and that a formal assignment should be made subsequently, such a palpable evasion of the statute might not be sustained. But that question is not presented for decision. It is clear that no suit can be brought by the creditors against the assignees and Day until a demand has been made upon the assignees to sue, and they have refused to do so. The bill does not allege that before this suit was brought the creditors requested the assignees to sue, and they refused to comply. The assignees are the proper parties to bring all suits to recover property belonging to the estate. Without expressing an opinion upon any of the other questions presented by the demurrer, it was sustained solely on the ground that the suit was brought by a creditor without a demand being first made the suit. upon the assignees to
V. FISK. 1
(Circuit (Jourt, E. D. Missouri. March 20, 1885.)
JURISDICTION-LIABILITY OF STOCKHOLDERS-REV.
ST. Mo. §§ 736, 745. A creditor who recovers judgment in a state court against a corporation not, under the Mis,ouri Statutes, while the corporation remains undissolved, maintain an action at law in this court against a stockholder in the corporation to recover an amount due from him on unpaid stock.
In the absence of any statutory pruceedings such matters are only cognizable in equity.
Demurrer to Petition.
Fred. T. Ledergerber, for plaintiff. Geo. D. Reynolds, for defendant. TREAT, J., (orally.) This is an action brought by a judgment cred-
itor of a railroad corporation against the defendant, as a stockholder, for the amount due from him on nnpaid stock. The original judgment was had in the circuit court of Cape Girardeau county. This suit is an independent action brought by the judgment creditor against this stockholder in the St. Louis circuit court,-an ordinary action at law. Matters of this nature are cognizable in equity, and only in equity, unless there is some statutory proceeding with respect thereto. That has been fully determined, notably in a case in 106 U. S. Patterson v. Lynde, 106 U. S. 519; S. C. 1 Sup. Ct. Rep. 432. Now, the Missouri statute has two provisions:
(1) Execution having been returned nulla bona, to cite in a stockholder and award what is in the nature of a judgment, that is a new execution against bim for the portion of the stock unpaid. But that ill ust be done in the court where the original judgm'ent was rendered. (2) There is another provision
1Reported by Benj. F. Rex, Esq.· of the St. Louis bar.
WILSOB fl. VAUGHN.
that, where the corporation is dissolved, you may proceed by an Independent suit.
Now, nothing of the kind has occurred in this case. The party has no standing under the statute at all, nor has he pursued ,the remedy which the statute prescribes. So far, then, as this court is concerned, a common-law action cannot be tried in this way against a. stockholder of an undissolved corporation. Demurrer sustained, and judgment entered for defendant.
March 4, 1885.)
(Oi1'cuit Court, D. Kansas.
EXEMPLARY DAMAGES-WILLFUL REFUSAL OF COUNTY COMMISSIONERS TO LEVY TAX TO PAY JUDGMENT,
In an action against county commissioners to recover damages for a willful refusal on their part to levy a tax on taxahle property in a township to payoff a judgment held by plaintiff against such township, in obedience to a peremptory writ of mandamus from the United States circuit court, plaintiff will he entitled to recover exemplary or punitive damages, although the actual damage sustained by him was merely nominal.
Motion for New Trial. Botsford et Williams, for plaintiff. Ritter et Anderson, for defendants. FOSTER, J. This action was brought by the plaintiff against the defendants, who are the commissioners of the county of Cherokee, to recover damages for a willful refusal on the part of the said commissioners to levy a tax on the taxable property of Salamanca township, in said county, to payoff a judgment held by plaintiff against said town. ship, in obedience to a peremptory writ of manda·mus from this court. The recovery of the judgment, the issue and service of the writ com· manding the levy of the tax, and the willful disobedience thereof by the defendants, were admitted on the trial, and two of the defendants on the witness stand testified that it was not their purpose to levy the tax hereafter. The plaintiff claimed as his damages the full amount for which the writ was issued,-about $19,000. On the trial the court instructed the jury as follows:
"(}entlemen of the Jury: In this case, under the pleadings and evidence, the plaintiff is entitled to recover against the defendants, as it was clearly the duty of the defendants to have levied the tax as commanded in the peremptory mandamus, and which they willfully refused to do. The plaintiff is entitled to recover his actual damages sustained by reason of such failure and refusal on the part of defendants. But inasmuch as he has not lost his debt or judgment, or any part thereof, and as there is evidence to show that the debtor township is fully able to respond to his debt, and that the refusal of the defendants to levy the tax has only delayed the collection of his debt and the