| Ind. | May 26, 1856
Suit against the Wabash Valley BcmJe and the stockholders thereof, jointly, to recover the amount of a deposit not paid on demand. Judgment below for the plaintiff, to be levied first of the property of the bank, and, failing, &c., then upon, &c. The stockholders demurred to the complaint, on the ground that a joint suit could not be maintained, at least in the first instance, against the bank and the stockholders. They contend that the bank should be prosecuted to insolvency, before recourse had upon the stockholders. This is the only point in the case.
The general banking law, under which the Wabash Valley Bcmk was organized, and which is, therefore, its charter, contains these sections:
“ Sec. 24. All persons having demands against any such association, may maintain actions against the president thereof; which suits or actions shall not abate by reason of the death, resignation or removal from office of such
“Sec. 25. Every shareholder of any such association shall be liable in his individual capacity for any contract, debt or engagement of such association, to an amount over and above his stock equal to the amount of his shares of such stock.”
These sections authorize a suit against the bank, make the stockholders individually liable, and, where there is judgment against the bank, require it to be first levied of the property of the institution, thereby implying that upon the same judgment execution may be had against individual property. Still, they do not, with any precision, settle the question of parties, and we have been able to find no decision aiding us much in determining it. Bogardus v. The Rosendale Manufacturing Company, first reported in 4 Sandf. R. 89, (Superior Court of New-York city,) and again in 3 Selden (N. Y.) R. 147, (Court of Appeals,) slightly favors the joinder of the corporation and the stockholders in the same suit. The Superior Court decided against the right of such joinder in that case. The Court of Appeals reversed the decision, holding the contrary. The charter in question in that suit differed somewhat from our free bank law, and the suit was in chancery. But the reasoning of the Court of Appeals has some bearing upon the present case, and the chancery rule as to parties prevails in our consolidated system of practice. Section 18, p. 31, 2 R. S. 1852, reads thus:
“Any person may be made a defendant who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved.”
It is consistent with the letter and spirit of this section, to join the stockholders in a suit with the bank, and it
We do not say that it is necessary to join the bank and stockholders in the same suit. A party may, perhaps, if he prefers so to do, first sue the back alone. What we decide is, that such joinder is not error, but, on the contrary, peculiarly proper; the judgment in the cases severally, when for the plaintiff, being leviable first of the goods and chattels, &c., of the bank.
The judgment is afiirmed, with 2 per cent, damages and costs.