The case discloses a liability on the part of the plaintiff to arrest, as a stockholder of the corporation known as the Cheshire Iron Works. As such stockholder, he had been duly summoned in the proceedings in the action against the corporation, agreeably to St. 1851, c. 315. He had in that suit *186the full opportunity to raise the question of his liability as a member, but did not appear upon such summons. The case shows also a compliance with all the requisitions of the statute, as to a demand; and also the want of any property to be levied upon of any officer of the corporation at the time when the cause of action accrued, or when the judgment was rendered. In this state of the facts, the plaintiff was arrested, as he well might have been, on this execution, being thus liable thereon as a stockholder.
But it is contended, on the part of the plaintiff, that by the return of the officer upon the execution the defendant is excluded from setting up this defence. The return, after reciting that a demand had been made upon the plaintiff, and that he declared that he had no property in his hands that could be taken on execution, either as an officer or stockholder of said corporation, states: “ I have arrested the body of James N. Richmond as now or formerly an officer of the within named corporation.” The case stated on this return does not state an arrest of an officer of the corporation, who was such at the time when the cause of action accrued, or when the judgment was rendered. It was not the arrest of an officer, within the terms of the statute. The plaintiff might have been an officer at the time of the levy of the execution, though not one at the time of the rendition of the judgment. He might have been “formerly an officer,” and yet not one at the time the cause of action accrued. He was not therefore, by the return itself, arrested as an officer liable to arrest under the statute. In the opinion of the court, notwithstanding this informal return, it was competent for the defendant to show that the arrest was well authorized, the defendant being legally liable to such arrest, and that he was in fact arrested as a stockholder liable on the execution.
The ruling of the court, that the plaintiff could not be permitted to show by evidence that in fact he was not a stockholder, but was estopped by the proceedings in the former action, in which he was duly summoned as a stockholder, and failed to appear and make any defence, was correct.
*187The same reason renders it unnecessary to consider particularly the question, whether sufficient evidence was introduced that due diligence had been used to obtain the corporation books, to authorize the admission of secondary evidence to prove the organization of the corporation, and that the plaintiff was a member thereof; as this was sufficiently established by tlie record of the proceedings in the original case of Cotton against the Cheshire Iron Works.
There is no ground for the objection to the form of the execution upon which the plaintiff was arrested, that it did not command the officer to take the body of the plaintiff. The whole proceeding is anomalous, but justified by the statute. Stedman v. Eveleth, 6 Met. 124.
Upon the execution issued in this form, the judgment creditor had the right to direct the officer in whose hands the execution was placed, to arrest any stockholder who had been duly summoned, and not discharged from liability as a member, in case of a neglect of the officers to pay, and there being found no property of such officers to levy upon. Such instructions to make such levy and arrest were competent evidence in the case, as a part of the proceedings, and in justification of the officer’s proceeding against an individual who was by statute made liable upon the execution against the corporation. Prior to the statute of 1851, c. 315, and under the Rev. Sts. c. 38, § 30, it was held, that in levying such execution the officer must, from the necessity of the case, follow the directions of the creditor, and not those of the precept merely. Stedman v. Eveleth, 6 Met. 125. The form of the execution is not changed by the St. of 1851, c. 315, though the right to arrest a stockholder is limited to those who have been summoned in the action against the corporation. It is the right of the creditor to select such individual as he may elect among those stockholders who may be liable, there being no supersedeas; and although we perceive no special bearing which such instructions could have had upon the issue raised in the present case, yet we are of opinion that their admission furnishes no sufficient ground for setting aside the verdict.
Exceptions overruled.