Upton v. Pratt
106 Mass. 344
Mass.
1871
Check Treatment
Mobton, J.

After the decision in this case reported in 103 Mass. 551, the superior court rendered a judgment on the verdict for the defendants for their costs. The clerk taxed a single bill of costs, which taxation was affirmed by the court, and the defendants appealed. They claim that they are entitled to several bills of costs, under the rule that where an action is brought against several tortfeasors, and the defendants sever in their ±,leadings, they are severally entitled to costs if they prevail. Fales v. Stone, 9 Met. 316. Mason v. Waite, 1 Pick. 452. But we are of opinion that the rule does not apply to a case like this. This action is not to recover a penalty against the directors, but to enforce a liability for a debt of the corporation imposed upon them by the Gen. Sts. c. 58, § 48. The fiftieth section provides that, where the directors “ are liable to pay an execution against the company, the creditor may recover the same by a suit in equity or by an action at law against the directors.” Under this provision the creditor may maintain an action of contract, and he must join all the directors as defendants. The statute confers the right, and creates the privity necessary to maintain such action. This action, therefore, can be maintained only’ as an action of contract upon a statute liability. The fact that the defendants *346filed separate answers does not expose the plaintiff to several bills of costs. It was not necessary for the defendants to sever in their pleadings, and there was a single joint defence to the action. Under such circumstances, they are entitled to only one bill of costs. Judgment affirmed.