(dissenting):
I am not able to concur with the view expressed by my brethren in this case. In my opinion the case is embraced in the language of the statute, which declares, with clearness and precision, what actions shall survive against personal representatives of deceased parties. (2 Stat. at Large [Edm. ed.], 46/T.)
The first section declares that for wrongs done to the property, rights or interest of another, for which an action may be brought against the wrong-doer, such action may be brought by the person injured, or after death, by his executors or administrators, against such wrong-doer, and after his death, against his executors or administrators, in the same manner and with like effect, in all respects, as actions founded upon contract. The language of this section seems to me, in itself, sufficiently perspicuous to make the intention of the legislature manifest, that all actions brought for wrongs done to the property, rights or interests of another, shall survive .against the personal representatives of the wrong-doer. The words of the statute: “ for wrongs done to the property, rights or interests of another, for which an action may be brought against the wi-ong-doer,” are extremely broad and comprehensive, and would embrace all classes of wrongs but for the exceptions of section 2. But when this section is read in connection with section 2 of the same statute, *213the meaning is made so clear by the exceptions in the second section, that all doubt seems to me to be removed. The second section reads as follows: But the preceding sections shall not extend to actions for slander, for libel, or to actions of assault and battery, or false imprisonment, nor to actions on the case for injuries done to the person of the plaintiff, or the person of the testator or intestate of any executor or administrator. By thus specifying the exceptions in the second section, the legislature have given great force to the language of the first. JExpressio unius est exelusio alterius is the maxim to be applied. The plaintiff sues as a creditor of the bank. The action is given, it is true, by statute, and in a certain sense is a penal one. Nevertheless, the legislature have provided, by the statute giving this right of action, a remedy based, I think, upon the conception that the omission to make and file the return is a wrong done to the rights and interests of creditors. It is a wrong to the creditors of the corporation to be deprived of the means which the legislature requires to be publicly furnished, of information as to the affairs of the company. The object in requiring this return was to enable creditors, by reference to public documents, more easily to take care of and provide for their own rights and interests; and the personal liability imposed by the act on trustees for neglecting to make and file such return, is upon the supposition, which the statute makes conclusive, that the creditors are, or may be, injured by such neglect of duty.
The official negligence restores the personal liability of the negligent officer as to debts for which he would have been personally liable but for the provisions of the charter wholly or partially excusing him. The recovery and collection of a debt in an action against a trustee, undoubtedly, so far as the creditor is concerned, extinguishes it against the corporation. It is not necessary to determine whether the defaulting trustee who is thus compelled to pay the debt owing by the corporation in such action, has any remedy or redress against the corporation or his fellow corporators. It is enough in this case to be able to say that a remedy for the collection of an existing indebtedness is conferred upon the creditors, against officers of the corporation whose negligence is conclusively supposed by the law, to be a cause of injury to the rights and *214interests of the creditors of the company; and it is upon this idea that this personal right of action is given to the creditors.
In my judgment the decision of the court below holding that the right of action survived was correct and should be affirmed.
DaNxbls, J., concurred in opinion of Beady, J.Order reversed, with costs.