Note, dissenting opinion, per POTTER, J., below. ment, and the petition thereon, to be counted with such majority. The burden of showing want of jurisdiction is not with the relators, but by the party claiming jurisdiction, to show it when called upon. It is not, therefore, with good grace that, upon such a return, the respondents should seek to cast this burden upon the relators. But, besides this, there is the evidence of Mr. Batcheller, in which he enumerates the names that were omitted, and this is not among the omissions. Another case is that of the Congregational church, whose name is upon the assessment roll" Congregational Society," but who petitioned for the issue of these bonds by the name of the "First Congregational Society," $9,400, which was signed by Doctor L. E. Whiting, Solon B. Bushnell, and Levi S. Packard, under their corporate seal, and authorized by a resolution of the board of trustees. First. There was no legal or other proof before the county judge of the existence of such a corporation as is represented by the assessment roll, tax list or signatures; and if there had been such evidence, there was no power in this board of trustees to create such a liability against the property of the corporation they represent. A religious corporation, created under the general statute, consists not of the trustees alone, but of the whole members of the society. It is the society that is incorporated, not the trustees; and its members are the corporators. The trustees are only the managing agents or officers of the corporation, in charge of the temporal affairs of the society, with powers specifically conferred by the statute; but with no other powers. They cannot alien, mortgage or encumber the estate of the corporation but by permission of the court, except to mortgage for debt, under certain circumstances. (Robertson v. Bullions, 10 N. Y. R., 343.) Their powers being specified by the statute, this specification excludes all other powers; and to devastate and create liabilities is not among the specified powers. They neither proved to the judge their corporate existence, nor any power to sign such a petition. The act of 1869 confers no new power upon them. While it allows representatives of taxable property to petition, it is to be construed to mean legal representatives, especially in an act which would devest individuals or corporations of their estates. The county judge was bound to exclude this petition upon the evidence produced before him. This was to the amount of $9,400. Before the act of 1869, so would have stood the case at common law and statute. But it is claimed that there is an express provision in the act of 1869, that allows corporations to become petitioners. This is true. It permits, however, only solvent corporations. so to petition; and the burden of proving solvency was with the petitioners. This was necessary to confer jurisdiction upon the judge. This was not done. In this case the judge has presented to us the proof, but its solvency was not proved. Another petitioner was that of the Baptist church, representing $740, set forth on the petition, "S. B. Terwilliger, W. Waterbury, Baptist church." This authentication is still more defective than that of the Congregational church. The only evidence in Note, dissenting opinion, per POTTER, J., below. this case is, that the two persons named signed the petition. It does not appear that they were even members or trustees of this church; much less, that they were authorized to sign a petition to encumber their property The same remarks apply to this case as to that of the Congregational church. Another petitioner, whose name upon the assessment roll stands as follows: "Wiebelzahl Wm., Mrs. $460." Upon the petition is the same name, with the addition at the end, "administratrix." There is no other name on the tax list that resembles this, and the name, "as administratrix," added, is allowed to be a petitioner, with no proof that she is such administratrix; nor is it easy to see how an administratrix can vote to encumber real estate, which generally belongs to the heirs-at-law. To entitle her to petition she must be a legal representative of the real estate assessed. Another petitioner whose name was upon the assessment roll was "the Red Spring Company," $560. The return does not show by whom this petition was signed; and there is the absence of all evidence that anybody was authorized to sign for this company, as well as the want of evidence of solvency, in order to confer jurisdiction upon the judge. There were several petitioners claiming to represent estates, viz.: Simeon H. Barrett's estate, $600; C. Buell's estate, $600; Nelson Burnham estate, $360; William Putnam estate, $1,000. There is no legal evidence in the case that the persons signing the petition legally represented these estates or had authority to sign the petition. The name of Elvira Putnam appears upon the tax list for $200. The petition is signed by her as administratrix, without evidence of authority, or rather with the presumptive legal evidence that she possessed no authority. Among the petitioners is "Walter Barrett estate." What amount of estate this petition represented, cannot be determined, as no such name is found on the assessment roll for 1869; but adjoining and next to two names of Barrett is "Walter Balfour," and there is no other name upon the roll so nearly resembling it. This name represents $1,500. There is either no proof to make this petition good for any amount, or if it represents an estate, there is the additional defect of proof of authority; or if it is a clerical error, meaning "Balfour," then it is the representative of $1,500. If it be neither of these, the name is not on the tax list. The burden was upon the party claiming jurisdiction from it to show this and to show how much he represented by his petition; it may have been received for a very large amount. There also appeared upon the list of taxable estates the name of George S. Batcheller, guardian, $6,666. In this case Mr. Batcheller, being sworn, proved himself to be guardian of the Cook estate, but did not offer any evidence of his authority to encumber the estate of his wards or to commit devastation of it. He had no authority at common-law or by statute, unless the statute of 1869 can be stretched to authorize the estates of his ward to be thus devested, which, as we have already stated, is not the rule by which such statutes are to be construed. Had he applied to the Statement of case. court for permission so to encumber it, it would have been refused. The same remark will apply to the petition of "John C. Hulbert, guardian," $2,000; to which it may be added, that in the latter case, there was no evidence of the existence of guardianship, nor of the name of the estate, or persons for whom he was guardian. The name of D. B. Harrington was also included, who was a petitioner to the amount of $6,000. This was also proved before the judge, and by the testimony of Mr. Batcheller. His petition was not excepted from the amount estimated as a part of the majority. The name of D. B. Harrington is not upon the assessment roll presented before us, nor any name that resembles it, representing any such sum. The taxable value of the property of the town is, by But adding Walter Barrett, upon the assumption of a clerical error in his name..... There is a failure of a majority by.. $1,159,085 00 1,189,394 00 30,304 00 30,586 00 177 00 1,500 00 1,677 00 If I am right in these views, we need not discuss the other questions in the case. It is a question of jurisdiction. Jurisdiction was questioned; the writ called upon the actors to show their authority; the strictest construction of the statute was demanded. I think jurisdiction has not been shown, and that the proceedings should be set aside. WILLIAM M. LOWRY et al., Appellants, v. WILLIAM H. INMAN, Stockholders in a banking corporation are only personally liable, or their individual property chargeable for the debts of the corporation, to the extent, and as prescribed by the charter. By the act of becoming stockholders they assent to the terms, and assume the liabilities imposed by the act creating the corporation. The obligations thus assumed are limited by the terms of the charter, and cannot be extended by implication beyond the terms of that instrument, reasonably interpreted. If a general personal liability is created, it may be enforced by a personal action, as other personal obligations are enforced. If the charter merely Statement of case. permits the individual property of stockholders to be levied, and taken upon execution, on a judgment against the corporation in a given contingency, and provides that the same process may be used and enforced by the stockholders whose property is first taken, against the property of the other stockholders, so as to compel a ratable contribution by all, no general individual liability is created for which a personal action can be brought. In such a case the creditor of the corporation is confined to the remedy against the stockholders and their individual property given by the act. Where the individual property of the stockholders is made liable for the debts of the bank, either absolutely or conditionally, and by a specified process, an indorsement upon the bills of the bank of the words, “individual property of stockholders liable," is but notice of the charter liability, and of itself gives no rights of action to the bill-holders against the stockholders, or against the president or cashier of the bank signing the bills officially. The bill-holders, by means of such indorsement, acquire no rights against the officers or stockholders or their property other than such as are given by the charter, with which all persons dealing with the corporation or receiving its obligations are supposed to be conversant. (Argued June 7th, 1871; decided September 2d, 1871.) APPEAL from judgment of the General Term of the Superior Court of the city of New York, affirming order and judgment of the spring term, sustaining defendant's demurrer to plaintiff's complaint. The complaint alleges, that the defendant was a citizen of Georgia, and a stockholder of the North-western Bank of Georgia, owning at the time of the issuing of the bills sued on, and at the present time, $25,000 of the stock, par value, being one-eighth part of the stock of the bank. The complaint further alleges, the issuing of divers bills or notes by said bank; the ownership thereof by the plaintiffs; the bringing of a suit thereon against the bank; the service and appearance of the bank; the defence of the action on the merits; and the recovery of a judgment against the bank; the issuing of an execution against the property of the bank, and the return thereof unsatisfied. That the defendant, as president or cashier of said bank, signed a part of said bank bills, containing the words "individual property of stockholders liable," and issued the same. Statement of case. That the plaintiffs gave value for said bills, knowing of said words, and relying upon the assertion of the defendant, that the stockholders of said bank were individually liable for said bills. Section 18 of the charter, under which defendant's liability is claimed to arise, is as follows: Section 18. "And be it further enacted by the authority aforesaid, that no one shall subscribe for or own or purchase stock in said bank, unless he or she be a citizen of Georgia, and one-third of said stock shall be subscribed for by citizens of Georgia. "The private or individual property of each stockholder, as well as their joint property, shall be liable for the redemption of the bills of said bank, and for the payment of all the debts and liabilities of the same, and when any judgment shall be obtained against said bank, and execution issued thereon, it shall be the duty of the levying officer, first to levy the same on the property of said incorporation, and to sell the same; and if the proceeds thereof shall be insufficient to pay off said execution, and the return of said officer, of no corporate property shall be sufficient proof of the same, it shall be the duty of said officer, next to levy said execution on the individual property of any stockholder or stockholders, and sell the same, until an amount is raised sufficient to pay off said execution; provided the same is not for a greater amount, than the value of the stock of the stockholder whose property is levied upon, and if for a greater amount, in that case an amount equal to the amount of his stock. And judgment obtained against said bank by any creditor, shall not only bind the property of said bank, but shall also bind the individual property of each stockholder, to the amount of his stock, without the necessity of bringing any suit against the stockholders; and service of a copy, in substance, of the declaration and process upon the president or cashier of said bank, shall be adjudged sufficient service and notice, both to said bank and to each stockholder therein, to render the property of said bank, and the individual property of each stockholder SICKELS-VOL. I. 16 |