Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/783

 CHAP. XIV.] OFFICERS AND CREDITORS. [§ 767. none of the preceding classes, whose object it is, by creating presumptions, to put on the directors the disproof of certain matters which it might be hard for other persons to prove. For instance: "Every insolvency of a chartered bank . . . . shall be deemed fraudulent." * " It is presumed that directors present at a meeting assent to the measures there passed; and that within a certain time, or after such measures are entered on the books of the corporation, absent directors have knowledge of them." 2 Although it would be beyond the limits of this treatise to discuss in detail the effect of the various statutes which impose liability on directors either for failure to do certain acts which are prescribed, or for doing certain other acts which are for- bidden, 3 still a few illustrations of the more frequent of these statutes and their effect may not be out of place. § 767. Enabling acts very commonly require corporations to file annual reports of their condition, and make direct- ors liable for the debts of the corporation on a failure Liability 1 ., for failure to do so. 4 Such a requirement was contained in the to file New York Manufacturing Companies Act of 1848. 3 reports. Although that act is repealed, some of the New York v. Montgomery, 145 111. 30. A stat- ute provided that no corporation should create any debt in excess of its paid up capital stock, and that the directors voting for or consent- ing to tthe creation of such debt should be personally liable therefor to the creditors of the corporation. Held that the statute imposes a lia- bility upon the consenting directors "to the extent of such excess, not for the benefit of any particular creditor, but for the benefit of all, and their liability is in equity a fund to which all the creditors may resort for the satisfaction of such debts as the corporation itself fails to pay, to be shared in by all in pro- portion to the debt remaining un- paid. . . . The liability is second- ary, to be resorted to only after the usual remedies against the corpora- tion have been exhausted," although the statute contains no such express provision. Nat. Bk. v. Dillingham, 147 N. Y. 603, 610. Under such a stat- ute a part of the creditors cannot sue on their own behalf, but suit should be brought in behalf of all. Moulton v. Connell Co., 93 Tenn. 377; Trades- man Pub. Co. v. Wheel Co., 95 Tenn. 634. 1 Georgia Code, 1873, § 4428. 2 California Penal Code, §§ 569, 570. 3 J. e., statutes of the third and fourth classes. 4 To an action by a creditor to charge a director with the penalty for a failure to file a report, the di- rector cannot plead that he did not 8 For note 5 see page 764. 763