Taft v. Ward

Chapman, C. J.

This case is incumbered, by a mass of inartificial pleadings; and it has been difficult to ascertain from them what is the question intended to be presented to us. It is an action in favor of the plaintiff against David A. Ward and several other persons, living in this and other states, for services and expenses. The defendant Ward, among other motions and answers, makes one answer which denies the allegations in the plaintiff’s writ, and alleges that, if the services were rendered, they were rendered to the Hew England Express Company, and if the defendant is liable he is merely liable as a member of that company.

The papers referred to in the record and report tend to show that certain persons, being more than seven in number, associated together in the state of Hew York to form the Hew England Express Company. It was not incorporated, and it consisted of persons living in Hew York, Massachusetts and other states, and some of its meetings were held in Boston. Its principal purpose seems to have been to do business as an express company in all the Hew England states.

The defendant objects, among other things, that, even if the plaintiff, an inhabitant of Boston, is a creditor of the association, he cannot maintain this action, but must proceed according to the provisions of the statutes of Hew York, which he cites.

These statutes provide, in substance, that any association, consisting of seven or more shareholders or associates, may sue and be sued in the name of the president or treasurer; that in such suit a judgment may be rendered against the company; and until an execution is issued against the company, and returned unsatisfied, no action shall be maintained against individuals. These etatutes seem to apply to all copartnerships consisting of seven or more members. The members of such companies are authorized to hold their interests in shares, which are assignable like shares of stock in a corporation, and the action against the members is regarded as supplementary to the action against the company. Waterbury v. Merchants’ Union Express Co. 50 Barb. 157. Robbins v. Wells, 1 Robertson, 666.

So far as these statutes relate to the procedure in courts for the recovery of debts, they are limited to the state of Hew York; for each state adopts its own forms of remedy. Story Confl. Laws §§ 556-558. The plaintiff could not in this Commonwealth bring an action against the president or secretary, and obtain a judgment against the company by its name ; nor could he bring an action against the members, or any of them, as a supplement to such an action. In order to do so, we must hold that the statutes of Hew York prescribing forms of action are in force here. In this Commonwealth, such a company is a mere copartnership. Tappan v. Bailey, 4 Met. 529. Tyrrell v. Washburn, 6 Allen, 472. If this company were a corporation in Hew York, we should have no power to enforce the remedies provided by the statutes of that state in favor of creditors against its stockholders. Halsey v. McLean, 12 Allen, 438. Erickson v. Nesmith, 15 Gray, 221, and 4 Allen, 233. But it is not a corporation in that state. It is but a copartnership, and the peculiar powers conferred upon copartnerships there, when they are composed of seven or more members, are not of such a nature as to make its contracts anything else but contracts of the individual members.

Case remitted, to stand for trial.