The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-06-03
SUPERIOR COURT.
Important Bank suit-Opinion of Judge
McCunn.
RafOrp JudUe McCnnn


sued in the Superior Court Of this city on section
OF the act Incorporating the bank which provided
that without any action against the stakeholder bis
private property should be bound by judgement
against the bank, and that the Sheriff should levy
the execution against the bank that private pro-
perty in satisfaction Of judgement against the bank.
1t was held-First, that this section imposes no
personal liability on the stakeholder which may be
made the ground Of an action against him.
Secondly, that this section is mere regulation OF
the remedy, and has no force or effect beyond the
territory Of Georgia.
And thirdly. that even though the section imposes
personal liability the stockhoder il at the same
time provides remedy for enforcing that liability,
that the remedy SO provided Is exclusive, and the
stakeholder cannot be pursued here in form and by
an action different from that provided in the section.
OPINION
After hearing argument In the case Judge McCunn
has rendered the following opinion:-
Notwithstanding the doubt suggested In whitford
w. Panama Railroad Company, % New York. 465,
and In Patterson Baker SO Barbour, 1872 and the
positive diotam In Billiard vs: Bell, Mason, 243;
Bank Of the United States VS.. Dallan, Danna, 67l:
Lane We. Norris 10 Georgia. l64 and Thornton vs.
Lane, II Georgia. Notwithstanding the adverse
assume, on the precedent OF er pate, Van Ripper 20
Wendell, 616, that statutory liability created by
ed IN its operations to the territory Of that State
but, partaking OF the nature of contract, IL efl
caclons everywhere cr II valid according to the
and enforced in any tribunal to the juris-
diction Of which the defendant may be
am unable to understand after the most attentive
examination, that the above rected section imposes
any personal liability whatever on the defendant.
On the contrary 1t is manifest as well from the eX
press provisions as from the general scope OF the
section, that its effect is merely to bind the property
Of the defendant to subject 1t to execution on
Judgment against the bank. And this construc
tion winch would obviously result from the phrase.
negative clause, Is confirmed by the provision that
EXECUTION against The bank Without the necessity Of
an action against him. We are not to assume
that these words are needless and nugatory
sense and If they mean any thing they are
intended to preclude the inference OF liability on
suit of creditor Of the Corporation No doubt the
qualification was inserted for the benefit OF the cred
remedy than by action against the individual stock
holder; but with its object we have no concern,
defendant. The section so far as it subjects the
stockboder TO any responsibility for the corporate
manie st IN SeroTation Of tie COMMON lava and
by all authorities must be restrained in its Ope-
ration by strict construction Il Parsons on Oon-
tracts l43) Hence, whatever may be our speculative
opinion as TO the policy OF the Legislature in enacting
beyond It's literal terms, by enlargng and aggra-
waiting the liability of the stockholder; and Ii besides
the lien imposed upon the properiy Of the stock.
interpret 1t as TO charge him with personal liza
by we should t subject a MN 70 burden s s .aom
exempt. Nor because under certain conceivable
circumstances the remedy OF the creditor would be
illusory In the absence OF right OF action against
the stakeholder, IL 1t incumbent upon the courts Of
this state TO supplement and reinforce the defective
OF Inconvenience should be addressed to the Legis
lature Of Georgia, to induce an amendment
% W s with court whose duty '" is sim
ply to declare its legitimate construction.
tBroom's Comm, p. 81 In my view, the legal con-
ST Is. IL
does not impose the defendant q liability which
may be MADE tine ground 81 an action IN n
property SO as to subject It TO execution IN satsfac
lion OF . judgment against the bank The only ef
dlviiuai corporator and to bind It su6 snodo only
& e. by subecting It TO levy on on execution against
of this court TO expand 80 narrow and restricted
liability into an absolute personal responsibility for
AGAINST the defendant. oo,s u had o been
properly Of the stockholder they would have
so provided whereas On a e contrary, aney nave
execution against his property, and have in terms
neeatived right to redress against him by personal
action. IL is evident that no acton against the de-
PENDANT could be founded on this statute in the
courts Of Georgia, and q yorfto,f he cannot be pur
sued personally In the tribunals Of this state. The
distinction between personal liability capable OF
enforcement by action IN persondm and mere
right OF recourse against property which can he
realized onlS by proceeding az rem is too obvious
ausi familiar 70 require illustration. II any authority
were needed to establish snat the latter liability
found In Melan Va. Duke OF FItz James, l
Bos. & Pull, l3s. Contemplating the section under
review In all Its parts and provisions, see very
plainly that II il nothing else than mode Of execu-
ton prescribed by Legislature OF Georgia. its
ton Assuming Judgment already rendered
against the bank at suit OF corporate creditor, IL
proceeds 10 designate In what manner and bT what
means mat Judgment shall be satisfied. And It is
extremely material TO observe that IN prescribing
TIE mode o. e OF o 81 'a a s rec
creditor hut In the style Of mandate TO the Sheriff.
III shall be the duty" &C. In word v By the
remedy only, and imposed on lts own minis
terial onlcer the duty Of enforcing the remedy Now
such statute IS OF no recognition or effect beyond
the territory Of the state enactng It, and any right
or obi lgatnn It may seem TO imply cannot be made
upon properly il Is imperative beyond the ursdic.
lion OF the court, story on Conf OF Laws sections
late s,cs S'' eS sei al us o,ss@,Sae, and
outside the territory OF Georgia Is q mere
nS Goo wheaton, si aw n'er secan s0Ry eu s
Comm. $50 edition lsoGD; Browns Comm, IS,
i5 westlaKc, Private Inter: Law, art sos; also arr.
bart Mason. $40; Pickering vs.. Flax, verm, 1O2;
bonn vs.. Lippman, q. Fin. il. But apart
plaintiffs that the section In dispute does impose
liability on the defendant, which, under crcurn-
against hlni there stIi remains an nsuperable bar
to their IN this action and In this tribunal.
II II ancient ana incOntroNertibe principle OF the
common law that when statute creates right,
and OF the Same time provides remedy for the VIM
dication OF that right the party seeking TO enforce
the right IL restricted to the statutory remedy,
| and has no other redress. Chancellor Walworth
| thus propounds the rule in Renwick VS.. Morris,
fIl b,b:-"when new right is given by the statute,
aud remedy given for the violation of II, the party
l. confined to this remedy SO Mr.. Justice Bron-
son. In STAFFORD Ingersoll, hin, 40 says:'1f
statute create right which did not exist bofQre, and
| prescribes remedy for the violation OF II that
| remedy must be pursued" Ana chief Justice
! savage. In Mcke0n vs.. Cnfcrty, Weud., 4o5:--
without the aid OF the statute no action at all woud
lie; the statute remedy must therefore be pursued
| LORD Tenterden In Rochester vs. Bridges, /, u. A..
s47"when an act creates an obligation aud cnforces
the performance In particular manner, we take
| II 70 he general rule that performance cannot be
| enforced IN any other Manner Lord Campbell. G.
j., IN Couch vs. steel, ri. ana W. Attn the
present case " the statute had prescribed partlo
| la M lV ot pf no.