delivered the opinion of the Court.*. The question is whether the defendants, executors of William Payne deceased, are liable under the facts stated, to the contribution which is claimed by the plaintiff.
It is not necessary to consider what would have been their liability if there had been an action commenced and prosecuted to final judgment by a creditor against the corporation, and a demand and neglect of payment by the corporation, and a levy on the property of the plaintiff as a member of the corporation, under the St. 1808, c. 65, § 6, because there have not been any such proceedings.
The plaintiff has volunteered in his payment of the debts due from the corporation, and claims to recover a contribution from the defendants upon the ground that it was a payment to remove a common burden, which should be sustained according to the interest or shares of individuals in the concern.
We are disposed to consider the case as if Payne were living and himself defending, and the plaintiff had paid the debt of the corporation, without a previous levy having been made upon him.
We are entirely satisfied that the plaintiff cannot recover. The liabilities of the individual members of the corporation are created by the statute ; and it is clear that at the common law the corporation only would be liable. The means must therefore have been resorted to, and a levy made upon the individual member before he could, without the consent of another member, pay, and compel that other to contribute. It is not sufficient that a joint liability existed sub modo. *491So it does in regard to the inhabitants of a town. It may happen that a creditor cannot obtain satisfaction from the treasurer, and the statute authorizes a proceeding against the individual inhabitants. But we think it very clear that one of the inhabitants could not volunteer, and make the payment for the town, and so cause the town to become his debtor without its consent. No person can compel another to become his debtor without his consent.
The case put by the counsel for the plaintiff, of the right to recover a contribution for goods thrown overboard for the preservation of the common property, cannot apply ; for the necessity calling for the sacrifice of the property occurred before the claim for contribution. Here the claim is made before the evidence of legal necessity.
But there is another view which would seem to us to be clear for the defendants. The parties or members of the corporation did not rely upon the remedy for contribution created by the law, but they made an agreement by indenture under seal, which should govern in this respect. It recites, that it was often necessary, in conducting the affairs of the corporation, that the notes of the company should be indorsed by one or more of the stockholders, and provides for a reimbursement proportionably, to each other, of such sums as they should in consequence of such indorsements be liable to pay. If there has been any payment for the corporation by the plaintiff, not occasioned by compulsive process under the statute, the remedy, we think, should be sought under the indenture. Modus et conventio vincunl legem.
We are for these reasons of opinion, that upon the facts stated, the plaintiff has not a legal right to recover in this action
Shaw C. J. did not sit in the cause