defendant at Deerfield. Such cases are very frequent, and the rule is important. The ordinary rule requires the notice to be addressed to the defendant at his place of residence. It was so done. There is no locality or district legally known as South Deerfield. It is a name of a post office merely.
There are cases where it is held that if a party reside in a county, and not in a town, it will be sufficient to send notice to him, directed to him at the court house, or seat of justice of the county, although in point of fact there is a post office nearer to his residence, where he usually receives
It is not necessary to anticipate how the question might be varied, if it appeared affirmatively that the cashier had been notified that the defendant’s post office address was South Deerfield. See Carmen v. Bank, 1 Lane’s An. R. 369; Ireland v. Kip, 11 Johns. 231; Brent v. Bank, 1 Pet. S. C. 89; Downer v. Remer, before cited.
Nothing appears to show that the fact of the defendant’s residence near the South Deerfield post office was known to any of the other parties.
The rulings of the court being sustained, there must be,
Judgment on the verdict.
