This is an action of tort for the act of the defendant’s deputy, in taking the property of tne plaintiff upon an execution against the Ontonagon Copper Company.
An action was commenced against the corporation, and, under the St. of 1851, c. 315, certain stockholders of the company, and among others the plaintiff, were summoned in. No affidavit of defence having been filed, a default was entered against the corporation and against the present plaintiff. Nothing seems to have been done with regard to the other stockholders summoned, except that, annexed to the execution, we find a memorandum in writing, signed by the clerk of the court. The deputy of the defendant levied the execution upon the property of the plaintiff.
It appears, by the agreed statement of facts, that Charles Scudder, one of the persons summoned as stockholders in the suit against the corporation, was the president of the company when the cause of action accrued and when the judgment was rendered, and that .Isaac Hobbs, another of the persons so summoned, was at said times a director, and that each was the owner of property upon which the execution might have been levied.
It is not necessary to determine whether the certificate annexed to the execution was, in form or substance, a supersedeas; for it is plain that, if it is to have any effect, it is only as to the persons therein named, as stockholders, and that it cannot in any manner affect their liability as officers; for neither the revised statutes, nor the St. of 1851, c. 315, have made any provision for summoning in the officers of the corporation in a writ issued against the company. Thayer v. Union Tool Company, ante, 75.
The St. of 1829, c. 53, which for the first time made officers of the corporation liable for its debts, as officers, at the same time that it created the liability, determined the remedy, which was an action at law or bill in equity against the officers, setting forth the grounds upon which such officers had rendered themselves personally liable. The provisions of the St. of 1829, c. 53, are reenacted in the revised statutes.
*278The St. of 1851, c. 315, contains no provision for summoning the officers in a suit against the corporation. There is no evidence that the creditor in the suit against the Copper Company designed to summon in the officers of the corporation, or to charge them as such, or in any way to try the question of theil liability. The certificate, in terms, applies to those named in it as stockholders.
The question, therefore, which arises in this case and upon these facts is, whether, under the St. of 1851, c. 315, the property of stockholders can be taken at all while there are officers liable, and upon whose property the execution may be levied. This is to be determined upon the construction of the third section of that statute. The previous sections having provided that the property of the stockholders shall not be taken, unless they have been summoned in, and the question of their liability determined, the third section provides that, “upon any execution issued on any judgment recovered against any corporation, the stockholders whereof are liable for its debts or any part thereof, in which a demand has been made pursuant to law, and the said execution is not satisfied, the person or property of any officer of the said corporation at the time when the cause of action accrued, or when the said judgment was rendered, may be taken; and if no property of such officer can be found to satisfy the said execution, then the person or property of any stockholder may be taken thereon.”
Without assuming to determine, because such determination is not necessary, whether, under the St. of 1851, upon an execution against the corporation, the property of an officer of such corporation can be taken without a suit in law or equity against him, and without any previous summons or notice, as that of a stockholder might have been before the statute, it seems to us very clear that, where there are officers liable for the debt upon which the judgment was rendered, and having property which could be found to satisfy the execution, the property of the stockholders cannot be taken. That is to say, under the St. of 1851 the officers are first liable, and it is only upon failure to satisfy the execution from their property, that the judgment creditor *279can have recourse to the person or property of the stockholders. The language of the statute is clear and explicit: “ The person or property of any officer of the said corporation at the time when,” &c., “ may be taken ; and if no property of such officer can be found to satisfy the execution, then the person or property of any stockholder may be taken.” It- is only in the want of property of the corporation and of its officers, that resort is to be had to the persons or property of the stockholders. It being agreed that Scudder and Hobbs were officers of the Ontonagon Copper Company when the debt accrued, and when the judgment was rendered, the result is that the property of Denny could not be lawfully taken to satisfy said execution.
In looking at the statutes and cases cited by the learned counsel for the plaintiff, we can see no solid ground for the suggestion that the St. of 1851, c. 315, is not applicable to corporations created under the provisions of c. 38 of the revised statutes, and is not applicable therefore to the case at bar. The language of the statute is general and comprehensive, and includes all manufacturing corporations. See §§ 1, 3.
It is suggested that the officer is justified by his execution. If the officer had been requested to levy the execution upon the property of any of the stockholders named in the certificate annexed to the execution, and had refused so to do, he might possibly have found his justification in such certificate. He would at least have been in a position to have raised the question. But upon this other question, whether Scudder and Hobbs were liable, as officers, for the debts of the corporation, he would not find in the certificate, or in the record of the cause, light or protection.
Judgment for the plaintiff-