Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/781

 CHAP. XIV.J OFFICERS AND CREDITORS. [§ 764. positive (commanding) or negative (forbidding), have Thild and been usually adjudged penal ; and this, too, whether fourth the penalty consists in (1) a specific sum of money, (2) creation of general liability on the part of directors for corporate debts, or (3) in making certain acts or omissions felonies or misdemeanors. 1 From the view that statutes of these two classes are penal, important consequences follow. First, a number of courts have refused to enforce them outside of the state enacting them. 2 Secondly, when the liability of a director under one of these acts is enforced against him, it seems that he will have no action for contribution against his co-directors; 3 and thus the "joint and several" liability of directors under these statutes may mean little more than they may be joined as defendants. Thirdly, these statutes are to be construed strictly. 4 Fourthly, a repeal of them even so as to effect existing debts is constitutional; 5 for there can be no vested right to recover a penalty. 6 And, finally, the liability 1 Wiles v. Suydam, 64 N. Y. 173; First Nat. Bank v. Price, 33 Md. 487: Sturges v. Burton, 8 Ohio St. 215; Breitung v. Lindauer, 37 Mich. 217; Kritzer v. Woodson, 19 Mo. 327; Gregory v. German Bank, 3 Col. 332; Union Iron Co. v. Pierce, 4 Biss. 327; Irvine v. McKeon, 23 Cal. 472; Nassau Bank v. Brown, 30 N. J. Eq. 478, 484; Stebbins v. Edmands, 12 Gray, 203; Billings v. Trask, 30 Hun (N. Y.), 314; Gadsden v. Woodward, 103 N. Y. 242. See §771. 2 First Nat. Bank v. Price, 33 Md. 487; Derrickson v. Smith, 27 N. J. L. 166; Halsey v. McLean, 12 Allen, 438; Bird v. Hayden, 2 Abb. Pr. N. S. (N. Y.)61; S. C, 1 Robt. (N. Y.) 383; Veeder v. Baker, 83 N. Y. 156. Contra, Huntington v. Attrill, 146 U. S. 657. See Story, Confl. of Laws, §§ 620, 621 ; Whart. Conn, of Laws, §§ 853 et seq.: and compare §§ 393 and 714, note, ante. 8 Andrews v. Murray, 33 Barb. 354. Contra. Nickerson v. Wheeler, 118 Mass. 295. See §§ 767, 805. Manhattan R'y Co. v. Kaldenbersr 165 N. Y. 1; Steam Engine Co. v. Hubbard, 101 U. S. 188; Gray v. Coffin. 9 Cush. 192; Chase v. Curtis, 113 U. S. 452. See Pier v. Hanmore, 86 N. Y. 95. Compare Western Union Tel. Co. v. Hamilton, 50 Ind. 181; Wing & Evans v. Slater, 19 R. I. 597. Judgment against the cor- poration is not even prima facie evidence in an action against the di- rectors to charge them with the debts of the corporation for their failure to file a report. Miller v. White, 50 N. Y. 137. 5 Breitung v. Lindauer, 37 Mich. 217; Union Iron Co. v. Pierce, 4 Biss. 327; Gregory v. German Bank, 3 Col. 332. 6 Yeaton v. United States, 5 Cranch, 281; Norris v. Crocker, 13 How. 429. 761
 * Bonnellu. Griswold, 80 N. Y. 128;