The principal question in the present case is, *48whether the lien acquired by Charles W. Holbrook, by virtue of his attachment of the goods of the Athol Manufacturing Company, had been lost or discharged, so that the avails of the said goods ought to have been applied on the execution of the plaintiff.
The first position assumed by the plaintiff is, that Holbrook, being a member of the corporation known by the name of the Athol Manufacturing Company, was, by virtue of the provisions of St. 1808, c. 65, § 6, personally liable for the payment and satisfaction of the execution of the plaintiff, by a levy of the same on the body or property of said Holbrook, inasmuch as the same had been, fourteen days previously, demanded of the treasurer of the corporation, and remained unpaid ; and that Holbrook being thus, in common with all the members of said company, liable for the debt to the plaintiff, the members of said company became virtually a mere joint stock association, and as such, no one of their number could properly prosecute a suit or levy an execution in his own favor upon the property of the company, to the prejudice of other creditors holding executions against the company.
We do not think this position can be maintained. „The cases of incorporated companies are wholly dissimilar to those of ordinary copartnerships, or joint stock, associations, as to the rights of individual members of the company to institute suits against the company. In the former, the individual members are entirely distinct from the artificial body endowed with corporate powers. The suit by Holbrook was, therefore, properly instituted and carried to a judgment. Nor do we see any reason why Holbrook, when he had thus acquired a lien for his private debt against the company, should be postponed for the benefit of a subsequent attaching creditor of the corporation. It is true that Holbrook was personally liable for the amount of the execution of Peirce, if Peirce had elected to levy it upon the personal or real estate of Holbrook. But in case of such levy, Holbrook would have had a claim for contribution upon all the other members of the company. But if the principle be applied, as insisted for the plaintiff, Holbrook will lose his security *49for his debt, to the amount of the execution of the plaintiff, and yet be deprived of his right to recur to his associates for remuneration ; as he cannot be said to have paid the debt to the plaintiff from his private property.
The second position taken by the plaintiff is this ; that Holbrook has, by the manner in which he has entered up judgment against the company for his debt, defeated his lien by attachment, as against subsequent attaching creditors.
In the matter of priority of liens among several attaching creditors, this court hold the parties to very strict rules in adjusting their respective claims to preferences. Hence it has been repeatedly held, that the introduction of any new cause of action, or the allowance of any amendment of the declaration, which may have enlarged the amount of damages recovered, operates to vacate the attachment. So also, a party having a claim clearly defined and well ascertained, for which he is entitled to take a judgment against his debtor, with a priority of lien by attachment, has no right to add to his just demand a sum clearly not due, and take a judgment for the whole. And such acts of the first attaching creditor vacate the whole attachment, as against subsequent attaching creditors ; that part of the judgment which was good being vitiated by that which is bad. Fairfield v. Baldwin, 12 Pick. 398.
The further inquiry then is, whether the judgment in favor of Holbrook is liable to the last mentioned objection. The facts stated in the report of the case show that the judgment was taken for the sum of $1852-22 ; that this judgment was rendered upon a default, and the damages assessed for su.ch sum as Holbrook, or those who acted" for him, elected to take. Did the amount of the judgment, thus taken, exceed the sum for which it should have been rendered, fixing the same by the well ascertained and stated account, as it existed between these parties ? The evidence seems to be very full and satisfactory upon this point. It is found in the testimony of Holbrook, in which he states, "that the goods he took of the company were to go towards his ser vices rendered to the company ; ” in the statement of the plain *50tiff’s claim at $ 1348, as borne on the list of debts shown by the plaintiff to the defendant, pending the suit against the company ; in the recital of the amount of the same in the negotiations be tween Holbrook and his assignees ; and also in the written promise of Mr. Brooks — all of which occurred before the rendition of the judgment in the case, and fix this demand at an amount much less than that for which judgment was taken.
This evidence seems to the court fully to establish the facts necessary to bring the case within the principle alluded to, and which was applied in the case of Fairfield v. Baldwin, before cited.
Nor does it vary the rule, or the effect of this evidence, that the various arrangements existed between Holbrook and Fish, Ward and Pond, and also with Mr. Brooks. It is true, in relation to Mr. Brooks, that the case finds that Holbrook did not communicate to him the fact above stated in his testimony. But from the other facts in the case, and the connexion of the assignees, as succeeding to the rights of Holbrook, we think they are all to be affected by the evidence disclosed in the case, showing that the judgment was taken for a sum greatly beyond the amount actually due from the company to Holbrook.
The effect of this was to vacate the attachment of Holbrook ; and that attachment being thus vacated, it was the duty of the defendant to apply the avails of the property sold by him under the seizure on these executions, to the discharge of the execution of the plaintiff. The defendant having refused so to do, he has subjected himself to the payment of damages to the plaintiff, to the amount of such execution.
An objection was suggested as to the right of the plaintiff, in cases like the present, to charge the officer, upon a notice and request to him not to appropriate the avails of the property sold ,0 another creditor, where the notice is general in its terms, and unaccompanied with any specification of the grounds of such notice. Whatever might be deemed necessary to charge the officer, under circumstances where the party required him to act upon such notice, upon his own personal liability, without offering him an indemnity ; in a case like the present, where such *51indemnity was offered by each party, and accepted from one of the parties, the objection cannot avail the defendant.
Judgment for the plaintiff.