Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/786

 § 773.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. XIV. of their first failure to file a report, 1 and successive failures do not prevent the statute from running. 2 § 771. A liability of this character being penal does not survive the death of the delinquent trustee, as against his representatives, nor 3 the death of the plaintiff occurring in the course of the action. 4 However, the right to enforce this lia- bility passes with an assignment of the debt. 5 § 772. Although the language of the New York statute is broad enough to include a debt of the corporation included in to one of the trustees who are in default, yet such a biiity*" result is held not to be within its spirit ; and neither a delinquent trustee nor a firm of which he is a member can take advantage of a default for which he is in part responsible, to recover against his co-trustees. 6 An as- signee for value, however, who takes an absolute assignment of a debt of the corporation can maintain an action against the trustees, although his assignor remains a trustee up to the time of the default. 7 § 773. Where on account of a failure to file a report, direct- ors or trustees are made liable for the " debts " of the corpora- tion, corporate liabilities " which may give causes of action against it and result in judgments are not within the statute unless they constitute present debts ; " for a debt is " something which may be subject to a suit as a debt, and not something to which the party may be entitled as damages in consequence of a failure to perform a duty or keep an engagement." 8 1 Duckworth v. Roach, 81 N. Y. 49. Compare Larsen v. James, 1 Col. App. 313. 2 Losee ». Bullard, 79 N. Y. 404; see Chapman v. Lynch, 156 N. Y. 551 ; Morgan v. Hedstrom, 165 N. Y. 224. 3 Stokes v. Stickney, 96 N. Y. 323; Mitchell v. Hotchkiss, 48 Conn. 9. 4 Brackett v. Griswold, 103 N. Y. 425. The cause of action here was not a failure to file the report, but the filing a false report. 6 Pier v. George, 20 Hun, 210; S. C, aff'd 86 N. Y. 613. 6 Knox v. Baldwin, 80 N. Y. 610; 766 Briggs v. Easterly, 62 Barb. 51. See Adams v. Mills, GO N. Y. 533. Com- pare Thacher v. King, 156 Mass. 490. But a creditor who is also a stockholder, may recover on this lia- bility of the trustees. Sanborn v. Lefferts, 58 N. Y. 179. i Cornell v. Roach, 101 N. Y. 373. But compare Brackett v. Griswold, 103 X. Y. 425. 6 Lockhart v. Van Alstyne, 31 Mich. 76, 78, per Cooley, J.; ace. Cady v. Sauford, 53 Vt. 632. See Whitney Arms Co. v. Barlow, 68 N. Y. 34; Victory Webb Printing Co. v. Bucher, 26 Hun, 48; Allen