Nichols v. Taunton Safe Deposit & Trust Co., 203 Mass. 551

Nichols v. Taunton Safe Deposit & Trust Co.

203 Mass. 551 | Mass. | 1909

Loring, J.

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, *554and upon another set of facts when it is enforced by a receiver, the decision of this court in Priest v. Essex Hat Manuf. Co. 115 Mass. 380, is fatal to the maintenance of this suit.

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.”

*5552. In our opinion the amendment to R. L. c. 116, § 30, made by St. 1905, c. 228, did not create a new liability on the part of stockholders of trust companies subject to that act, but its scope was to enable a receiver to do what both before and after St. 1905, c. 228, could be done by any creditor. R. L. c. 116, § 30, provides that R. L. c. 110, §§ 60-68, should apply to regulate the enforcement of the liability of stockholders in trust companies described in R. L. c. 116, § 1. By the express provisions of R. L. c. 110, § 62, any creditor can bring a bill in equity in behalf of himself and all other creditors to enforce the liability of stockholders after that liability has been brought into being by the recovery of a judgment followed by the neglect of the corporation, for thirty days after demand made on execution, to pay the amount due with the officer’s fees, or to exhibit to him real or personal property of the corporation subject to be taken on execution sufficient to satisfy the same, and the return of the execution unsatisfied. The only change made by St. 1905, c. 228, was to enable a receiver, if there was one, as well as any creditor, to bring the bill, which, no matter by whom brought, was a bill in behalf of all creditors to enforce a liability which had theretofore been brought into being by complying with the statutory requirements.

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.