I concur fully in the opinion which has just been delivered by my brother Jones, and will add only a few words by way of explanation. This case was only brought before the Supreme Courtpro forma, as the question had been previously decided inFreeland v. McCullough, 1 Denio, 414. That case was not fully argued; and when it was decided, one of the principles which had been settled in relation to this *Page 76 class of cases was entirely absent from my mind. Had it been mentioned or thought of, I could not have concurred, as I did, in the judgment which was rendered by the Supreme Court. It had been several times held, that the stockholders of this and other like companies, stood substantially upon the same footing as to liability as though they had been partners, or an unincorporated association; that they were answerable to the creditors of the company as original and principal debtors, though the creditors were first to exhaust their remedy against the corporation. (Allen vs. Sewall, 2 Wend. 338 ; Exparte Van Riper, 20id. 614; Moss vs. Oakley, 2 Hill 265, 269; Bailey vs.Banker, 3 id. 188; Harger vs. McCullough, 2 Denio, 119, 123.) In this view of the matter it is entirely clear, that the three years statute of limitations is not applicable to the case. I am therefore of opinion that the judgment of the Supreme Court should be reversed, and that judgment should be rendered for the plaintiffs on the demurrer.
Ordered accordingly.
JEWETT, Ch. J. dissented. *Page 77