Mann v. CurrieMann v. Currie
Thе principal questions which are raised in these cases were decided by the late vice chancellor of the first circuit, then holding the office of assistant vice chancellor. (Mann, receiver, &c. v. Pentz, 2 Sandf. Ch. Rep. 258.) It was contended on the argument by the counsеl for the defendants, that inasmuch as I was not bound by the opinion of the assistant vice chancellor, merely on the grоund of authority, I ought to re-examine the questions which were decided by him ; and the cases were fully argued before me in all their aspects. Upon reflection I am convinced that there are controlling reasons why I should not, in these suits, rеview the decision made in the case of Mann v. Pentz. In the first place the parties are different; and secondly, an aрpeal has been taken from that decision, which is now pending before the supreme court. By the rule- which has beеn adopted, for the distribution of business in this district, the general term has been designated as the appellate branch of the court.. And I consider it the right of the parties to the appeal, to have their cause heard by the three judgеs, without being anticipated by any decision of mine. A different course might be productive of confusion, and inconsistency in the decisions of the several branches of the court; which a regard for the sound and safe administration of justice ought to induce me, if possible, to avoid. With these views, which I am the more readily induced to adopt from a consideration of
Before considering the main questions which distinguish these cases from the case of Mann v. Pentz, I will advert to two questions, which although founded on a state of facts that existed in that case, still do not appeаr to have been raised or decided: First, that Currie, not being an original subscriber, made no contract with the compаny; and second, that under the assignment of the stock to him, the most that he agreed to do was, to forfeit the moneys which had previously been paid, in case he should fail to comply with the calls of the company. The answer to the first quеstion is, that if he became a stockholder by a transfer to him of the stock of an original subscriber, he at once adopted his contract with the company, and became substituted in his place, both as regards his rights and liabilities. As to the sеcond question, the general principle is well settled, that the right of the company to enforce a forfeiturе is but a cumulative remedy; and, in this respect, there is nothing to distinguish the case of an assignee from that of an original stoсkholder.
The only question, then, which remains for my decision in the case of Currie, which is first in order, is, whether the defendant is the pаrty who should be made liable for the balance unpaid upon the fifty shares of the stock, standing in his name on the books of the company.
By the ninth section of the statute, (2 R. S. 469,) under which this suit is brought, it is provided that, “ if there shall be any sum remaining due upon any share of the stock, the reсeiver shall immediately proceed, and recover the same, and for that purpose may file his bill in chancеry,” &c. But the statute does not say from whom “ he shall recover the same.” And I am called upon to decide what, in this respect, is ito meaning, and legal effect, as applicable to the circumstances of this case. If this question had not already been settled by
As regards the case of Yan Deuzer, there is nothing to distinguish it from the case of Currie. It appears that Yan Deuzer had executed a powеr of attorney to Carhart, to transfer the stock which stood in his name, but that no transfer was made upon the books of the Company.
As to the case of Leland¡ I See nothing to induce me to dif
The plaintiff is entitled to a decree for the аmount unpaid on the shares of stock, standing on the books of the company, in the names of the defendants, in each of the cases.