203 Mass. 551 | Mass. | 1909
1. Unless the personal liability of stockholders in trust companies subject to R. L. c. 116 depends upon one set of facts when the personal liability is enforced by a creditor,
In Priest v. Essex Hat Manuf. Co., as in the case at bar, the return on the execution was made on the day on which the demand under it was made upon the corporation. In deciding that case Wells, J., speaking for this court, said: “Section 4 provides that ‘ after the execution shall be so returned, the judgment creditor, or any other creditor, may file a bill in equity, in behalf of himself and all other creditors.’ This shows conclusively that the return of the execution contemplated by the statute is its return unsatisfied after the neglect of the corporation for the period of thirty days, which alone warrants a return upon which the creditors can proceed against directors or stockholders. One alternative allowed to the corporation is, at any time within the thirty days, to exhibit to the officer property that he may take upon the execution. This implies that the execution is to remain in his hands for that purpose; and before the directors or stockholders can be proceeded against, his return must show default in this respect. In the present case, the return, having been made on the same day with the first demand, not only fails to show that the execution remained unsatisfied at the end of the thirty days thereafter, but shows affirmatively that the opportunity was not kept open for thirty days for the corporation to exhibit property that might be taken upon it. We think this is a step in the process which must be taken by formal proceedings; and cannot be supplied by proof that the corporation neglected to pay the debt, made no attempt to exhibit property, and had none to exhibit. The omission cannot be regarded as immaterial because it does not affect the equity of the case. The liability does not rest upon equity, but is of strict statute imposition.”
The statute under consideration in Priest v. Essex Hat Manuf. Co, was St. 1862, c. 218, § 3, and is the very act which is embodied to-day in R. L. c. 110, § 60.
The. return in the case at bar, made on the day of the demand although in fact filed in court more than thirty days later, does not satisfy the statute in requiring a “ return unsatisfied after the neglect of the corporation for the period of thirty days.”
No other construction can he given to R. L. c. 116, § 30, as amended by St. 1905, c. 228. So amended it provides: “ The provisions of sections sixty to sixty-eight, inclusive, of chapter one hundred and ten shall apply to and regulate the enforcement of such liability, and receivers of insolvent trust companies may, with the approval of the Supreme Judicial Court, enforce such liability.” “ Such liability ” which the receiver can enforce cannot be construed to be other than “ such liability ” the enforcement of which is made dependent upon and regulated by R. L. c. 110, §§ 60-68.
Bill dismissed.