author: Jones, J. Bronson, J.

text:
    Corning and Horner vs. McCullough.
    A suit against a stockholder of a corporation to charge him individually with s debt contracted by it, pursuant to a provision in the act of incorporation, is not an action upon a statute, for a forfeiture or cause, the lenefit anil suit whereof is limile.il to the party aggrieved,” and therefore is not barred by the three years limitation prescribed in the statute, (2 JR, S. 29S, § 31,) for actions of that class
    The period of six years is the only limitation provided for suits of this description.
    Wjiere the charter of an incorporated pompa ny provides that the stockholders shall be liable for its debts, and that a creditor may, after judgment obtained against the corporation, and execution returned unsatisfied, sue any stockholder and recover his demand, such stockholders are liable in an orignal and primary sense, like partners or members of an unincorporated association, and their liability is not created by the statute of incorporation.
    it seems that the short statute of limitations above referred to is intended only to embrace penalties and forfeitures, properly so called, and other causes of action penal in their nature, and where both the cause of action and the remedy are given by statute ; but does not extend to cases where the action is partly given by the common law and partly by statute.
    Demurrer to plea. Corning and Horner sued McCullough in -assumpsit under the provisions of the act incorporating the Rossie Galena Company. ' (Stat. of 1837, p. 445.) The 9th section of that act provides, that the stockholders of the corporation shall be jointly and severally personally liable for the payment of all debts and demands contracted by the-corporation, and that any person having any demand against such corporation, may sue any stockholder or director in any Court having cognizance thereof, and recover the same with costs. The 10th section provides, that before any such suit shall be commenced judgment shall have been obtained against the corporation, and execution issued thereon, and returned unsatisfied, or that the corporation shall have been dissolved. The declaration contained the necessary averments to charge the defendant as a stockholder, personally, with a debt contracted for goods sold by the plaintiffs to the company. The defendant pleaded that the cause of action did not accrue within three years next before the commencement of the suit. To this plea the plaintiffs demurred, and the defendant joined in demurrer. The Supreme Court held the plea a good bar under 2 B. S. 298, § 31, for the reasons assigned in the case of Freeland and others vs. McCullough, (1 Benio 414,) and gave judgment for the defendant. The plaintiffs bring error.

      S. Sill, Jr. and B. Burwell, for plaintiffs in error.

      P. Van Burén, for defendant in error.

      Points for plaintiffs in error:

    I. The Supreme Court' erred in assuming that the action in this ease was founded upon the act incorporating the Bossie Galena Company, and not upon a common law liability, and that it was therefore an action upon a statute, within the meaning of 2 R. S. 297, 8, § 31.
    1. Independently of the act of incorporation, the members of the company would be liable for its debts as partners, at common law. (Collyer on Partn. 614, 626, 635, 651, 653.)
    2. The legislature, in incorporating the company, expresslrefused to exempt them from their common law liability as partners. The charter virtually holds this language to the members: “You may have a corporate capacity for the convenience of transacting business, and the facility of transferring your respective interests in the joint concern ; 'but you shall remain liable to the creditors of the association in the same manner, substantially, as though you had not been incorporated.” .(Sess. Laws of 1837, 445, 6, §§9, 10; 2 Denio, 119, 123, 4, Harger vs. McCullough; 2 Hill, 268, 269, 270, Moss vs. Oakley ; 3 Hill, 188, 190, Bailey vs. Bancker; 26 Wend. 43, 51, 2, Van Hook vs. Whitlock; 20 Wend. 614, 617, Ex parte Van Riper.)

    4. Even conceding that the action is founded partly on the act of incorporation, and partly on the common law, which we deny, still the case would not be within 2 R. S. 298, § 31. (7 Paige 380, 381, Van Hook vs. Whitlock, per Walworth, Chancellor.)

      II. The Supreme Court have virtually decided in this casa that all statutory remedies by action, except those which are given to the people, or a common informer, are embraced by 2 R. S. 298, § 31. This construction will extend the provision to various actions which were plainly not contemplated by the Legislature, and is therefore erroneous.
    III. The provision in 2 R. S. 298, § 31, was intended to embrace only actions for penalties and forfeitures, properly so called, and other actions of the like nature.

    1. The subject matter which .the Legislature had in view, when they adopted the provisions in Art. 3d, of which the above section is a part, was actions for penalties and forfeitures. This they have expressly declared. (See 2 R. S. 291, 2, § 1, Tit. 1; 2 R. S. 295, caption of Art. 2; 2 R. S. 297, caption of Art. 3.)
    2. The section was introduced mainly to provide for the case of a penalty or forfeiture given to the party aggrieved, which was not embraced by the preceding sections of Art. 3d. (See 2 Greenl. Laws of N. Y. 96; 4 Mod. 129; Cro. Eliz. 645; Noy 71; 3 Leon. 237.)
    3. The word “ cause” was substituted in this section for the word “penalty” used in the preceding ones, from a doubt whether a statute giving a sum of money or damages, both by way of remedy to the plaintiff, and punishment to the defendant, could rightly be called a “ statute made, &c., for a penalty;” learned Judges having differed upon the question. (Espinasse on Penal Actions, p. 6 to 8; Hardwick’s Rep. 390, 393, Merrick vs. The Hundred, &c.; 1 Wilson’s Rep. 125, 6, Williams vs. Middleton; 2 Term Rep. 154; 8 Johns. Rep. 345; 14 Johns. Rep. 255; 3 Toml. Law Dict. 520.)
    4. By using the word “cause” in the unlimited sense ascribed to it by the Supreme Court, the word “ forfeiture” is rendered entirely inoperative. But the Legislature, having expressly declared that the subject matter intended to be provided for was actions for penalties and forfeitures, the word “ cause,” and of doubtful import, is to be limited and applied accordingly. (1 Blackst. Comm. 60, 61; 1 Plowden’s Rep. 203 to 206.)
    5. Again, the word “cause,” being preceded by the word “forfeiture,” is to be understood as meaning something of the like nature, according to the maxim noscitur a sociis. Construed in this way the section will read: “ All actions upon any statute made, or to be made, for any forfeiture or like cause,” &c. (See Broom’s Legal Max. 294, 5; 5 Barn, & Ald. 164, Phillips vs. Barber; 4 Term Rep. 224, 227, Evans vs. Stevens ; 2 Moore 491, 495, Clark vs. Gaskarth; 8 Taunt. 431, S. C.)

    . IV. The action is embraced by that part of the statute limiting the right of suing to six years. (2 R. S. 295, § 18.)
    1. It is within the express terms of the 4th subdivision of the above section; being an action of “ assumpsit, or on the case, founded on a contract or liability, express or implied.”

    2. Hone of the reasons which induced the Legislature to prescribe a short period of. limitation for punitory or penal actions, apply to this case. It is an action upon a demand for goods sold, and is entitled to as much favor as other actions of the same general character. (20 Wend. 614, ex parte Van Riper.)

    3. If the Supreme Court are right, however, the action would be barred absolutely after three years, and the plaintiff would be entitled to none of the exceptions on account of disability, absence from the State, &c., which apply to other actions of assumpsit, and even of tort. (See 2 R. S. 296, 7, §§ 24, 26, 27; 2 R. S. 298, § 32.)
    V. If it be doubtful, upon a view of the whole scheme of legislation on this subject, whether the three years limitation, or the six, is applicable to actions like the present, that construction should be adopted which will preserve the remedy the longest.
    1. By the common law, a. suitor had an unlimited time within which to sue, the maxim being that “ a right never dies."’ (Wilkinson on Lim. 1, 2.)

      2. The “ statute of limitations; being in restraint of right, is to be construed strictlyi. e. so as to continue and preserve the right, rather than to abridge or destroy it. (14 Johns. Rep. 480, per Van Ness J.; 2 Bos. & Pull. 546, 7, per Heath J.)

    3. “ The better construction of a statute is always to expound it as near the rules of the common law as may be.” (11 Mod. Rep. 150, Arthur vs. Bokenham; 1 Saund. Rep. 240; 10 Johns. Rep. 579, 580.)
    4. “ Statutes are not presumed to alter the common law further or otherwise than is clearly expressed.” (6 Dane’s Abr. 589, pl. 20; 11 Mod. Rep. 150, Arthur vs. Bokenham; 10 Johns. Rep. 579, 580; Bac. Abr. tit. “ Statute” (1) 4; Ram. on Leg. Judgm. 160.)

      Points for defendant in error:

    I. All actions upon any statute, for any cause, the benefit and suit whereof is limited to the party aggrieved, should be commenced within three years after the cause of action accrued. (2 Rev. Stat. p. 225, § 31, new edition; 1 Rev. Laws, p. 186, § 6.)
    II. This action is brought upon the statute incorporating the Rossie Galena Company. (Session Laws, 1837, p. 445 ; Bullard vs. Bell, 1 Mason’s Rep. p. 243; Heacock vs. Sherman, 14 Wend. 58.)
    III. This action was not commenced within three years after the cause of action accrued. Therefore the plea.of the statute of limitations of three years is good, and affords a bar to the recovery of the plaintiffs in this action. (Van Hook vs. Whitlock, 2 Edw. 304 same case, 7 Paige, 373; same again, 26 Wendell, 43.)
   Jones, J.

delivered the opinion of the Court:

Corning and Horner, the plaintiffs in error, made a sale of merchandize to the Rossie Galena Company, wherein the defendant in error was a stockholder, and after obtaining a judgment against the Company for the amount thereof, and after an execution, issued on the said judgment, had been returned unsatisfied, brought this action against the defendant in error as being a stockholder and member of the Company, and personally liable for the debt. The defendant, pleaded in bar of the action that the cause of action did not accrue to the plaintiffs within three years next before the commencement of the suit. To this plea the-plaintiffs demurred, and the Supreme Court gave judgment against them. That judgment is now before this Court for review. The question is, whether the" statute limitation of three years for the commencement of actions on statutes for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of the State applies to this case, and bars the plaintiffs’ action. The Eeyised Statutes contain a general provision limiting the time to six years within which actions of account, assumpsit, or on the case, founded on any contract or liability, express or implied, are to be commenced, as expressed in the 4th subdivision of section 18 of the 2d article of title 2d of the chapter entitled, “ of actions and the times of commencing them,” which the plaintiffs suppose to apply to this action. And those statutes also contain a special provision declaring that all actions upon any statute, made or to be made, for any forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, or to such party and the people of this State, shall be commenced within three years after the offence committed, or the cause of action accrued, and not after, as expressed in section 31, in the 3d article of said title and chapter; and within this provision the defendant claims the present suit to come. To which of these classes does this action properly belong ?

It was the manifest intention of the Legislature in framing the provisions, of the statute for limiting the times for the commencement of actions, to seperate and distinguish actions on contract, and for causes founded on good and valuable considerations, from actions on statutes for forfeitures and causes in affinity with them, and to apply to the latter class shorter neriods of limitation than to the former. In accordance with this principle, and with intent to secure to all actions for causes on meritorious consideration, the benefit and privilege of the longest time of limitation, the 4th subdivision of the 18th section is conceived in the most comprehensive terms, extending to and embracing all actions on the case, founded on any contract or liability, express or implied;. aqd to it this action, being on the case, for the price or value of merchandize sold and delivered by the plaintiffs to the Rossie Galena Company, of which the defendant was a stockholder, on the ground of his personal liability for the debt, must belong, unless the cause of action against the defendant was in fact created or accrued to the plaintiffs by the statutes for the incorporation of the Company, or the action itself is necessarily upon the statute. Was the debt contracted to these plaintiffs by the purchase of the merchandize sold to the Company, the debt of the corporate body exclusively ? or is this suit against the defendant personally, for it, strictly and technically an action on the statute of incorporation ?

The ground of the action is the individual liability of the defendant to pay for merchandize sold and delivered to a company of which he was at the time a member. If that Company had been a voluntary unincorporated association of individuals, using the name of the Rossie Galena Company in its operations, his liability for its engagements would have been clear, and his defence in point of form to an action against him solely for a debt of the Company, would have been the nonjoinder of his associates with him in the action. How has the act of incorporation in this case shielded the stockholders from that" responsibility for the debts of the company, which, acting without it, they would have incurred? It is not a general unqualified incorporation of the company imparting .to the stockholders and members composing it as a legal consequence an exemption from personal liability for the debts and engagements of the body corporate. It is a legislative grant of a special qualified corporate capacity, with adequate plenary powers for the purposes of its institution, but with the personal liability of the stockholders for the debts the company shall contract, and the liabilities they shall incur. The statute, at the same time that it incorporates the company, and thereby enables them to contract debts in their corporate names, provides that the stockholders who compose the company, and for who'se use and benefit purchases .are made and debts contracted, in their corporate na,me shall, notwithstanding their incorporation, be jointly and severally personally liable for the payment of all debts or demands contracted by the company, and that any person having any demand against the corporation, may sue any stockholder, director or directors, in any Court having cognizance. thereof, and recover the same with costs. The Legislature thus concurrently with the creation of the body corporate, and in the same statute which creates it,, enacting and providing that it shall not possess the capacity nor have the legal effect and operation which an unqualified act of incorporation would possess and have of imparting to its stock-' holders irresponsibility for its debts, or of contracting debts in its corporate name on the responsibility of the corporation, solely and so as to exempt its stockholders from personal liability therefor. If then the incorporation of this company does not shield or exempt its corporators and members from individual responsibility for the debts and engagements of the company, but leaves them, under- the common law liability, as partners or joint debtors for those debts and engagements, must it not follow'that the defendant, McCullough, he being a stockholder in the Rossie Galena Company at the time the debt of that company to these plaintiffs was contracted, became, on the consummation of the contract by the delivery of the goods to. the company, liable for the payment of the debt contracted thereby ? The act of incorporation affording him no protection therefrom, and not only leaving him personally liable therefor, but in express terms recognizing and affirming such liability, what defence could he make to an action charging him as a partner or joint debtor on the contract of the company"? The personal liability of the stockholders to creditors under this charter, for the debts of the company, is an- element of the incorporation which wholly excludes all claim of any stockholder to treat those debts as debts of the corporate body solely, which he did not contract and is not bound to pay. The stockholders all stand under this act of incorporation on the same ground, and under the same responsibility as respects creditors, as they would if unincorporated have stood. This liability the stockholders voluntarily assumed, and it could not have been misunderstood by them. It is fully and dearly expressed in the act of incorporation. The original stockholders, by their acceptance of the charter, and subsequent purchasers in becoming members, assented and agreed to the terms and conditions of the act of incorporation. The defendant in this suit, in common with the other stockholders, by his acceptance of the charter, agreed to its terms, and especially to that feature of it so strongly marked, of the individual liability of the stockholders equally with that of the corporate body for the debts of the company. It is a liability which every stockholder must he -understood to assume and take upon himself and to ho under to those who deal with the company. Dealers contract with the corporation on the faith of that security for the performance of the contract. The credit they give is given, and they trust, as well to the personal'liability of the stockholders, as to the responsibility of the corporation, for the fulfilment of the engagement; and each stockholder incurs that liability to the creditor the moment the contract of such creditor with the company is consummated. When, therefore, the plaintiffs sold and delivered their merchandize to the company whereof the defendant was a stockholder, they acquired a right, of which nothing could divest them, to the liability of the defendant for the payment of the price of the goods; and the defendant incurred the obligation to answer and pay the debt thus contracted. The creditors were, it is true, required by the 10th section of the act of incorporation first to obtain judgment against the corporation (unless previously dissolved) for their demand, and to cause execution to he issued thereon, which was to be returned unsatisfied, in whole or in part, before they commenced their suit therefor against the individual stockholder on his personal liability. But this provision does not affect the right of the creditor to the personal liability of the stockholder for his debt, nor the obligation of the stockholder to pay the same; nor does it prevent the liability of the stockholder to the creditor from attaching and becoming perfect on the consummation of the contract of the creditor with the corporation. It simply, defers the remedy by action upon that responsibility until the remedy at law against the corporation shall be exhausted, or the corporation shall have been dissolved. The intention of it is to secure the stockholder from an immediate recourse to him upon his personal liability when the corporation may be solvent and able to pay the debt, and the creditor may have an effectual remedy against the corporate body for his demand. The substance of the 9th section is, that the stockholders shall be jointly and severally personally liable for the payment of all debts contracted by the company, and that any person having a demand against the corporation may sue any stockholder therefor, and recover the same with costs; and the 10th section provides that before suit'shall be commenced upon any such demand, judgment shall have been obtained against the corporation thereon, and execution issued and returned unsatisfied, in whole or in part, or the corporation shall have been dissolved. Upon these two sections taken together, the personal liability of the stockholder for the payment of the debt is immediate and absolute the moment the debt is- contracted or incurred by the company; but the recourse of the creditor by suit to the stockholder upon that personal liability, is deferred until he shall have first exhausted his remedy at law against the corporation, or the corporation shall be dissolved.

The intention of the Legislature obviously was to incorporate the company with a qualified corporate capacity, vesting general corporate powers in the company, but leaving the stockholders personally liable for the debts of the corporation; and to effectuate that intention it was necessary to qualify the grant of a corporate capacity to contract debts by a provision that the stockholders should be personally liable- to creditors therefor. It was fully understood, that under a general unqualified incorporation of the company, the debts contracted by it in its corporate capacity would be the debts of the corporation and not the debts of the individuals composing the company, and that the stockholders would not be personally answerable or liable therefor. ' To guard against this irresponsibility of the stockholders for the debts of the company consequent upon an unqualified act of incorporation, the provision was inserted in the charter for preserving the personal liability of the stock, holders; but as that provision, if permitted to have its full legal effect and operation, would expose them to the Buitr- of creditors in the first instance, and without any previous replication to the company or demand of payment therefrom, and would moreover subject the creditors, themselves, when driven to their recourse tc suits against the stockholders, to groat and oftentimes nearly insuperable difficulties and embarrassment in the pursuit of their remedy against a numerous vaA. widely dispersed body of stockholders, it was deemed cvpodient to require of the creditor first to exhaust his remedy at law for the recovery of his debt against the corporation before recourse should be had by him to the stockholders, and to enable and authorize him, when such recourse should become necessary, to take his remedy 5,nd prosecute his suit against all or any of the stockholders of the company. There elementary provisions are incorporated in the act by separate sections from the enacting clause, whereby the company is in form invested with its corporate capacity; and upon this separation of these several enactments it has been contended that the statute is to be understood and construed as intending first to incorporate the company without qualification, thereby vesting in the body corporate full powers to contract debts in its corporate name without the personal responsibility of the stockholders therefor, but exempting them therefrom, and then, by the subsequent section subjecting them to a new and qualified liability for the same; and hence concluding that the remedy on such new liability must be by an action on the statute. To this exposition of the statute I cannot accede. It is, I believe, an established rule of construction, that the different parts of the same act relating to the same subject, must, unless a different intent is so palpable as to admit of no question, be taken together and construed as if they were all in the same section. Upon that principle, these several sections of this act, the first incorporating the company, and the ninth and tenth qualifying the grant of corporate powers and capacity, must receive the same construction as would be given to them if they had all been incorporated in the same section of the statute. We cannot impute to the Legislature the design or intention to exempt the stockholders by the incorporation of them, from personal liability for the debts of the corapany, and then, by the same statute, render them personally liable for the same debts. We apprehend that the clear intent was to invest the company with a qualified corporate capacity, and not to confer upon the stockholders, either directly or indirectly, as the consequence of such incorporation or otherwise, any exemption or immunity from personal liability for the debts of the company to be contracted in its corporate name and capacity.

If this view of the act of incorporation be correct, and the personal liability of the stockholder for the debts of the company results from his connection with the company as a member of it, participating in its benefits under an incorporation so qualified as not to exempt him from such liability for its debts or to protect him therefrom, how can the remedy of the creditor upon that liability be by an action on the statute ? or why must it not necessarily be by an action bn the case at common law upon the liability of the stockholder for the debt of the company or copartnership, of which he is a member, .and against which the incorporation of the company affords him no protection? The plaintiffs’ claim is not for a forfeiture or penalty or any sum of money or thing taken from the defendant and given to them by a statute, nor upon any cause of action to which their whole and sole right or title rests upon a statutory provision entitling them thereto, but for a debt contracted by the sale by them of merchandize, whereof they were,the owners, to a company of which the defendant was a member, and wherein he had an interest as one of its stockholders.

But the sale, it is said, was to the company and not to the defendant, and the plaintiffs had full notice and well knew that they made the sale to a corporate body, and contracted the debt on its credit and responsibility. The sale, it is true, was to the company, but not on its credit exclusively, but on the faith and credit also of the personal liability of the stockholders for the debts of the company. The liability of the defendant upon which the action is grounded, is for the payment of a debt of the company incurred by the purchase of merchandize of. the plaintiffs, for the use and benefit of the company, and wherein the defendant, as one of the members of the company, was interested, and for which he thereby and under the provisions of the charter of the 'company, became and was, concurrently with the company, from the inception of the debt, personally liable. It is virtually and in effect a liability upon a contract, and the mutual agreement of the parties ; not indeed in form an express personal contract, but an agreement of equally binding obligation, consequent upon and resulting from the acts and admissions or implied assent of the parties. The company made the purchase of the goods of the plaintiffs on the terms and security authorized by the statute. The personal liability of the stockholders for the payment of the debts of the company, was one of the terms of purchase authorized by the statute. It was consequently one of the terms of the sale by the plaintiffs of their goods to the company, .and constituted part of their security for the payment of the debt thereby incurred. To those terms and that security the defendant, by becoming and being at the time a stockholder of the company, gave his assent and made himself a party under and according to the provisions of the charter, and the plaintiffs, by the acceptance of the terms of sale and the delivery of the goods to the company, entitled themselves to the benefit of the personal liability of the defendant as a stockholder of the company for the payment of the debt contracted by the purchase.

But it is-objected that the personal liability of the stockholders under the statute, differs from the common law liability of copartners; the common law rule subjecting copartners to a joint responsibility, and the statute making the stockholders of the company jointly and severally liable for the debts. But that change of the common law rule of responsibility by the statute, as applied to this class of partners, cannot vary or affect the principle on which the liability rests. It is competent to the Legislature in all cases to amend, modify, and alter the rules of the common law, whenever amendments or alterations are deemed proper and expedient. Such action of the Legislature is of frequent occurrence, but such statutory amendments or modifications do not necessarily or usually abolish the rules they affect, or change the course of the common law in relation thereto; and as a general rule the pursuit of the remedy, in such cases, where the amendatory statute is silent, will be by the appropriate common law action, and not by an action on the statute. Should the Legislature provide by statute that copartners shall be liable, jointly and severally, to creditors on their contracts, and that any one or more of them might be sued upon their joint contract without joining the others in the suit, must the action for a debt accruing after the alteration of the rule of responsibility, if brought against one only of the co-partners, be brought upon the statute authorizing the action against him solely as being necessarily an action on the statute, or might it not be brought in the usual form of a common lawsuit on the contract or for the. debt of the copar trership ? The cause of action in such case against the co-partnership, would exist at- common law, and the remedy against the one partner solely, though authorized and given by statute, would, I apprehend, be by suit at common law, in pursuance of the statute, and not upon the statute in the technical sense and meaning of those terms. And if the remedy against one of several copartners for a partnership debt, under a general statute providing for and authorizing the same, would be by a common law action, on the same principle the recourse to the individual stockholder as a partner unprotected by the act of incorporation, and subjected to personal liability, might also be by a common law action on the contract of the company. Then how can this action, having for its object the recovery of a debt for goods sold to a company of which the defendant was a member, and personally liable for the payment of its debts, and which action, in no just sense of the term, partakes of the character of eithe' forfeiture or penalty, be held an exception out of the class of actions of assumpsit and on the case to which it so naturally belongs, and to come within the description and class ,.of actions on statute ? T cannot resist the' conclusion, that it is, in truth and in fact, a common law action on the case, for which the statute limitation of six years is provided, and not an action on statute subject to the shorter limitation of three years for its commencement.

But suppose it can be regarded in any sense of the term as an action on statute, is it an action for a forfeiture or cause, the benefit and suit whereof is limited to the party aggrieved, and within the class of actions to which the limitation of three years is to be applied ? Ah action, to come within the 31st section' of the chapter entitled “ of actions and the times of commencing them,” must be an action on a statute for a forfeiture or cause, the benefit and suit whereof is limited wholly or in part to the party aggrieved. The purport of this statutory provision, especially when considered in connection with those which immediately precede it, referring also to actions on statutes, and the language in which these provisions are all expressed, indicate clearly, I think, the intention of the Legislature to have been to apply them to forfeitures and penalties, and causes of action of the like character, partaking of the nature of penal actions. The whole chapter “of actions and the times of commencing them,” and all its divisions and enactments touching actions on statutes, speak that language too plainly, I think, to be misunderstood. The first title of the chapter in the first section of it defines and declares the actions included within the provisions of the chapter to be either: 1. Such as relate to real estate. 2. Those which may be brought for the recovery of any debt or demand, or for the recovery of damages only. 3. Those which may be brought for penalties or forfeitures. 4. Suits in equity. The 18th section of the chapter, being the first division of the second article of the second title, contains seven subdivisions. By the first of them all actions of debt founded upon any contract, obligation or liability, not under seal, nor upon a judgment or decree of a Court of Record, as therein expressed, and by the fourth subdivision all actions of account assumpsit or on the case, founded on any contract or liability, express or implied, are to be commenced within six years next after the cause of such action accrued, and not after. And I here notice the very comprehensive terms of the fourth subdivision of this section as showing it to have been purposely framed and intended to reach and comprehend all actions on the case, of every description, founded on any liability whatever ; and that it must be held to extend t>o and embrace the action now before us, unless the same be shewn or plainly appears to be excepted and otherwise provided for as more appropriately belonging to some other class of actions. The third article of the second title of the chapter, applies, to actions for penalties and forfeitures, and is entitled “of the time of commencing actions for penalties and forfeitures.” It consists of three sections, being sections 29, 30 and 31 of the chapter. By the first (being-section 29) all actions upon any statute for any forfeiture or penalty to the people of the State, are to be commenced within two years after the offence shall have been committed; by the second (being the 30th section) all actions upon any statute for any forfeiture or penalty given in "whole or in part to any person who will prosedute for the same, are to be commenced within one year after the offence shall have been committed, and if not commenced within that time by any private citizen, then to be commenced within two years after that year ended in behalf of the people of the State; and by the third (being the 31st section) all actions upon any statute for any forfeiture or cause, the benefit and suit whereof is limited to the party' aggrieved, or to such party and the people of the State, shall be commenced within three years after the offence committed or the cause of action accrued, and not after." Thus it is seen that the statute arranges all actions at law not relating to real estate in two classes. 1. Actions for debts, demands or damages only. 2. Actions for forfeitures and penalties. And that the 3d article of the 2d title of the chapter, -which relates to the said second class of actions,, namely, penalties and forfeitures, is entitled and professes to be of the time of commencing actions for penalties and forfeiture ; thus shewing the leading and general intent and purpose of the Legislature to have been to confine the actions coming within this second class, to penalties and forfeitures, and to apply the short limitation of three years to such actions only.

But it is contended that the addition of the word “ cause” to that of “ forfeiture,” ii^the 31st section, extends the provisions- of that section to all actions for any cause, and upon any statute, whether for a forfeiture or other cause, founded upon statute liability, and the benefit whereof is limited to the plaintiff or party aggrieved. To this broad meaning of the term is opposed the narrower acceptation of it as importing “causes” of the same nature as those indicated by the term “forfeiture” with which it is so closely associated'™ the section—and-this more restricted sense of the term strikes me as bemg the most rational exposition'of it. That the use and application of that indefinite term in this connection, without any superadded words of restriction or explanation, has involved the section in some obscurity, the conflicting-opinions of Jurists and learned Judges-upon it sufficiently testify. But indefinite as it is in itself, it may, when used in connection with other terms, acquire distinctive features indicating the sense intended to be attached to it; and as used and applied in this section it must, I think, from its juxta position to the term forfeiture, from the omission in the section of the term penalty from the relation of that section to the article and chapter to which it belongs, and from the general intention of the Legislature, as collected from the language used in describing and designating the classes, and the character of the actions in their contemplation at the time, as those to which that article was to refer, be understood and held to apply to penalties and to such causes only as savour of forfeiture or penalty, and which, though not technically and in name penalties, are yet in substance and effect penal in their nature, and calculated and operating to affect the party exposed to them in the same or a similar manner with forfeitures and penalties.

That exposition of the meaning of the term receives countenance and support from the history of the section in which it occurs. That section was introduced into the statute of limitations of this State, on the first revision of the statute law of the State, by Jones & Varick, in 1788. On that revision the English statutes, then understood to be in force in this State, or properly.applicable to us, were adapted to our system and enacted by the Legislature into the stamtes of this State; and the provisions for the limitation of actions on statutes for forfeitures limited to the people, and to common informers contained in the act for the limitation of criminal prosecutions and of actions and suits at law, then passed by the Legislature of this State, were taken from the English statute, entitled an act concerning informers of the 31st Elizabeth, ch. v, sec. 5. But that statute contained no clause or provision for the limitation of the time for the commencing of actions on statute for forfeitures or penalties, the benefit whereof was limited or given to the party aggrieved. Nor was there any statute then existing and in force in this State or in England, containing any provision for the limitation of the time of the commencement of that class of actions on statute. It was to supply this omission of the English statutes, that the clause of the 13th section of the act of 1788, providing that all actions, suits, bills or informations for any forfeiture or cause on any statute, the benefit or suit whereof, was given to the party aggrieved should be commenced within three years after the offence committed or cause of action accrued, was passed by the revisers, and inserted in, the act which was then passed by the Legislature. It was a new provision, and was the same in substance and in nearly the same words when first created, as it now exists in the section to which we have so often had occasion to advert. The provision as first adopted, has gone through the several subsequent revisions of the statute law of the State unchanged, and without any question having ever arisen upon its construction, but we believe with the generally received opinion, that the intention of it was to provide and apply a rule or time of limitation to actions on statute by the party aggrieved, for the same or similar causes with those for which-actions were given to the people or to common informers, but that it was not the intention of thcfLegislature or the purpose of the new provision to limit the time for the commencement of actions on statutes by the party aggrieved to a shorter period than six years in other cases than those of forfeiture and penalty, and causes of the same nature therewith, and analogous thereto. When the action of the party aggrieved is for a forfeiture or penalty, it is of course upon the statute, and when for a specific sum or definite measure of indemnity or recompense, which is the form the statute sometimes gives to the remedy it provides, the action may still be upon the statute ; but if such remedy be given for a wrong or injury which is actionable at common law, and the party has his election between the common law action and the statute remedy, and chooses to betake himself to his statute remedy, instead of bringing his action at common law, for the recovery of damages generally upon his proof before a jury at the trial, the short limitation of three years may be applied'to him, though if he had been content with his remedy by the common law action, it would not have .been applicable. But there is a class of actions and causes of action which involves statutory provisions in a greater or less degree, but which though the statute is a necessary link in the chain of title to the remedy, and they may to- some intents be said to be under the statute, are not in the legal acceptation of the terms, actions upon the statute within the meaning of the limitation acts. I understand the rule to be, that to bring a case within any class of actions on statute to which the short limitation time of commencing them is applicable, the cause of action must be created or given by the statute, or the action must be upon the statute solely; that if the cause of action or remedy be partly at 'common law and partly by statutory provisions, the short limitations prescribed for the times of commencing action on statutes do not apply unless the cause of action be penal in its nature, or there be no other limitation provided by law adapted to the case. To this class of actions partly ¿t common law and partly on statutory provisions, the present action, if in any sense or degree, upon statutes would belong. The liability of this defendant to these plaintiffs is neither for a penalty inflicted upon him for any offence committed by hint nor for any forfeiture incurred by him, nor does it possess any element or feature of a penal character assimilating it to either forfeiture or penalty. It cannot therefore be brought within the provisions of the 31st section, and the short limitation of three years be applied to it, unless the use of the statute showing the qualified corporation it creates as evidence to connect the defendant as a stockholder, with the plaintiff’s sale and delivery of the goods to the company can be held to characterize it as an action upon the statute.

But we are referred to the difference in the phraseology of this 31st section, from that of the two sections immediately preceding it, as conflicting with our exposition of the meaning of them. We are reminded that in each of the two that precede, the word penalty is added to that of forfeiture, but that in this, the word penalty is omitted, and the term “ cause” left to stand in its place, whence we are asked to infer that the Legislature on the last revision intended, in accordance with the spirit of the act of 1788, as they understood it, to confine the limitation in the two sections that precede the 31st strictly to forfeitures and penalties, but to extend that of the 31st section beyond both forfeitures . and penalties to other causes, and necessarily in the absence of all restriction to action on statute for any cause whatsoever. And as a further ground for the conclusion that such was the understanding and intention of the Legislature in the introduction and in the continuance of the new provision, it is suggested and urged, that as the Legislature on both occasions, as well in framing a general statute for the limitation of times of commencing action, as on the renewal and continuance of the same, have made use of terms in reference to this particular class of actions sufficiently broad to embrace the whole of the class, they are to be presumed to have intended to apply the rule prescribed to the whole of that class rather then to be presumed to have meant to confine it to a part only of the class. This reasoning has force when applied to a case where "no reason exists for fixing a different limitation of time to some actions of that 'class from that which is applied to others. But is this such a case ? .The 3lst section is one of three sections of an article entitled “ of the time of commencing actions for penalties and forfeitures,” and the general intention of the Legislature, as indicated by this designation of the purpose of the article, might be taken to have been to apply the rules of limitations its sections prescribe to actions for forfeitures and penalties only, and the last sections of the article relating to actions by the party aggrieved, to conform it to that general intent would in strictness be confined to the same causes of action as the two sections that precede it; but as the party aggrieved may have causes of action upon the statute against aggressors coming within the spirit, though not within the letter of the article, the word “ cause” used instead of “penalty,” may well be understood as being substituted for that term with intent to extend the provision to cases penal in them nature, though not in strictness and technically either -penalties or forfeitures. But between these actions on statutes for the benefit of the party aggrieved, and the class to which I have before adverted as being partly on statutory provisions and partly at common law, for causes not in the nature of a forfeiture, but for the recovery of a debt or damages, and actions also for rights or remedies of a civil nature which statutes-may originate or authorize, but which enable and entitle the prosecutor to recover the common law measure of damages, and not a fixed statutory recompense for the wrong or injury of the aggressor, there is a wide and marked distinction, and for this distinction there is abundant reason. It is the policy of the statute to limit the commencement of actions for forfeitures and penalties to shorter periods of time than actions on contracts and for vested rights and legislative enactments, subjecting the aggressor to a specific measure of damages or a specific compensation, for the injury he causes may be in their nature penal, and come properly within the provisions of this 31st section,, but rights and remedies of a purely civil nature which may be vested'by statute in individuals, or which parties may acquire under statutory provisions partake in no degree of forfeiture or penalty, but are equally meritorious, and entitled to the same favor as rights upon contracts or other acquisitions, and actions upon them are equally within the reason and policy of the six years’ rule of limitation, as actions upon contract, and cannot justly be confined to the narrower rule of three years limitation prescribed for penal actions. I cannot reconcile with the views I take of the general policy and principles of the article entitled “of the time of commencing actions for penalties and forfeitures,” and the special provisions of the different sections of that article, the supposition or belief that the framers of it could intend to apply the short bar of three years limitation to all actions upon statute, or under statutory provisions by parties suing for their own benefit, without discrimination or exception. I must believe that the intention was to confine the three year limitation to actions by the party aggrieved, for penalties and forfeitures and analogous causes of action of a penal nature, and not to extend that bar to civil actions for rights and on remedies resulting from, or accruing under statutory provisions, not imposing upon aggressors or offenders any specific amount or rate of compensation or recompense, but leaving them to this common law liability and the common law measure of damages consequent thereon. Under these views of our system of limitation of suits and actions, the use and importance of the term “cause” superadded by the first revisers to the term “forfeiture” in the new section introduced by them, is manifest. The provision might have been imperfect, or open to misconstruction without it. The term “forfeiture” might suffice to describe the actions to which the two preceding sections were to apply, but might not be held, to embrace all the causes of action to which the new section was to extend, and the addition of the term penalty might not sufficiently enlarge its range, but the term “cause” was sure to be effectual, and rightly understood and applied* would extend the limitation prescribed by the section to penalties and all analogous causes partaking of the nature of forfeitures, but would carry it no further.

In this connection it may be noted, that the indefinite term “ cause” being immediately preceded in the sentence by the term forfeiture, may, if the intention of the Legislature, and the adaptation of the particular provision to the general character and purpose of the- article .and chapter of which it is parcel should require it, be understood and construed according to the maxim, noscitur a soeiis, as meaning something of the same or like nature with forfeiture and analogous thereto. The section so construed provides, that “ all actions upon any statute for any forfeiture or cause of the same or like nature, the benefit and suit whereof shall be limited to the party aggrieved, &c., shall be commenced within three years next after the offence committed or the cause of action accrued.” That construction reconciles the section to the heading or title of the article to which it belongs, and conforms it to the classification that heading imports of the actions, to which the times of limitation the article prescribes are to apply as being actions for penalties and forfeitures, and harmonizes moreover with the ordinary acceptation of the terms, “ party aggrieved,” so emphatically applicable to those who suffer from the aggressions of others, but so inappropriate and rarely applies to plaintiffs and parties who prosecute on contracts and liabilities for debts and damages.

If the causes of action to which this section is intended to apply cannot be by the settled rules of construction confined to causes of a penal nature, what bounds can be set to the section? If it is held to.apply to all actions on any statute, remedial or penal for any cause involving any statutory provision, and being for the benefit of the plaintiff or party aggrieved, will it not be made to comprehend large classes of actions which have never yet been understood, or supposed to come within it ? May not liabilities clearly within the reason and the very letter of the 4th subdivision of the 18th section, and always regarded and treated as being unquestionably entitled to the benefit of the full term of six years for the commencing of actions upon them, be 'brought within the range of the narrower rule of this thirty-first section and restricted to the shorter term of its three years limitation? The instances adduced by the counsel for the plaintiffs in error, to exhibit and illustrate the practical effect and operation of such an exposition of this section of the statute, are so appropriate and so striking that I deem it superfluous to extend them or to dwell upon them. Among them I notice the remedy given by statute to the endorsee against the maker and endorser of a promissory note, which was an innovation upon the common law System, and purely by statutory authority. It not only gave a new remedy on the note, but changed essentially its character and its properties, and altered materially the rights and liabilities of the parties to it. When first introduced, a reference to the statute authorizing it was deemed necessary in actions under the statute upon the note; but the suit or action itself was from the first and always has been, and notwithstanding the introduction into our statutes of limitation of the new and additional provision contained in this thirty-first section, has continued to be, and now is with us as in England the common law action of assumpsit or trespass on the case, upon the contract which the note, in the statutory sense and effect of it imports, and the statute limitation of six years held to apply to it. So too the other cases cited, of actions by and in the name of the assignee of a chose in action where the assignor is dead, and there is no executor or administrator; actions by and in the name of the purchaser of a chose in action at a receiver’s sale; actions by and in the name of an assignee of a bond to the Sheriff; by and in the name of the assignee of a lessor against the lessee upon covenants in the lease; against the maker and endorser of a promissory note jointly; by the creditors of a deceased person against the heirs, devisees, legatees, and next qf kin; by purchasers of real estate sold on execution against the owner of the judgment on the failure of title; by mechanics against the owner of a building to enforce a statutory lien for a debt due from the contractor; and actions against the owner of a carriage for the malicious act of the driver, are prominent instances of remedies, and some of them of rights created or given, improved or varied, by statute, but for and upon which common law actions are in familiar use, and the six years term of limitation constantly applied. For aught that I can see, the action in the case now before us is as far removed as any of these from the legitimate range of the short limitation- ; for it is substantially and in effect an action for the price or value of merchandize sold and delivered by the plaintiffs to a company of which the defendant was a member, and for the debts of wdiich he is by law adapted by statutory provisions to the case, personally and individually liable. And if this action must be held to come within the 31st section, and not within the 4th subdivision of the 18th section, and the short bar of the three years limitation must be applied to it, I am y.et to learn why it is that the same principle, if fairly and fully carried out, would not embrace those cases also, and all others of a similar character. The results of' such an expansive application of the terms of this section, and the wide range of the short statute bar consequent upon it, must, I think, be decisive against that exposition of it, if the language of the statute admits of any other construction.'

But we are told that the short bar of three years has been formerly decided to apply to a case similar in its leading features to this; and we are referred to the case of Van Hook vs. Whitlock as establishing the rule. In that case the creditors of the Commercial Insurance Company of Hew York filed a bill in the Court of Chancery against stockholders of the company, to charge them with debts of the company, on the ground of a personal liability under a special clause in the act of incorporation. The- defendants took two grounds of defence to this suit, the statute of limitations, 'and a discharge from the liability under an act of the Legislature, authorizing the discharge of insolvent insurance companies §,nd their stockholders from the debts of the company upon making an assignment of the corporate estate and effects for the benefit of the creditors, they, the defendants, averring that such assignment had been made and that the complainants had accepted and received dividends under it. The Vice Chancellor of the First Circuit, before whom the question first came, sustained the defence of the statute of limitation. He held that the clause establishing the short-bar of three years limitation was not confined to penal action, or such as might be brought for- a forfeiture, but applied to actions for any cause and upon any statute whatever, for a forfeiture or other cause founded upon statute liability and given or limited to the party aggrieved. That the action before him fell directly within the letter and spirit of that, clause, and it not having been brought within three years next after the cause of action accrued, he, on those grounds, without passing upon the other questions in the cause, dismissed the complainant’s bill. The Chancellor on an appeal to him inclined to the same opinion and confirmed the Vice Chancellor’s decision. From the Chancellor’s decree, the plaintiffs appealed to the Court for the Correction of Errors, and the appeal came on to be heard by that Court in 1841, when the decree of the Chancellor was affirmed, not on the ground taken by the Vice Chancellor and approved by the Chancellor, but upon the other branch of the defence. The affirmance was upon the ground that the creditors who were prosecuting the suit, had affirmed the validity of the assignment by receiving dividends under it. That although the statute under which the assignment was made was unconstitutional and void, as to creditors whose demands existed previous to the passage of the act, still, that the creditors having come in and accepted dividends under the assignment, had assented thereto and affirmed it, and that they could not afterwards avail themselves of the personal responsibility of the stockholders under the charter -for the payment of the debts of the company. Upon the point which is alledged to have involved the question now before us, on the application of the statute of limitation to the cage, no decision was made, and no opinion was expressed by the court. But Chief Justice Nelson, then of the Supreme Court of this State, now one of the Judges of the Supreme Court of the United States, who delivered the opinion of the Court for the Correction of Errors on that occasion, adverting to the.question of the statute of limitations, observed that he did not intend' to discuss that question, not deeming it material to the view he had taken of the case, but that he felt bound to present it for the purpose of entering his dissent to the construction attempted to he given to the clause. “If it really possesses the. sweeping effect claimed,” observed the learned Judge, “for ought I'see it would present a short bar of three years to any action and cause of actiou arising out of, and founded upon any statutory regulation.” He instanced the case of suits against the the President of Associations under the general banking law, as being as completely founded upon statute and the creditor as much aggrieved by the nonpayment of his debt as could be predicated of the case then under consideration, and if the three years’ bar was applicable to the one, hé did not see, he said, how it could be consistently denied to the other. This was the only opinion given, and from its decisive tone, and the clear and very decided opinion it expressed with the manner of announcing it, and the silence of the other members of the Court, it may be fairly taken if not to express the views of the Court on the subject, at least to indicate the absence of all intention of that Court to affirm the opinion of the Courts that preceded it on this point. The decision therefore of the Court of Chancery in that case on the point, though entitled to our respectful consideration, is not binding upon us, and my -own reflections on the subject upon the fullest consideration I have been able to give it, have led me to a 'different conclusion. To this conclusion, and the views taken by this Court of the provision now under review, the learned Chancellor himself would appear, from his opinion on the point, when the question was before him, not to be irreconcilably adverse or very strongly opposed. He concurred, it is true, in the decision of the Vice Chancellor, and suggested considerations certainly not Avithout weight, • in favor of the Vice Chancellor’s exposition of the clause in question; but he at the same time conceded that it is very doubtful whether the Legislature by that provision, intended to include any of that class of actions which are founded partly upon the common law and partly upou statutory provisions, and which are not in the nature of a forfeiture, and which class of actions was already provided for in the previous sections of the act. From these intimations we may, I think, fairly infer that the exposition of the statute which this significant doubt suggests, would not be regarded by him as wholly inadmissible, and that exposition would effectually except and exclude the case now under consideration from the rule to which the Supreme Court adheres; for the personal liability imputed to this defendant is, at most, but partly founded on statutory provisions, is not in the nature of a forfeiture, and is amply provided for in the previous 18th section of the chapter. The construction of this 31st section, and the term “cause” as used therein, suggested by the strongly expressed doubt of the Chancellor, certainly approaches very near, if it does not come fully up to the standard of the exposition herein given of them.

But if our construction of the clause should confine it to still narrower limits, I am satisfied that the sense and meaning Ave attach to -it is not too restrictive. It is an exposition of it, which, in my judgment, gives it all the efficacy and extension required to fill up the space in the system of limitation of the times of commencing actions on statutes left by the statute of Elizabeth, and which: it was the purpose of the new provision of the act of 1788 to supply. It reconciles the 31st section with the 4th subdivision of the 18th section of the chapter of the revised statutes providing for the limitation of the times of commencing actions, gives distinct but appropriate and sufficiently full effect to both, and it vindicates the statute from the reproach of subjecting actions for rights and interests founded on good and valuable considerations acquired under or rendered more effectual by statutory provisions to the same short bar of limitation with actions for penalties. The action of these plaintiffs is for the value of merchandize, sold and delivered by them to a company of which the defendant was a member, and which, though possessing a corporate capacity by the fundamental law of its corporate existence, operated and contracted on the personal liability of its stockholders as well as the corporate responsibility of the company for the payment of its debts. The.contract being with the company, a reference to the statute became necessary in order to show the connection of the stockholder therewith, and with the liability it created, but the liability thus shown not being for any penalty or forfeiture incurred by the stockholders, nor any cause in any wise penal in its nature, but for the debt contracted by the purchase of the goods, comes clearly within the letter and spirit of the 4th subdivision of the 18th section, and the provision of the 31st section does not extend to, or embrace it. The action, therefore, not being upon the statute for a. cause within the 31st section of the chapter, the short bar of three years limitation prescribed by that section is not applicable to it, and the demurrer to the defendant’s special plea was well taken and ought to have been allowed. The judgment of the Supreme Court must be reversed.

Bronson, J.

I concur fully in the opinion which has just been delivered by my brother Jones, and will add only a few words by way of explanation. This case was only brought before the Supreme Court pro forma, as the question had been previously decided in Freeland v. McCullough, 1 Denio, 414. That case was not fully argued; and when it was decided, one of the principles which had been settled in relation to this class of cases was entirely absent from my mind. Had it been mentioned or thought of, I could not have concurred, as I did, in the judgment which was rendered by the Supreme Court. It had been several times held, that the stockholders of this and other like companies, stood substantially upon the same footing as to liability as though they had been partners? or an unincorporated association; that they were answerable to the creditors of the company as original and principal debtors, though the creditors were first to exhaust their remedy against the corporation. ’ (Allen vs. Sewall, 2 Wend. 338 ; Exparte Van Riper, 20 id. 614; Moss vs. Oakley, 2 Hill 265, 269; Bailey vs. Banker, 3 id. 188; Harger vs. McCullough, 2 Denio, 119, 123.) In this view of the matter it is entirely clear, that the three years statute of limitations is not applicable to the case. I am therefore of opinion that the judgment of the Supreme Court should be reversed, and that judgment should be rendered .for the plaintiffs on the demurrer.

Ordered accordingly.

Jewett, Ch. J. dissented.


source: Caselaw Access Project

license: Public Domain

text:
    Wood vs. Weiant and others.
    Tke act of 1833, (laws of 1833, ch. 271, § 9) in relation to the proof and acknowledgement of written instruments, fia§ not changed the provision of the Revised Statutes which requires a certificate of the County Clerk in order to entitle a conveyance of real estate, proved or acknowledged before a Commissioner of Deeds or County Judge not of the degree of counsellor, to be read in evidence or recorded in any other county than that in which the Commissioner or Judge resides.
    Accordingly held, that a conveyance of real estate, acknowledged before a Commissioner in and for the county of Orange, in 1836, could not be read in evidence at the Circuit in Rockland County, without the certificate of the Clerk of Orange county.
    Error to the Supreme Court, where the action was trespass for cutting and carrying away timber from certain lands in Haverstraw, Rockland County, tried at the Rockland Circuit, before Rugóles, Circuit Judge. The question was mainly one of boundary between the premises owned by the plaintiff and Weiant respectively; and on the trial it became material to the plaintiff’s case to introduce in evidence a deed of the premises in question, or of adjoining lands, executed in 1836, and acknowledged before a Commissioner of Deeds for the County of Orange. The Judge rejected the evidence because there was no certificate of the Clerk of Orange County pursuant to 1 R. S. 759, § 18. The plaintiff insisted that the deed might be read under the act of 1833, (Stat. 1833, p. 396, § 9) and excepted to the opinion of the Judge. A verdict having passed for the defendant, the plaintiff, on a bill of exceptions presenting this and other questions, moved for a new trial in the first instance before the Circuit Judge, who, on denying the motion, delivered a written opinion, which so far as it relates to this point is subjoihed.
    Ruggles, Cir. J. “ The counsel for the plaintiff contends, that the act of 1833, ch. 271, sec. 19, (2 B.,8. 325, sec. 74,) has altered the law in relation to the reading of deeds in evidence, and made the Clerk’s certificate unnecessary. But I think the law in relation to receiving deeds in evidence is not altered. This section was not intended to apply to deeds of real estate; they were already provided for, and when that section provides- that the instruments embraced within its scope shall- be received, in evidence in the same manner as if they were deeds, it recognizes the existing law in relation to deeds as still in force, and puts other instruments on the same footing as deeds, not only with respect to the certificate of acknowledgment or proof, but with respect to the authentication of the certificate by the County Clerk.”
    The Supreme Court, on appeal from the Circuit Judge, also refused a new trial, and rendered judgment for the defendant.

      Jff. S. Dodge, for plaintiff in error.

      A. Taber, for defendant in error.
   After deliberation, all the Judges were of opinion that the question in regard to the admissibility of the d,eed in evidence was properly decided at the Circuit.

Jewett, Cit. J., and Gardiner, Wright, and Gray, Js., were for reversing the judgment on another ground.

Bronson, Ruggles, Jones, and Johnson, Js., were for affirmance.

Judgment affirmed.


text:
    Doughty vs. Hope.
    Where property is taken under a statute authority, without the consent of the owner, the power must be strictly followed; and if any material link is wanting, the whole proceeding is void.
    Where three persons were authorized to estimate the expense of a public improvement in the city of New York, and to assess the same upon the owners and occupants benelitted, and one of the three persons was not consulted and • did not act in making such estimate and assessment; held, that the proceeding was void, and that no title could be deduced through a sale made for the non-payment, of such assessment.
    Where an assessment is signed by two of the persons so authorized, it seems the legal presumption is, that the third was present and acted in the business; but it may nevertheless be shewn that he was noi consulted and did not ac.t.
    One of the assessors who signed the certificate, is a competent witness to prove that the third assessor was not eonsulted.
    The ratification by the Common Council of the city of New York, of a void assessment, does not aid the proceeding. To make out a title there must be a valid assessment duly ratified.
    A request for instruction to a jury should rest upon undisputed facts or a hypo thetical case; and if the proposition which the party submits be not right in all its parts, both as to fact and law, the Judge may refuse to give the instruction asked for, and need not qualify such refusal by pointing out the good and the bad parts of the proposition.
    The publication of the redemption notice required by Stef. 1816,2). 114, § 2, as amended by Stef. 1840, p. 274, § 10, after a sale for a tax or assessment, must be ■ fully completed before the commencement of the last six months of the two years succeeding the sale, and an omission in this respect will invalidate the purchaser’s title, •
    Where the redemption notice is not published according to law, a regular notice served alter the execution of the lease given upon the sale, pursuant to Stef. 1841,2?. 211, § 3, and the certificate by the Street Commissioner, required by § 7 of the same act, do not cohfirm the title.
    The statute which declares that the lease given upon a sale for taxes or assessments in the city of New York, “ shall be conclusive evidence that the sale was regular,” &c. (Stef. 1816,2?. 115, § 2,) refers only to the notice of sale and the proceedings at the auction.

    On error from the Supreme Court. Doughty brought ejectment against Hope to recover possession of a house and lot, situated in the 12th ward of the city of New York. The cause was first tried before Edmonds, Circuit Judge in May, 1845, when a verdict was had for the defendant. The Supreme Court, on bill of exceptions, set aside the verdict and granted a new trial. (See 3 Denio, 249.) The cause was tried again before the same Circuit Judge, at the New York Circuit, in October, 1846, and on this trial the case was as follows :
    The plaintiff claimed to recover under a lease from the corporation of the city of New York, conveying to him a term of 800 years, on a sale for the non-payment of an assessment for setting the curb and gutter stones in 125th street, between the 3rd and 4th avenues. The defendant claimed under the owner in fee, against whom the assessment was made. The ordinance for setting the curb and gutter stones was passed in April 1836, and by the same ordinance Messrs. Warner, Gaines, and Secor, were appointed to make an estimate of the expense of carrying into effect the ordinance, and-a just and equitable assessment thereof among the owners: or occupants of all the houses and lots intended to be benofitted thereby. The three persons thus appointed took the oath required by law. The estimate and assessment were made and returned in September 1837, but the return was signed by only two of the assessors, Warner and Gaines. Warner who was called by the plaintiff as a witness to prove the assessment, on his cross examination gave some evidence tending to show that Secor, the other assessor did not act, and was not consulted in regard to it. The. assessment was confirmed by the Common Council on-the 4th of April 1838, and such further proceedings were had, that the premises in question were sold for the non-payment of the assessment on the 20th of June, 1840, and the plaintiff became the purchaser for the term of 800 years. In pursuance of this sale, the grant or lease under which the plaintiff' claimed, was executed on the 20th of June, 1842. The lease was introduced in evidence by the plaintiff, which recited the proceedings prior to the sale, and that no redemption had been made within, two years from the time of the sale.
    The plaintiff also proved that the. notice to redeem the premises required by law, (Stat. of 1816, p. 114, as amended ly the act of 1840, p. 27í, § 10,) was published in the Evening Post twice a week for six weeks successively, commencing on the 13th of December, 1841, and ending January 21, 1842. He further proved that after the execution of the lease the further notice required by the act of 1841, (Laws of 1841, p. 211, § 3,) in order to render the sale absolute, was duly served; and that on the 31st of July, 1843, the Street Commissioner gave to him a certificate in due form pursuant to the 7th section of the statute last cited, stating that the premises' had not been redeemed, and that such notice had been duly served.
    The evidence being closed, the plaintiff’s counsel insisted, 1st, .that the confirmation of the assessmeñt by the Common Council was binding and conclusive,, whatever irregularity might have occurred in making such assessment. The Circuit Judge held otherwise, and the plaintiff excepted. 2. That it appearing in the evidence (as the counsel claimed) that all the assessors had taken the oath, and adopted the principle of making the assessment, and were all in the Street Commissioner’s office when it was made, it was to be presumed that Secor, who did not sign the report, met and consulted with those who did sign it, and that such presumption could not be rebutted by any impression or non-recollection of the witness Warner; also that Secor alone could prove that he did not act with the others, and as his absence was unaccounted for, no secondary evidence could go to the jury. • The Judge ruled that the legal presumption was, as claimed, that all the asses- ' sors acted, although only two signed the report, but he refused to charge any thing else contained in this proposition, and left it to the jury to find, .upon the evidence of Warner, whether all the assessors were consulted and acted; and in case the jury should find that one of them had nothing to do with making the assessment, then he charged that such assessment was invalid. The plaintiff excepted. 3. That the redemption notice was sufficiently published provided such publication ended at any" time before the expiration of two years from the time of sale, or if not so, that the statutes on this subject were directory merely. The Judge declined so to hold, and charged that such publication must end and be complete before the commencement of the last six months of the two years succeeding, the sale, and that if the notice was not so published, it was a fatal defect in the plaintiff’s title. The plaintiff excepted. 4. That the Street Commissioner’s certificate, given pursuant to the act of 1841, was conclusive, and therefore that the defendant could not avail himself of any defect in the publication of the redemption notice. The Judge refused so to charge, and the plaintiff excepted. 5. That the lease was, by the act of 1816, conclusive evidence of the regularity of the sale, and therefore the defendant could not avail himself of any defect in the publication of the redemption notice.. The Judge' refused so to charge, and the plaintiff excepted. The jury found a verdict for the defendant. The plaintiff moved the Supreme Court for a new trial upon a bill of exceptions, presenting the above questions. . The motion was denied, and judgment rendered for the defendant.

      A. Thompson, for plaintiff in error.

      It. Mott for defendant in error.
   After deliberation, the Court (Gardiner, J. dissenting) affirmed the judgment of the Supreme Court, for the same reasons, substantially, which were assigned by that Court in rendering its judgment. (See 3 Denio 598.)


author: Bronson, J. Wright, J.

text:
    Henry impleaded with Pierce vs. The Bank of Salina.
    A plaintiff on the record, or plaintiff in interest, when called upon to testify under the usury act of 1837, cannot be compelled to disclose facts tending to shew that the promissory' note, to recover which the suit is brought, was discounted by him in violation of the statute (1 H. S. 595, § 28) concerning the discounting of notes, &c., by officers and agents of banking corporations.
    A note discounted by the Teller of a Bank, for his own benefit, in violation of the statute above cited, is void; and where the note alleged to have been so discounted was in suit for his benefit, and in opening the defence to the jury, this was stated as one ground of defence, and usury as another ground, such Teller, although ostensibly called as a witness to prove the usury, cannot be required to disclose the transaction for the reason that his testimony might subject him to a loss of the note upon aground distinct from the defence of usury. A witness, or party called as a witness, may not only object to testifying to the main fact which would subject him to a penalty or forfeiture, but may also refuse to disclose any one of a series of facts which together would expose him to such penalty or forfeiture. •
    Where a witness objected to testifying on the ground that his testimony might subject him to an indictment, or prosecution for a penalty, it is not, in a Court» of Review, an answer to the claim of privilege, that the statute of limitations has run against the offence, unless it appear that such answer was suggested on. the trial. Per Brokson, J. •
    On error from the Supreme Court. The Bank of Salina sued Henry and Pierce in the Court below upon a promissory note signed by Pierce as principal, and Henry as surety, payable to the bank and not negotiable. Henry pleaded the general issue and gave notice of the defence of usury, verifying the notice according to the usury act of 1837. On the trial at the Circuit in April, 1844, after the plaintiffs had rested, the defendant’s counsel opened the defence to the jury, and stated, among other things, that the note was made to he discounted at the plaintiffs’ hank, and was in the first instance presented by Pierce to the bank for discount; that the bank refused to discount it; that this fact was known to Misha Chapman, who was the teller of the bank; that the note was afterwards presented to Chapman, who, with full knowledge that the note had been presented to the bank for discount and refused, discounted the same, and in so doing deducted $10 from the face of the note, under a corrupt and usurious agreement between him and Pierce. The note was payable in sixty-three days from its date.
    To prove this defence the defendant called the said Chapman and had him sworn as a witness, and in the first instance proposed to prove by him, under the plea of the general -issue, that the note was usurious and void. Chapman objected to answering on the ground that his testimony would form a link in the chain of evidence to convict him of a misdemeanor, or would expose him to a penalty or forfeiture. In support of the objection it was ■ insisted that when called as a mere witness, and not as a party under the usury act of 1837, he could not be compelled to testify under the provisions of that act. It was also insisted that he was protected from answering under 1 JZ. 8. 595, § 28, which declares that “ no president, director, cashier, clerk or agent, of any corporation having banking powers, and no person in any -way interested •or concerned in the management of any such corporation, shall discount or directly or indirectly make any loan upon any note which he shall know to have been offered for discount to the directors, or to any officer of such corporation, and to have been refused, and that every person violating the provisions of that section shall for each offence forfeit twice the amount of the loan which he shall have made.” The Circuit Judge sustained the objection of the witness, and the defendant excepted.
    The defendant then offered to prove the usury by the same witness under the notice of the defence of usury served with the plea, on the ground,- that he was the plaintiff, in interest. The witness again objected on the grounds, first, that the act of 1837 did not require him to testify, unless it should first appear that he was the plaintiff in interest and the owner of the note, and second, that he could not answer and shew himself to be the owner of the note, without subjecting himself to a penalty or forfeiture under the' statute which is above set forth, or without establishing a link in the chain of evidence which might subject him to a penalty or-forfeiture, under that statute.' Objection sustained and defendant excepted.

      The defendant then offered to prove by the witness that he was the party in interest. This was objected to by the witness, and the objection sustained on the same grounds, and an exception taken. A verdict was had for the plaintiffs, and the defendant moved the Supreme Court for a new trial on a bill of exceptions. That motion was denied and judgment rendered for the plaintiffs. (See 2 Denio 155.)

      Wm. J. Hough, for plaintiff in error.
    1. Chapman was bound to testify as a witness under the general issue. The case, as disclosed in opening the defence to the jury, did not show that he had actually received usury so as to expose him to an indictment for a misdemeanor, or if it did, the statute of limitations had run so as to be a bar to any such indictment. 2. The defendant should have been permitted to prove by the witness, under the notice annexed to the plea, that he was the plaintiff in interest, and also the usurious agreement. The usury act of 1837 would protect him against the use of his testimony to subject him to any criminal prosecution or penalty or forfeiture; or at all events the statutes of limitation would be a perfect protection. (Henry vs. Bank of Salina, 5 Hill 523, 525-6-7; Stephens vs. White, id. 548; Close vs. Olney, 1 Denio 319; 1 Phil. ev. 223, note (a); 1 Cow and Hill’s notes 739; The People vs. Mather, 5 Wend. 229. 250. 257.)

      H. Hill, Jun., and. Geo. P. Comstock, for defendants in error,
    in addition to the grounds upon which the judgment of the Supreme Court was placed, insisted, that if the note was discounted in violation of the statute above referred to concerning banking corporations, it was void and could not be recovered in this action, (Chitty on Cont. 6 Am. ed. 656, 657 ; Story on Cont. § 218, &c.; Collins vs. Blantern, 1 Smith’s leading cases 169; Nellis vs. Clark, 20 Wend. 32,) and regarding Chapman as plaintiff in interest, (as. he was claimed to be on the trial) his testimony, if he should disclose the transaction or any part of it, might be used on the trial to defeat a recovery upon this ground, even if the defence of usury should fail, and thus subject him to a loss of the money he had loaned. This would be such a forfeiture as would bring him within the rule of protection; and against this forfeiture no statute of limitations had commenced to run. (Livingston vs. Harris, 11 Wend. 330, 331; S. C. 3 Paige 533, 538; Story’s eq. pl. §§ 579, 580, 2, 3, 4; 1 Greenl. ev. § 452, and notes, 2 R. S. 405, § 71.)
   Bronson, J.

There is another ground, besides those mentioned by the Supreme- Court, on which Chapman was privileged from answering the questions put to him. It was. one branch of the defence that the witness, being the teller of the bank, discounted the note after it had, with his knowledge, been offered for discount to the directors, and been refused by them. If this fact could be established, Chapman would not only forfeit twice the amount of the loan which he made, (1 R. S. 595, § 28,) but he would forfeit the debt itself. As the discounting of the note was expressly forbidden by the statute, there can be no doubt that the security would be void. A witness must speak, though the answer may establish that he owes a debt, or is otherwise subject.to a civil suit; but he is not bound to speak where the answer may subject him to a forfeiture, or any thing in the nature of a forfeiture of his estate or interest. (2 R. S. 405, § 71; 1 Phil. ev. 278; Mitf. Plead. 197, ed. of ’33; Livingston vs. Tompkins, 4 John. Chan. 432 ; Livingston vs. Harris, 3 Paige 533, and 11 Wendell 329, S. C. in error.) As the answer of the witness might, tend to establish facts which would work a forfeiture of the debt, he was not obliged to testify. This ground is of itself sufficient to establish the privilege of the witness; and as to this, the statute of limitations has no application.

The grounds on which the privilege of the witness was put by the Supreme Court are equally conclusive, unless a prosecution under the usury law, and a suit under the bank law for twice the amount of the loan, had been barred by the statute of limitations; and there is nothing in the case to show that a prosecution, or a suit, or both of them, had not been com* menced in due time. In all the cases where it has been held that the running of the statute took away the privilege of the witness, it expressly appeared, not only that the time for sueing or prosecuting had elapsed, but that no suit or prosecution had been commenced, or if one had been commenced, that it had been discontinuéd. Here the statute was not even mentioned on the trial. It may not have been necessary for the defendant to prove the neg'ative fact that no suit or prosecution had been commenced. But- if he intended to rely on the statute, he was at least bound to say so; and then the witness might have answered, -that proceedings against him had already been commenced.

The witness claimed his privilege, and there was a prima facie case for allowing it. If there was any answer to that caso, the defendant should have mentioned it,, for the double purpose of allowing the truth of the supposed answer to be examined at the proper time, and of dealing fairly with his adversary and the Circuit Judge. A party is not at liberty to start a question, on a motion for a new trial, or in a Court of Boviow, which, had it been mentioned on the trial, might have received a satisfactory answer. This is a principle of every-day application, and there is nothing in this case which should induce a departure from it.

Wright, J.

A president, director, cashier, clerk, agent, or any person in any way interested or concerned in the management of the concerns of any banking corporation, is prohibited by statute from discounting, or directly or indirectly making any loan upon any note, bill, or other evidence of debt, which shall have been offered to the directors of such banking corporation for discount; and every note, bill, or other evidence of debt, so discounted, or upon which any loan shall have been made by any of the persons aforesaid, knowing that such note has been so offered and refused, shall be utterly void. (1 R. S. 604, § 10.) The statute declaring the act of discount or loan unlawful, the note or bill would also be void upon general principles. It is a settled doctrine that a contract prohibited by statute is void.

The defendants’ counsel, among other things, stated to the jury, in opening the defence, that the note in question had been presented in the first instance to .the Bank of Salina for discount; that the bank refused to discount it; that this was known to Elisha Chapman, who was at that time the teller of the bank; that the note was subsequently presented to the said Elisha Chapman, who, with full knowledge that the same had been presented at the bank and refused, discounted the note, and in so doing, deducted §10 from the face thereof under a corrupt and usurious agreement between him and the defendant, Pierce. Chapman was then called as a- witness, and both under the plea of the general issue, as a mere witness, and under the notice annexed to and served with the plea, as plaintiff in interest, refused to answer any of the several questions put to him, urging, amongst other grounds, that such answers might form a link in the chain of testimony tending to expose him to a penalty or forfeiture.

Without discussing the questions whether Chapman, when called as a mere witness, and not as plaintiff under the usury law of 1887, was protected by that statute, or whether when called under the notice annexed to the plea of the general issue, as plaintiff in interest, before he can be compelled to answer and criminate himself, it must first appear that he is the plaintiff in interest; or whether for the reason that the statute of limitations had run both against the criminal of-fence of usury, and the forfeiture of twice the amount of the 'loan, under 1 R. S. 595, § 28, he was protected against the consequences of his testimony, -I am of the opinion that the witness was privileged from testifying. Any one of the questions propounded might have formed one link in” a chain of testimony tending to bring him within the statutory prohibition as to the discounting of notes by bank officers, and showing him guilty of an unlawful act, one of the consequences of which was an utter forfeiture and loss of the note. And this was a consequence from which the statute of limitations could not save Mm. The rule is well settled that a witness is not required to give any answer which will have a tendency to accuse himself of any crime or misdemeanor, or to expose Mm to any penalty or forfeiture; or when, by answering, a link may be added to a chain of testimony tending to such a result. The defendants proposed to shew a state of facts, in wMch Chapman was the guilty actor, rendering the note utterly void. They were therefore called upon to shew it without Ms aid. The act of 1837, authorizes the calling and examination of the plaintiff for the purpose of proving the usury, and excuses Mm from criminal prosecution; but I cannot agree to the doctrine advanced by the counsel for the defendants, that when called under that act, whether the interrogations propounded tend to subject him to a penalty or forfeiture, distinct from the question of usury or not, he is bound to answer.

The judgment of the Supreme Court should be affirmed.

GrRAT, J. delivered a written opinion in favor of reversing the judgment.

All the other Judges were for affirming the judgment upon the ground taken in the opinion of Wright, J., and first considered in the opinion of Bronson, J., but without considering or passing upon the other' questions presented. ^

Judgment affirmed.