Haskins v. Harding. witnesses. But compare United States v. Case, supra, with which it seems difficult to reconcile it. As to the limited powers and jurisdiction of justices of the peace in Missouri State v. Metzger, 26 Mo. 65; Williams v. Bower, ib. 601. HASKINS V. HARDING, et al. 1. Under the statutes of Missouri, the remedy of a judgment creditor of an insolvent manufacturing and business corporation to enforce the personal liability of stockholders is by suit, and not by motion. (1 Wagner, St. of Mo. p. 336, sec. 13.) As to certain corporations, the statute gives such a remedy by motion. (1 Ib. p. 291, sec. 11.) 2. Under the statutes of Missouri, it is a condition of the right of a creditor of an insolvent corporation to enforce in a summary manner a liability against stockholders personally, that the creditor shall have brought suit against the corporation within one year after his debt became due. Accordingly, where the plaintiff brought suit against the corporation on the debt in the state court within the year, and took a non-suit, and within a year thereafter, but more than a year after his debt fell due, brought a new suit in the federal court and recovered judgment, it was held he was barred by lapse of time of the right to enforce a summary personal liability on the part of stockholders. 3. Whether the one year's limitation would apply if creditors of the corporation should bring a suit in equity to enforce against stockholders' payment of their subscriptions for their stock, quære ? (Before DILLON and TREAT, JJ.) Insolvent Corporations.- Individual Liability of Stockholders.How Enforced.- Missouri Statutes Construed. THE plaintiff is a judgment creditor of "The Cambridge Gas Stove and Boiler Company," and files his motion for execution against certain stockholders in that company. The motion is based on section 11, chapter 62, of the General Statutes of Missouri. (1 Wagner's Statutes, page 291, section 11.) This chapter relates to the general powers and Haskins v. Harding. liabilities of corporations in the state of Missouri, and the eleventh section is as follows: "If any execution shall have been issued against the property or effects of a corporation, and there cannot be found whereon to levy such execution, then such execution may be issued against any of the stockholders to an extent equal in amount to the amount of stock by him or her owned, together with any amount paid thereon; provided, always, that no execution shall issue against any stockholder except upon an order of the court, made upon motion in open court, after notice to the persons to be charged; and upon such motion, the court may order execution to issue accordingly." The constitution of the state contained a provision to this effect: "Article 8. Section 6.-Dues from private corporations shall be secured by such means as may be prescribed by law; but in all cases each stockholder shall be individually liable, over and above the stock by him or her owned, and any amount unpaid thereon in a further sum, at least equal in amount to such stock." After the plaintiff's judgment was obtained, this provision of the constitution was amended to read as follows: "Article 8. Section 6.-Dues from private corporations shall be secured by such means as may be prescribed by law; but in no case shall any stockholder be individually liable in any amount over and above the amount of stock owned by him or her." This amendment went into force December 12, 1870. Plaintiff's motion sets out that on the 12th day of November, 1870, he recovered a judgment in this court against the Cambridge Gas Stove and Boiler Company; that thereon two writs of execution have been issued against the company and returned, "no property; " that the judgment remains wholly unsatisfied, and that certain persons — Harding, Pope, and others (naming them, and the amount of stock they respectively own)- were, at the time the indebt Haskins v. Harding. edness to the plaintiff was created, and at the time his judgment was recovered, and are at the present time, stockholders in the said company, and that none of said stockholders have paid for their stock, and are severally liable for an amount equal to the amount of stock owned, and the amount unpaid thereon. Wherefore, the plaintiff moves for an execution against the stockholders, to enforce a personal liability to him so far as necessary to satisfy his judgment. Notice of this motion having been duly served upon the stockholders, they have appeared, and resist the application on several grounds: 1. They claim that said section 11 of chapter 62 (Wagner's Stat. 291) has no application to the class of corporations to which the said company belongs; but that their liability is specifically provided for by section 13 of chapter 69 of General Statutes (Wagner's Stat. 336), and if so, then they further insist that such a motion as the plaintiff makes is not authorized by it, but that any liability on their part must be enforced by suit. And they also insist that the plaintiff' action against the company was not brought within the one year required by that section. This section (section 13, chapter 69, relating to "Manufacturing and Business Corporations") is as follows: "No stockholder shall be personally liable for the payment of any debt contracted by any company formed under this charter (and it is admitted that the said corporation was formed under this charter), which is not to be paid within one year from the time the debt is contracted, nor unless a suit for the collection of such debt shall be brought against such company within one year after the debt shall become due; and no suit shall be brought against any stockholder who shall cease to be a stockholder in any such company for any debt so contracted, unless the same shall be commenced within two years from the time he shall cease to be a stockholder in this company, nor until an execution shall have been re Haskins v. Harding. turned unsatisfied in whole or in part." (Wagner's Stat. 336, section 13.) The facts relating to the time the plaintiff's suit was brought against the company are these: His note against it fell due June 27, 1867, and he brought suit thereon in the state court March 20, 1868, against the corporation, which defended, and on the trial the plaintiff took a nonsuit and then brought his action in this court September 18, 1869, and recovered judgment November 12, 1870. The stockholders also insist: 2. That this court, not having, by rule, adopted the above-mentioned special provisions of the state statutes as to enforcing the individual liability of stockholders, has no power to grant the motion or make the order asked for by the plaintiff. It is admitted by stipulation that the persons named in the motion are stockholders, as stated therein, and that they have only paid twelve and one-half per cent upon the par value of the shares of stock owned by them respectively. It is also admitted that the corporation debtor was formed under the seventh article of chapter 69 of the General Statutes of 1865. (Rev. Statutes, 1865, p. 367; 1 Wagner's Statutes, 332.) Glover & Shepley, for the motion. Chester Harding, Jr., & W. S. Pope, for the stockholders. DILLON, Circuit Judge.-I am inclined to the opinion that a non-resident creditor of a Missouri corporation who has obtained judgment in this court is entitled to the same or similar remedies, by execution or otherwise to enforce it, that creditors have who obtain like judgments in the state courts, and that it is not indispensable or necessary in order to give this right that there should be a rule of court adopting those portions of the state statutes which provide the manner in which the individual liability of the stockholders Haskins v. Harding. shall be summarily enforced. Whatever doubt there might be upon this subject seems to be removed by the act of June 1, 1872. (16 Stats. at Large, secs. 6 and 7.) But under the view we take of the case it is not necessary for the court now to give any opinion upon this question. Admitting, then, for the purposes of this case, that the plaintiff is entitled to all the remedies and processes for enforcing payment of his judgment that he could have if he were in the state court, we are thus brought to the question whether his motion for an execution against the stockholders is well taken. It will be observed that he proceeds by motion and not by suit, and his motion is confessedly founded upon section 11 of chapter 62 of the General Statutes of Missouri (Wagner, p. 291, sec. 11). This section is copied in full in the statement of the case. If the provisions of the section apply to the class of corporations to which "The Cambridge Gas Stove and Boiler Company" belongedthat is to say, if they apply to "Manufacturing and Business Corporations," such as are provided for by chapter 69 of the General Statutes (Wagner, 332), the plaintiff, it seems to me, brings his case within its requirements, and as against any objections which the stockholders have made, would appear to be entitled to the order he seeks; but does the above-mentioned section 11 of chapter 62 apply to manufacturing and business corporations organized under chapter 69? Chapter 62 relates to the general powers and liabilities of private corporations, and it is in this chapter section 11 occurs. Chapter 63 relates to railroad companies; chapter 64 to plank-road companies; chapter 65 to telegraph companies; chapter 67 to eminent domain; chapter 68 to savings banks and fund companies, and chapter 69 to manufacturing and business companies. It is admitted that the corporation debtor to plaintiff was organized under this chapter. The thirteenth section of this chapter makes specific provisions in relation to the personal liability |