Cole v. Butler

May, J.

The liability of the defendant in this action under the provisions of the R. S. of 1841, chap. 76, sects. 18, 19, 20, in force when the suit was brought, is conceded by the learned counsel in defence, unless the facts hereinafter stated, upon which he relies, shall lead to a different conclusion. The facts’ relied on, it is contended, furnish two distinct and sufficient grounds of defence. We will look at them and their legal effect, not in the order in which they have been presented in the argument, but as they occurred in point of time.

It is said then, in the first place, that there was no legal service of the plaintiff’s writ against the Georges Canal Company, and that, for that reason, the defendant may now avoid the effect of the judgment obtained in that suit, so far as relates to his liability to pay any part of the execution which issued thereon. Upon an examination of that writ, which is a part of the case, it does not appear to have been in the hands of an officer at all. The only evidence of service consists in the following certificate bearing even date with, and found upon the back of the writ: “ January 25, 1851. Legal and due service upon me this day, one of the directors *403 of the within named Georges Canal Company, is hereby acknowledged,” signed or purporting to have been signed by “John Miller.” It does not appear whether the action was answered to in court, or the judgment rendered upon default. Upon the authority of Came v. Bridgham, 39 Maine R., 35, and the eases there cited, we are satisfied that if the evidence of service or the service itself is defective, no advantage can be taken of it in this suit. The judgment, notwithstanding the service of the writ may not be in conformity with the requirements of the statute, is to be deemed valid and binding upon all the parties and privies to it until it is reversed.

The other ground of defence consists in the fact that the defendant, after all the preliminary proceedings and contingencies necessary to fix his liability to the plaintiff, had occurred, has been again called upon by other judgment creditors of the corporation in conformity with the statute, and that the defendant, to save his property from seizure upon their executions or to prevent the institution of new suits against him, has paid to such creditors in part satisfaction of their judgments, a sum equal to the amount of his stock. Those subsequently moving creditors do not appear to have instituted their suits against the corporation until long after the commencement of this suit.

The general purpose of the particular provisions of the statute under consideration, was to give additional security to the creditors of the corporations to which they apply, by making the stockholders, who were such when the debts were contracted, and their property, liable by due proceedings, for the payment of such debts in all cases where there should be a failure to obtain the amount from corporate property. The legislative intention to give to a creditor, who should bring bis case within the provisions of the statute, security for his debt in either of the modes, at his election, which the statute provides cannot ho doubted; and the statute, if susceptible of it, should receive a construction which will effectuate this intent. To allow one creditor, *404 after another by a compliance with the statute, had laid the foundation of his right to recover of any particular stockholder to the amount of his stock, to step in, and by electing the shorter remedy provided by the statute, thereby to defeat a pending action, which the same statute had clearly authorized, would be inconsistent with the general purpose to give security before stated, and not in harmony with the general principle running through all our statutes, which is to give to the more vigilant party, when moving in conformity to the law, the fruit appropriate to his effort. We therefore think that a creditor who first moves and proceeds so far as to establish his right to seize the property of a stockholder, or to bring his suit, obtains a priority of right in the fund which the statute has in effect, set apart for the payment of his debt. By such proceedings and the institution of a suit within the period fixed by the statute, he acquires a right to recover against the stockholder to the amount of his stock, with which no other creditor subsequently moving, can rightfully interfere j and any payment made to any such subsequently moving creditor by such stockholder, must be regarded as a payment in his own wrong.

It is contended that the defendant in this case, is to be justified in making a subsequent payment to other creditors upon the ground that his property was liable to seizure under the 18th and 19th sections of the statute. We are not satisfied that any such seizure could be lawfully made. If the construction of the statute to which we have arrived is correct then no other creditor, after the defendant’s liability to the plaintiff had become fixed, could rightfully seize the defendant’s property upon any other execution against the corporation, so long as the plaintiff’s right to the fund arising out of the defendant’s liability continued, and the rights of such subsequently moving creditors must be subject to those of the plaintiff until his rights are either lost or abandoned. In our judgment, therefore, the plaintiff may properly have judgment for the amount of the fund which the statute impliedly at least, has set apart for the payment *405 of bis debt, notwithstanding the subsequent proceedings on which the defendant relies.

This construction is in accordance with the familiar maxim, Nemo debet lis vexari, si eonstet curiae quod sit pro una et eadem causa, which has often been applied to actions upon penal statutes in which no priority of right was expressly given. In such actions it has been often held that the plaintiff first moving attaches a right in himself to the penalty of which he cannot be deprived by a subsequent suit in the name of another informer, though judgment be first recovered in the latter suit. Beadleston v. Sprague, 6 Johns., 101 ; Pike v. Madbury, 12 N. H., 262. So, too, where a statute authorized an action qui tarn or an indictment for taking usurous interest, it was held that the pendency of an action for the same cause, might well be pleaded in abatement of a subsequent indictment. Commonwealth v. Churchell, 5 Mass., 174 .

The rights of these parties being as is conceded unaffected by the repeal or modification of the statute on which this action was brought, by reason of a saving clause as to actions then pending, the plaintiff, by the provisions of section 20, is entitled to recover an amount not exceeding the amount of the defendant’s stock. That amount is one hundred dollars. No provision is made for his recovering anymore as debt or damages, not even by the addition of interest from the date of the writ; but as the prevailing party he will be entitled to recover his costs. Gross v. Hill, 36 Maine, 22.

Defendant to be defaulted.