This is an appeal by the plaintiff from a judgment herein in favor of the defendant, after a trial at the Circuit, at which the court directed a verdict in favor of the defendant. To recover, the plaintiff was compelled to establish a debt against the New York and South American Gold Mining company. The evidence wholly failed to establish such debt; on the contrary, showed that the bonds in question were a gratuity to Whetmore — and lienee had no inception in the sense required to constitute a debt against the company, so as to justify a recovery in this action.
The statute of 1848 (chapter 40, section 12), under which this action is brought, provides as follows: “All the trustees of the company shall be jointly and severally liable for all the debts of the compa/mj then existing, and for all that shall be contracted before such report shall be made.”
The failure of the plaintiff to establish a debt against the company was fatal to a right to recover in the action, and justified the decision of the court. (The Shaler and Hall Quarry Company v. Bliss, 27 N. Y., 297; Chambers v. Lewis, 28 id., 454; Adams v. Mills, 60 id., 533 ; same case, 38 Superior Court Rep., 16.) This defect in the plaintiff’s case renders the examination of the other questions, at length, unnecessary, as they become unimportant so far as the result is concerned. We have, however, examined the several exceptions so far as to become satisfied that no material error was committed by the court.
The judgment must be affirmed with costs.
Davis, P. J., concurred. Present — Davis, P. J., and Ingalls, J.Judgment affirmed with costs.