What is the act complained of in this suit? It is the declaring and paying a dividend which did diminish the amount of the capital stock. That is just the act which the legislature forbids in the thirteenth section of the law of 1848. (Laws of 1848, p. 57, chap. 40, § 13.) It is just the act which, among others, is forbidden by the Revised Stautes. (1 R.S., 601, § 2.) Each law imposes a penalty, and prescribes by whom it shall be enforced, for the doing of that act. As to the penalty the laws differ. The amount of the penalty is different, and it is enforceable by different persons; and different modes are provided for dissenting directors or trustees to escape from it. At once we ask, did the legislature intend, in the passage of the act of 1848, to make another additional penalty, and to give it to a different person, and to require dissenting trustees to take both methods or not escape? Unless there was such intention, it is manifest that the two acts will not stand together, and the one first passed must give way. To ascribe such an intention to the legislature, needs some reason more than the bare passage of the latter law. But when we look to the circumstances in which the last law was enacted, they do not furnish any ground for such ascription, but rather the contrary. The Constitution of 1846 authorized and required the passage of general laws for the formation of corporations. (Const., art. 8, § 1.) The legislature of 1848 met the requirement, in part, by the passage of a general law for the formation of manufacturing corporations, in which there was provision not only for the organization thereof, but for many of the details of their management. It is not too much to say that wherein the legislature made provision for such details, therein it intended to prescribe the sole and complete rule for the corporation. This being so, the former rule of the Revised *Page 426 Statutes therein, though it might remain for the guidance of corporations existing under them, is confined in its operation to them. No rule of application of statutes is infringed by so holding. Where the legislature has once provided a special rule for a particular case, a general statute thereafter enacted, though broad enough in its terms to be applicable to the case, will not, from that fact alone, alter the special rule (Williams v. Pritchard, 4 T.R., 2); though, if there be a general clause in the same statute with a special clause, the latter shall not restrain the signification of the former. (Andree v. Fletcher, 2 id., 164.) It is still more reasonable, that where there has been a general enactment covering the subject in general, in terms which include the particular case, and there is a subsequent enactment which makes a rule for that particular, that the latter shall be held to be all that the legislature, at last meant for the regulation of that case. We are of the opinion, therefore, that the act of 1848 provides the only penalty recoverable, as such, of trustees of a manufacturing company who have declared a dividend, the payment of which will reduce the amount of the capital stock; and that that act alone names the class of persons who may sue therefor.
It is urged that a corporation may maintain an action at common law, without the aid of statute, against the directors or trustees of it, for acts badly affecting its interests. It has been held that an action on the case will lie for such an act, if wrongful. (Frank. Ins. Co. v. Jenkins, 3 Wend., 130.) And a court of equity will interpose, if trustees have been guilty of willful abuse of the trust, or misapplication of the funds by which loss has come, or if waste or loss has been suffered by gross negligence and inattention to duties. (Robinson v.Smith, 3 Paige, 233.) But the findings of the referee do not furnish the basis of facts on which such an action will rest; and they do negative any fraud or fraudulent representations, and do affirm good faith on the part of the trustees. The plaintiffs asked for a finding as to negligence, but that was not within the issues raised by the pleadings, *Page 427 nor, as we can see, made a subject of litigation at the hearing. The plaintiffs except to the finding just above mentioned. There was testimony on both sides of that question.
It is urged that the defendants should have demurred for the want of capacity in the plaintiff to sue. The Code requires that defence to be raised by demurrer alone, when it appears on the face of the complaint. The complaint makes allegations of false representations and fraud. If these were true, there might be a legal capacity in the plaintiffs to sue, appearing on the face of the complaint. It is also urged that, as some defendants, in some action brought by these plaintiffs for a kindred cause of action (as alleged), did demur, and the issue of law was adjudged against them, and so remains, that the defendants here are bound by that adjudication. As these defendants had no part in that action, they cannot be estopped by it.
As the questions of law involved in the case must be held against the plaintiffs, it is needless to go into the questions of fact presented by the requests and refusals to find. Even if we should conclude that the refusals were erroneously made, and that the dividend complained of did reduce the capital, we see that the plaintiff may not maintain this action.
The judgment appealed from should be affirmed.
All concur.
Judgment affirmed.