dissented and delivered the following opinion in which Boyd and Schmucker, JJ., concurred:
The bill in this case was filed by the receivers of an insolvent corporation against some of the persons who had been its directors, to recover from them certain large sums of money alleged to have been wasted and lost by the negligence and *279illegal conduct of several boards of directors. The charges of the bill will be alluded to later on.
Speaking with reference to the case made by the bill, if there was no illegality in the loans mentioned in the complaint, there is no liability under sec. 69, Art. 23 of the Code. If these loans were lawful there is no liability at all unless the directors who made them or sanctioned them were negligent in making them or in suffering them to be made. The liability prescribed by sec. 69 is not that which the bill seeks to enforce, and the question of illegality is only incidentally involved as tending to reflect on the question of negligence. If the loans were illegally made and no loss had ensued, no liability would have been incurred. If the loans were legal and loss followed because of negligence in making them or in suffering them to be made, then those persons who negligently made them or sanctioned them after they had been negligently made, or negligently suffered them to be made would be liable and could be required to restore the sums which they had by their negligence caused the company to lose.
There ought to be no dispute about the substantive law of this case. If directors of a corporation make loans in violation of sec. 69 they are declared to be liable, not merely for the sums lost by such loans, but for the debts then due by the corporation to the extent of double the amount of the loans. If they negligently invest the money of the corporation or suffer it to be negligently invested, they are liable for their negligence if that occasions a loss. But who are liable ? Is a director liable simply because he is a director; or is he liable because he has done something prohibited, or negligently done something not prohibited or sanctioned the doing of the one or the other ? Obviously to be liable at all he must do something he ought not to do, or he must omit to do something he should do. It is, therefore, from his acts or his omissions that his liability arises. His omissions to be a ground of liability must be his own and not some other person’s omissions, though the act of another, in that it is not prevented when it could have been prevented, may be the occasion of his omis*280sion. His sanction of a negligent act would be his affirmative act of commission. In no way is he liable except for what he himself does or omits to do, or for what he sanctions when done by others, or for what by his negligence he permits others to do. In any of these contingencies it is apparent that his liability is referable, in some form, to his own conduct.
Now, with what are the defendants in this case charged ? If they are liable in this proceeding at all it is for things they have done or sanctioned or omitted to do ; and not for wrongful or negligent acts which other persons may have done without the participation of the defendants in some form, or without their sanction. This inquiry to be answered requires that an analysis of the bill of complaint be made, because the controversy as presented is on a demurrer to the bill, and that demurrer challenges the legal sufficiency of the bill’s averments. If these averments contain no specific charge against these defendants — if these defendants are not charged with something for which the bill on its face makes it appear they are, in law, liable — they are under no obligation to answer and by an answer to set up exculpatory facts, because it is a fundamental principle applicable without exception to every form of judicial proceeding in jurisdictions where the common law is recognized, that no man can be required to answer until he is specifically charged with something. Vague, indefinite or argumentative averments demand no reply. This bill affords a striking illustration of the wisdom of the rule just stated, because every allegation it contains may be conceded to be true, and yet not one of the defendants may be liable to the plaintiffs.
The bill was filed by the receivers of The American Casualty Insurance and Security Company — an insolvent corporation — against six persons who at different times had been directors of the company. The bill contains 23 paragraphs. It seeks to hold these six persons liable for losses sustained by the corporation by reason of the bankruptcy of sundry individuals to whom certain of its money had been loaned. Some of these loans had been made before any of the defendants became directors, some were made before tivo of the six *281were elected and some after two of them ceased to be directors. The corporation was formed on January 10, 1890, under the general corporation laws of Maryland. The certificate of incorporation provided that there should be eleven directors, but also contained a clause which permitted an increase in this number. Not one of the defendants was amongst the eleven designated in the certificate, nor was any one of them included in the number chosen in January, 1891. In December, 1890, and in January and April, 1891, loans aggregate something over thirty-seven thousand dollars were made to the president, who was a stockholder, by the finance committee with, as is alleged, the subsequent sanction of the board of directors. In May following these loans were declared by the executive committee to be investments of the funds of the is corporation not in accordance with the laws of Maryland, but clearly and positively prohibited by sec. 69, Art. 23 of the Code. This section is set forth in the margin.* The protest of the executive committee was not heeded and five of the eleven directors resigned on July 28, 1891, and on the same day Messrs. Knott, Abell and Littig, three of the defendants, were elected, and on October 27th, Messrs. McDonald and Parr, two of the defendants, were elected; but there is no averment whatever that any of these five thus elected to fill the places of those who had resigned, accepted the position or entered upon the discharge of the duties thereof for the year 1891.
By the 16th paragraph of the bill it is alleged that additional loans were made in disregard of the laws of Maryland and the terms of the company’s charter, between August 10, 1891, and December 5, 1891, to the amount of $557,928.33 ; *282and it is further alleged that these loans were made by the finance committee “with the sanction and approval of the board of directors.” There is no averment, however, either in express terms or by implication, that any of the defendants— three of whom had been elected in July, two of whom had been elected in October and one of whom had not yet been elected at all — were then acting as directors or had accepted that position. Without the co-operation of the five defendants who were chosen in 1891, but who are not alleged to have accepted the position until after the stockholders meeting in January, 1892, there was a majority of the board competent .to act and to sanction these loans and that majority did in fact act when the protest of the executive committee was disregarded in May, 1891. In June, 1892, the number of directors was increased to thirteen and two persons, not defendants in this case were chosen, and “thereupon,” says the fourteenth paragraph of the bill, “ accepted their said election and assumed and professed to discharge the duties of their said office.” In January, 1893, the number of directors was increased to fifteen and Mr. Jackson, one of the defendants, was for the first time selected and Messrs. Abell and McDonald were dropped. Of these fifteen directors four of the six defendants formed part, and it is alleged in the fifteenth paragraph of the bill that “ all of these persons so chosen at the said last mentioned meeting (that is in January, 1893), accepted their said elections and assumed and thereafter professed to discharge the duties of their said offices.”
It is alleged by the nineteenth paragraph of the bill that after the stockholders meeting of January, 1893, the corporation, through its finance committee, with the assent of the board of directors, made other loans in violation pf the laws of Maryland, the terms of its charter and the duty of its directors whereby at least the sum of $293,694.52 was lost.
By the twentieth paragraph it is averred that all these loans antecedently spoken of constituted unreasonable hazardous and insufficiently secured investments of the company’s funds ; and “ the facts relating thereto and establishing the impropriety *283in a commercial sense thereof could have been ascertained by all of its hereinbefore mentioned directors by the exercise of such reasonable vigilance and activity as were imperatively demanded of them by their obvious obligations as such directors.” It is alleged in the twenty-first paragraph that by reason of the unbusinesslike and unfaithful management of the affairs of the corporation “by its successive boards of directors” the corporation became hopelessly and notoriously insolvent, and receivers were appointed under a bill filed in November, 1893. Paragraph twenty-three is set out in the margin.*
When reduced to their final analysis the various paragraphs of the bill assign three grounds upon which the defendants are alleged to be liable, and these are : First, that the loans were prohibited by sec. 69, Art. 23 of the Code; secondly, that no exposure of this illegality was made by any of the officers or directors though every member of the board had constructive, if not actual notice from the records of the corporation of this alleged illegality and these breaches of duty “ on the part of *284such of the former directors as were then re-elected and as had been guilty thereof; ” and thirdly, that the loans made by the finance committee with the sanction of the board of directors were negligently made. This latter ground may be strictly true without a single one of the defendants being answerable. And this is so, because there is not an allegation or the semblance of an allegation in the bill connecting a single defendant with anything done or anything left undone which ought to have been done by him whereby the loss occurred. I will consider these three grounds in the inverse order of their statement. But first, it maybe well to bear in mind that there, are three classes of claims for which all the defendants are sought to be made answerable, and these are, first, losses which arose on loans made before they became directors ; second, losses which arose on loans made whilst some of them were directors, and third, losses which arose on loans made after some of them had ceased to be directors.
I have said it may be strictly true that loans were negligently made by the finance committee with the sanction of the board of directors, and yet that not one of the defendants would be liable under the averments of the bill. Liability, if founded on negligence, must have its origin in some act of negligent commission or negligent omission of the person proceeded against. Now the bill may be searched from beginning to end and not even an intimation, much less not a specific charge, will be found alleging that any one of these six defendants ever voted for these loans or by any affirmative act ever sanctioned them. It may be closely studied throughout and not a charge will be discovered that any one of these six defendants had the slightest actual knowledge that the loans had been made. There is, it is true, an alternative allegation in the 18th paragraph, that every member of the board had constructive if not actual notice of the illegality of the loans. I am not dealing with that question now, but with the averment that the loans were negligently made and that that negligence was sanctioned by the board. There is, then, as to these defendants, no direct charge that they or any of them either made the *285loans or sanctioned the making of them. As their liability, if liable at all, does not arise from the mere fact of their being directors — as it is dependent upon personal conduct in the office of director — and as the averments relate to the board of directors and not to particular members of that board; there is obviously no charge of any affirmative act of commission by the defendants, unless the allegation that these loans were made with the sanction of the board of directors is the equivalent of an assertion that they were made with the sanction of the defendants. There might be some reason for such an assumption if the six defendants had constituted the whole board of directors ; but when the bill shows on its face that the very first alleged improper loan was made with the sanction of the board of directors at a time when not one of the defendants was a member of the board, the term board of directors as used throughout the bill cannot be treated as synonymous with defendants. At no time did these defendants ever constitute a majority of the board of directors. It is, therefore, quite possible that every averment which charges that the loans were made with the sanction of the board of directors is perfectly consistent with the hypothesis that they were not made with the sanction of the defendants ; and this possibility becomes a certainty when it is borne in mind that there is no pretence that the defendants ever knew of the existence of the loans. To sue a minority of a board of directors for a liability which, if it exists at all, exists because of the conduct of the individuals themselves ; and in that suit to hold them accountable, not upon an averment that they did the acts which form the basis of the liability, but to hold them upon an allegation that a board of which they were the minority did these acts, is to say they are liable, not for what they did but for what the board of which they formed only a small part had done, unless they show by way of defense that they are not liable — a doctrine which inverts the plainest precepts of pleading. Confessedly, the liability of the director is individual and not collective, but you make a collective charge, though sueing only a minority, and you say that such a charge is suf*286ficient to require the particular persons you have singled out as defendants, to show that they do not come within the scope of your general averment. No precedent can be found for such a course. Why should the plaintiffs be relieved from the duty to make a distinct and definite allegation against the defendants ? If it be true that these defendants did participate in making or sanctioning the loans which are asserted to be illegal or wrongful or negligent, why ought not the plaintiffs to say so? If the defendants did not participate in these transactions why should the plaintiffs be allowed under a vague and indefinite averment, at least as consistent with the non-participation of the defendants as with their participation, to force them into a defense when at best but an argumentative or a conjectural charge has been made against them ? No case has been cited and none can be found where such a bill as this has been sustained.
In addition to what has been said, the bill itself by a distinct allegation shows that all its averments are just as consistent with the hypothesis that the defendants are not liable as with the assumption that they are responsible, for the fourth paragraph alleges that the certificate of incorporation of the Casualty Company declared that “The by-laws of this company may provide that less than a majority of the board may constitute a quorum.” Here, then, is an unequivocal assertion that less than the whole board and even less than a majority of the board constituted a quorum of the board, and a quorum of the board was authorized to act as the board. So on the face of the bill it is clear that acts done by the board of directors may have been acts done by a mere minority of the whole board, and still those acts would have been the acts of the board, though not a single one of the defendants had participated in them. How, then, can it be said, when you allege that a loan was sanctioned by the board, that such an allegation means that the loan had been sanctioned by the whole board or by any particular members of the board or by the defendants, since you yourself show by this provision of the charter that a minority could have sanctioned the act and *287the sanction thus given could be accurately described as the sanction of the board ? If, under this provision of the certificate of incorporation, it be true that all the acts alleged in the bill could have been done by less tíhan the whole board or by less than a majority, it is obvious they could have been done without the aid, co-operation or participation of any of the defendants ; and if the defendants are not charged with having been concerned in them, is not the bill essentially defective ? How can you, under any known rule of pleading, hold the defendants for that with which they have not been charged ?
If this record goes back to the lower Court and the defendants answer and deny every allegation of the bill, what will the plaintiffs be required to prove before a liability can be fastened on any one of these six defendants ? Will they not have to show that the defendants did something or omitted to do something before the defendants can be held liable ? This cannot be doubted for a moment. If it should be shown that the board of directors other than these defendants did the negligent or the illegal acts alleged; or that the board other than these defendants sanctioned these acts, can it be pretended the defendants would be responsible ? If they can only be held accountable when proved to be guilty of negligence or illegal conduct, does not the rule of pleading imperatively require that they shall be charged with what is intended to be proved? Should the case be brought here on the state of facts just above suggested — that the acts had been done by the board other than the defendants — would not this Court be compelled to say that the term “board of directors,” or “’directors,” as used in the bill of complaint, did not include the defendants ? If so, it is obvious that the same term does not necessarily now include the defendants. It must be remembered that the question before the Court upon the demurrer is purely a question of pleading, involving only the sufficiency of the bill’s averments. The demurrer admits that everyone of these loans was made with the saction and approval of the board of directors as alleged in the bill, and you insist that such an averment is sufficient to include the defendants and to charge *288them with having sanctioned and approved the loans. Suppose after answers filed the evidence adduced should show that each loan had been sanctioned and approved by a resolution adopted by a majority of the board of directors. There could be no more formal sanction than that. But suppose it also appeared that each defendant voted and protested against each loan. Would you say they could then be held under the averments of the bill ? If you say no, then you must also say that though it is true the loans were sanctioned and approved by the board of directors, the defendants did not approve them, and therefore the charge that the board sanctioned the loans does not imply that the defendants sanctioned them. You are then driven to admit that the terms used in the bill may be and are true without the defendants being liable, and when you acquit them of liability you confess that your first position, viz., that the term “board of directors” did include them is incorrect, as it does not include them.
What is the legal consequence of overruling a demurrer to a bill in equity? Does not the Court say in effect to the plaintiff, if you prove the facts set out in your bill as you have alleged them you will be entitled to the relief you seek against the defendant? Undoubtedly this is so. Now, the plaintiff does prove the facts alleged as alleged, viz., that the loans were negligently made and were sanctioned by the board of directors, or by the directors, but it is shown at the same time that the defendants, who constitute a minority of the board, protested against the loans. The plaintiff could not then get relief against the defendants because though the facts are true as alleged, that is, though it is true the loans were made with the sanction of the board of directors or with the sanction of the directors, those facts make no case against the defendants. This is perfectly obvious. But the defendants would not be exculpated because the allegations of the bill were untrue. They would be exculpated notwithstanding the allegations of the bill were true. If they can be exculpated notwithstanding the allegations of the bill are true, then the allegations of the bill may be true — the loans may have been negligently made *289and may have been sanctioned by the board or by the directors — and yet the defendants would not be liable, unless they are to be held liable in spite of their protest against the loans; being made. Is not that tantamount to saying that the averments of the bill do not make out a case against the defendants? If so it would be error to overrule the demurrer, because by overruling the demurrer you assert that the averments are sufficient. This is not a case where the averments are sufficient until disproved. It is a case where there may be no> liability even though the averments are proved. It is the failure to negative this contingency by distinctly charging the defendants with negligence or misconduct that, makes the bill! defective. And the bill is obviously defective if its averments, may be true as made without the defendants being liable at alL
The rule of pleading is stated in Mitford’s Eq. Pl., mar. pg. 41, in these words: “Whatever is essential to the rights of the plaintiff and is necessarily within his knowledge, ought to be alleged positively and with precision.” And in a note to 6th American edition it is said: “In setting forth such right and title (that is, of the plaintiff) the governing principle is that so much certainty must pervade the statement as to prevent the defendant from being taken by surprise. He must be permitted to know explicitly what the complaint against: him is, and not be compelled to guess it under the form of a: general charge. There must be such a specification as wilE enable him to meet the alleged fact by a direct issue andl thereby countervail the general charge. But after alleging sudfj specific act or fact the plaintiff need not set forth numerous circumstances merely going to make out or corroborate such specification.” Pleadings in chancery should consist of averments or allegations of fact and not of inference and argument. Chambers v. Chambers, 4 G. & J. 420; Story, Eq. Pl., secs. 27 and 257.
In the leading case of Booth v. Robinson, 55 Md. 419, the rule as to the certainty of the allegations against a director of a corporation was distinctly announced. Upon reference to the original record in that case it will be found that the bill *290contained the following averments : “ Your orators charge that each and all of said actings and doings on the part of said Moncure Robinson, John M. Robinson, Samuel M. Shoemaker, Thomas Kelso and the Baltimore Steam Packet Company and their confederates (to your orators at present unknown, but whom they pray to be permitted to make parties defendant when discovered) were purposely done in utter disregard of their fiduciary relations as directors and as shareholders of said Powhatan Steamboat Company * * * * and that each and all of said confederates are severally and jointly liable to your orators for the consequences resulting from such wrongs and injuries, &c.” In the opinion of the Court on page 441 where the conduct of two of the defendants, who' were directors in both the Steam Packet Company and the Powhatan Company, was under discussion, it is said: “They,” these two directors, “ were the chosen agents of both ” companies ; “ and to be successful in any attempt to impeach the validity of their acts, with a view of making them personally responsible, either to the corporation or to the stockholders, there must be distinct charges of misconduct, fully supported by proof.” And the following cases are cited: -Adams Mining Com. v. Senter, 26 Mich. 73; U. S. Rolling Stock Co. v. A. & G. W. R. Co., 34 Ohio St. 450.
In Wilkinson v. Dodd, 40 N. J. Eq. 123, a case much relied on in the argument and in the briefs, a bill was filed by the receiver of the Newark Savings Institution against all the managers of that institution and against the executors of a person who had been a manager. The proceeding was instituted to recover from the defendants the losses which resulted from the illegal use of the securities and of the moneys of the institution by the managers. There was a demurrer interposed on this ground amongst others, that the bill charged the defendants as a body with acts of negligence in all of which each of them could not have participated. It was in answer to this position that the language relied on by the appellants was used, viz. “ It is only after answers and evidence and on the final hearing that the connection of the several defendants *291with the transactions in question and the measure of the responsibility of each defendant can be ascertained and established.” But that case presented a situation widely different from the one now in hand. Where a whole board is sued, an allegation against all is necessarily an allegation against each member of the board ; but where only a minority of a board is sued, an allegation against the board, but not against the whole board, does not necessarily include the persons sued ; because the act complained of may be the act of the board by being the act of the majority, without involving a single one of the minority who have been sued. When a director is sued “his co-operation,” said the Court in Van Dyke v. McQuade, 86 N. Y. 52, “ must be affirmatively shown.” Accordingly in Sammon v. Richardson, 30 Conn. 360, which was an action on the case against directors of an insurance company, the declaration averred “ that the said directors, the defendants, for the purpose of giving the company a fictitious credit * * * did falsely and fraudulently represent, &c.”
In Spering's Appeal, 71 Penn. St. 11, a bill was filed by Joshua Spering, assignee of the National Safety Insurance and Trust Company, against sixteen persons who had been at different times directors of the company and against the administrators of two other persons, then deceased, who had also been directors. The bill as originally filed contained general allegations, but by amendments, it was finally charged that the defendants, during their respective terms of office, had entire control of the affairs of the company; that the frauds charged continued from 1854 until April 8th, 1861, and that each defendant participated in them, or by negligence permitted and encouraged them. Upon this state of the pleadings the Court proceeded to inquire into the question of the liability of the directors and laid down the principles previously announced by Lord Hardwicke in Charitable Corp. v. Sutton, 2 Atk. 400, and subsequently adopted and followed by this Court in Booth v. Robinson, supra. In Spering's Appeal there were what this Court in Booth v. Robinson said there ought to be, “ distinct charges of misconduct;” and distinct charges against the defendants.
*292In the case of Fisher et al. Receivers, v. Graves, 80 Fed. R. 590, the precise averments of the bill in this case were held to be insufficient to charge Henry W. Slocum, one of the original directors in this same Casualty Company, with actionable negligence, because those averments merely charged “ neglect by the directors, without mentioning him.”
The allegations thus far considered are clearly insufficient to implicate the defendants ; and the only other averment of an affirmative act is that which is contained in the seventeenth paragraph of the bill. That paragraph alleges that a pretended settlement was made on December 30th, 1892, of the antecedent loans ; that a colorable and simulated repayment of those loans was apparently made by the several debtors by and with the connivance and through the procurement of “ divers — among the officers and directors of said corporation,” &c. Who were, the officers and who were the directors that made this settlement ? Does the allegation that “ divers— among the officers and directors ” made this settlement mean that the defendants made it ? Certain it is that not one of the defendants is charged by name or description with being involved therein. Are they bound to deny when there is no accusation ? Obviously not.
What has been said in regard to alleged affirmative acts, acts of commission as I have designated them, is alike applicable to the theory of liability founded on imputed negligent omission to act. The eighteenth and twenty-third paragraphs of the bill are constructed on this theory. It is not charged anywere that a single one of the defendants negligently omitted to attend a meeting of the board of directors, whereby the loans which resulted disastrously were permitted to be made; nor that any one of them negligently omitted to do any act, which omission produced the loss. .Indeed the framer of the bill seems to have studiously avoided making any charge against the defendants, but has levelled them all at the various boards of directors, though the liability, if any exists, is not a liability of the board, but is a personal liability of the individuals who were members of the board, and who, being mem*293bers, omitted to do what it was their duty to do. Who were the individuals that omitted to do what they ought to have done ? And what were the things which they left undone, but ought to have done? First, according to paragraph eighteen ‘■‘no protest against and no exposure of” “the gross and obvious illegality of the investments” was made “by any of the officers or directors ” until long after the annual meeting held on January the tenth, 1893. Secondly, according to the twenty-third paragraph, because these loans were made “ without such due and reasonable regard to its interest as an ordinarily prudent and careful man would have shown in the conscientious discharge of his duties as director ” of the corporation ; and as to such among the defendants “ as ceased to be directors before some or any of the said loans or investments so resulting disastrously to the corporation had been made,” it is averred that they failed to make a full disclosure of the facts relating to previous loans, called previous breaches of duty, “ which facts were either known to the said retiring directors or could have been, and would have been ascertained by them had they made ” an ordinarily diligent enquiry into the management and affairs of the corporation. If the loans alluded to in the 18th paragraph were not illegal then a failure to protest against or expose their illegality was no omission of duty. The allegation that every member of the board had constructive if not actual notice from the records of the corporation of the illegality of the investments, is not an allegation that any member of the board had actual notice either of the existence or of the illegality of these loans. It is simply a charge that they all had constructive notice of what the books of the corporation disclosed as to the illegality of the loans, and consequently such constructive notice of the existence of the loans as would be involved in constructive notice of their illegality. This question of illegality will be discussed later on. One other act of omission, set out in the 23rd paragraph, but not in terms imputed to the defendants is, broadly, inattention — the'lack of that attention in the discharge of the duties of a director which a prudent and careful man would have *294shown; and as respects the retiring directors their failure to disclose what they knew or could have known about other directors’ alleged breaches of duty. Now, there is not a single averment that any of these alleged acts of omission set out in either of the two paragraphs under consideration, caused a cent of loss to the corporation. It is alleged that the defendants are responsible to the corporation and to the receivers “ for all losses incurred by ” the company, but not because the losses were incurred by these omissions of the defendants.
This branch of the case is completely settled by the opinion in Briggs, Receiver, v. Spaulding et al, 141 U. S. 132. That was a case where the receiver of a bank filed a bill against all the directors claiming to recover large sums of money which the bank had lost by reason of the negligent inattention of the directors and by their failure and omission to properly discharge their duties. The bill, amongst other things, alleged that the losses and the consequent failure of the bank were due to the misconduct of the officers and directors of the bank, and to the failure of the directors to perform faithfully and diligently the duties of their office; that by reason of the nature of their office and of the principles of the common law and under the provisions of the Revised Statutes of the United States, the directors were bound diligently, carefully and honestly to administer the affairs of the bank, to employ none but honest and competent persons to serve as officers ; to keep correct books of account and to see that the business was prudently conducted, and that the property and effects of the bank were not wasted, stolen or squandered. It was then charged that the directors utterly failed to perform each and every of their official duties and paid no attention to the affairs of the bank ; that they failed to hold or to call meetings, or to appoint any committees of examination, or to make personal examinations into the conduct and management of its affairs and into the condition of its accounts. It was further charged that all of the illegal acts of the president in effecting loans prohibited by law appeared on the books and might have been discovered by the directors by a proper examination, and that it was owing *295to their negligence and inattention to duty that the president, was permitted to continue in office and to continue his mismanagement of the bank’s affairs until it had become insolvent. Mr. Chief Justice Fuller in delivering the opinion of the Supreme Court states the object and ground of the controversy in this way : “ In the language of the appellant’s counsel the bill was framed upon a theory of a breach by the defendants as directors ‘of their common-law duties as trustees of a financial corporation and of breaches of special restrictions and obligations of the National Banking Act’ ” After narrating many of the facts, he says : “ The theory of this bill is that the defendants are liable, not to stockholders nor to creditors, as such, but to the bank, for losses alleged to have occurred during their period of office, because of their inattention.” Proceeding, the opinion declares that “ no one of the defendants is charged with the misappropriation or misapplication of, or interference with, any property of the bank, nor with carelessness in respect to any particular property, but with the omission of duty, which, if performed, would have prevented certain specified losses in respect of which complainant, seeks to charge them. ***** Treated as a cause of action in favor of the corporation, a liability of this kind should not lightly be imposed in the absence of any element of positive misfeasance, and solely upon the ground of passive negligence, and it must be made to appear that the losses for which defendants are required to respond were the natural and necessary consequences of omissions on their part. * * * * Nor is knowledge of what the books and papers would have shown to be imputed. In Wakeman v. Dalley, 51 N. Y. 32, Judge Earle observed in relation to Dailey, sought to be charged for false representations in the circular of a company of which he was one of the directors. ‘ He was simply a director and as such attended some of . the meetings of the board of directors. As he was a director, must we impute to him, for the purpose of charging him with fraud, a knowledge of all the affairs of the company? If the law requires this, then the position of a director in any large corporation, *296like a railroad, or banking or insurance company, is one of •constant peril. * * * If the directors when actually cognizant of no fraud, are to be made liable in an action of fraud for any error or misstatement in such statements or reports, then we have a rule by which every director is made liable for any fraud that may be committed upon the company in the abstraction of its assets and diminution of its capital by any of its agents, and he becomes substantially an insurer of their fidelity. It has not been generally understood that such a responsibility rested upon directors of corporations, and I know •of no principle of law or rule of public policy which requires ;that it should.’ ” With these principles in view it is obvious that the allegations of the eighteenth and twenty-third paragraphs of the bill are wholly insufficient to implicate the •defendants in any’way, or to fasten on them any responsibility whatever.
The averments of the 20th paragraph furnish no ground upon which the defendants can be held bound to answer. The allegation is that all the directors could have ascertained the facts relating to the loans and establishing the impropriety of them in a commercial sense, if ordinary vigilance and diligence had been exercised. The implication relied on is that the directors did not ascertain facts which they ought to have ascertained with regard to these loans ; and the conclusion suggested from that implication is that .the defendants are liable because these facts were not ascertained. This if true would not make the defendants answerable. It is not alleged that they did not ascertain what they ought to have ascertained, or that having ascertained the facts they ignored them. The case of Briggs v. Spaulding et al., supra, fully answers this paragraph.
The remaining ground of liability yet to be considered is that which alleges that the loans were illegal. If illegal they were illegal solely because within the prohibition of sec. 69, Art. 23 of the Code; but if the corporation was one of those described in the proviso to that section, viz., a building association, or an association for the loan of money on real or *297personal property, ora savings institution, then the prohibition was not applicable. It is clear that the Casualty Company, which was incorporated under the general law, possessed the powers which were conferred by sec. 113 of Art. 23 of the Code; and the question is whether it was such an association for the loan of money on real or personal property as the proviso to sec. 69 exempts from the operation of the prohibition of that section. Now, sec. 113 enacts that “ any corporation incorporated under this article for insurance purposes, except for the insurance of the lives of persons, is hereby authorized to include in its certificate of incorporation as among other objects and purposes for which said corporation is formed, the following, that is to say * * * * receive on storage merchandise * * * * and to advance money, securities and credits upon any property, real, personal or mixed on such terms and with all such powers of sale and other disposition thereof as shall be established by the charter, &c., &c.”
Amongst the purposes included in the Casualty Company’s certificate were those named in sec. 113 — the precise language of the statute having been incorporated in the certificate; But it is objected that the Casualty Company was incorporated “ for the insurance of the lives of persons,” and therefore could not include in its powers the things authorized by sec. 113, and consequently that it did not come within the proviso to sec. 69, as an association for the loan of money on real or personal property; and further that the proviso to sec. 69 has relation only to corporations the design of whose creation was to loan money to its stockholders.
The Casualty Company was authorized to issue a great variety of insurance and indemnity policies; but there is no provision anywhere in its certificate of incorporation permitting it to do a life-insurance business or to grant “insurance of the lives of persons.” It had authority to make all the insurance connected with marine risks, the risks of transportation of freight, persons and passengers, and the risks of inland navigation; as well as to guarantee employers against claims for damages arising out of injuries to or deaths of em*298ployees and occasioned by the negligence of employers. In none of these instances was the life of a particular person insured, but the common carrier or the employer was afforded an indemnity in the event of his being obliged to respond in damages for a death attributable to his negligence. That was not an insurance of the lives of persons within the meaning of sec. 113; and if the company undertook to issue what was strictly a life-insurance policy it simply exceeded its charter powers.
It is obvious that the proviso to sec. 69 will not bear a construction which restricts the application of that proviso to corporations " created for the express purpose of lending money to its stockholders. The corporations excepted from the prohibition are building or homestead associations, any association for the loan of money on real or personal property, any savings institution, and now by the Act of 1898, ch. 228, any corporation receiving money on deposit or authorized by its charter to receive money on deposit. If all the excepted corporations do not belong to a class expressly created for the purpose of lending money to stockholders, it cannot be affirmed of the proviso that its design was to include that class only. This is self-evident. Now, whatever may be said of building or homestead associations it cannot be pretended that the design of the creation of a savings institution is to lend money to its stockholders only. The recent amendment of sec. 69 by the Act of 1898, ch. 228, so as to include in the proviso any corporation receiving money on deposit or authorized to receive money on deposit, demonstrates that it never was the intention of the Legislature to restrict this proviso to the narrow limits which an exclusion of all corporations save those created for the purpose of lending to their stockholders would establish. A corporation which under the terms of its charter and under the provisions of sec. iij is expressly empowered to advance money upon any property, real, personal or mixed, as the Casualty Company indisputably was, is an association for the loan of money on real or personal property, unless an advance of money on real or personal property is *299essentially different from a loan of money on the same property. But to say that an authority to advance money on property is not an authority to loan money on property is to make a distinction where there is no difference; and there is no difference because the one term is, as used in sec. 113, simply the synonym of the other as used in sec. 69. And this is the construction which Judge Morris adopted in the case of Bost. & Alb. Ry. Co. v. Parr, in the Circuit Court of the United States for the District of Maryland. Judge Morris sustained a demurrer to the bill and his decree was affirmed by the United States Circuit Court of Appeals, Fourth Circuit, on the ground that the averments of the bill were insufficient.
As previously stated there are three distinct classes of losses mentioned in the bill of complaint. Some of the losses occurred when none of the defendants were directors, others happened when some of the defendants were directors, and the remaining ones took place after two of the defendants had ceased to be directors. A part of the relief prayed is “that the amount of loss suffered by the said corporation by reason of the matters and things in this bill of complaint set forth may be ascertained ***** and that the said several respondents may duly account therefor to and with the complainants and pay to them, as such receivers as aforesaid, the full amount of said loss, so suffered, &c.” Can such relief be granted ? This question has been distinctly answered in the negative by the Court of Appeals of New York in several instances. If these defendants are resposible at all they are responsible not for the same but for different losses. It is obvious that they are not answerable for any loss sustained before they became directors, and it is equally obvious that losses which occurred after any of them ceased to be directors and which occurred by reason of the misconduct of directors other than those who had retired, cannot be charged to the defendants who had retired before the loans were made which resulted in losses. Assuming that each of these defendants is liable for some of the losses, there is no principle upon which any of them can be held for the losses that took place before *300they became directors ; and yet the bill seeks to recover from all of them the amount of these antecedent losses. Assuming that all of them with the exception of Mr. Jackson, are liable for the losses which befell the company between January, 1892 and January, 1893 ; yet the bill seeks to hold Mr. Jackson for those losses, though he did not become a director till January, 1893. And assuming that all of the defendants except Mr. Abell and Mr. McDonald are liable for the losses occurring after January, 1893, still the bill endeavors to hold those two along with the other four for the losses which occurred by reason of loans made after Messrs. Abell and McDonald had retired. Precisely this situation was presented in Dykmau v. Keeney, 154 N. Y. 483. In that case a proceeding in equity was instituted by the receiver of the Commercial bank against certain persons who either had been directors of the bank or who were the personal representatives of deceased directors. The Complaint alleged that these directors were such between April, 1886 and August, 1893, some during all that period of time and others during varying periods between those dates. The complaint charged the defendants, during the several periods while they were in office, with conduct which was negligent, wasteful and in violation of the statute in many respects, a‘nd averred that the result of all this had been the ruin of the bank. It showed that loans and discounts were made in excess of the amount allowed by law; that losses were permitted to occur to an amount in excess of the undivided profits, thereby creating a deficit in the capital of the bank;, that debts were suffered to remain without prosecution; that in the calculation of profits for the purpose of declaring dividends, debts and the interest accrued and unpaid on the same were included ; that dividends on the shares of stock were made as from undivided profits, when in fact they were paid out of the capital stock * * * * that loans were made to persons engaged in hazardous business enterprises, or upon pretended security known to be inadequate, and that they retained in office a cashier with knowledge that he was dishonest,-incompetent and guilty of a falsification of the books of the bank. One of *301the defendants demurred to the bill on this ground amongst others that there was an improper joinder of causes of action. The demurrer was overruled in the Court below, but on appeal to the Court of Appeals this judgment was reversed and it was held that there had been an improper joinder of causes of action. See O’Brien & Cannon, Receivers, v. Fitzgerald et al., 6 App. Div. 509, affirmed on appeal 150 N. Y. 572.
(Filed January 16, 1901.)Without recapitulating what has been herein stated, it seems to me the decree which dismissed the bill after sustaining the demurrer, was clearly right and that it ought to be affirmed. I am authorized by Judge Boyd and Judge Schmucker to say that they concur in this opinion.
“69. No loan of money shall be made by any such corporation to any stockholder therein, and if any such loan shall be made to any stockholder, the officer or officers who shall make it or who shall assent thereto shall be jointly and severally liable for all of the debts of the corporation contracted before the making of the said loan to the extent of double the amount of said loan; this section shall not however apply to any building or homestead association or any association for the loan of money on real or personal property or to any savings institution.
23, And the complainants charge that the said several respondents to this suit, who were directors of the said corporation, were responsible to the said corporation, and are now responsible to the complainants as its receivers for all losses incurred by it through, or by reason, or in consequence of loans or investments of its funds made in violation of the terms of its charter, and without such due and reasonable regard to its interest as an ordinarily prudent and careful man would have shown in the conscientious discharge of his duties as its director, and that such among them as ceased to be directors, before some or any of the said loans or investments, so resulting disastrously to the said corporation had been made, are yet responsible for the consequences thereof, when such subsequent loans were made by the agency or through the procurement of directors or officers of the corporation whose unfitness for their respective offices had been already established by their concurrence in or assent to similar violation of its charter or other derelictions of duty on their part in the past and who were re-elected to the offices which they thus abused without a full disclosure on the part of their former associates therein of the facts relating to such previous breaches of duty, which facts were either known to the said retiring directors, or could have been, and would have been ascertained by them, had they made, as it was their duty to make, an ordinarily diligent enquiry into the management and affairs of the corporation during the time of their official connection therewith.