there is evidence that at the time of the agreement the matter of filing reports was discussed, and all agreed that it was not necessary; that the company stopped business shortly afterwards, and never resumed; and nothing on the subject is shown to have occurred afterwards between the parties,-it is error to direct a verdict for plaintiff on the ground of defendants' subsequent failure to file the statutory reports, as, if this failure was caused by an understanding with plaintiff, he is estopped, and whether there was such an understanding is a question for the jury. In an action against the trustees of a corporation to enforce their liability on notes of the corporation by reason of their failure to file and publish the annual report required by law, parol evidence is admissible to show that the notes were given pursuant to an oral agreement between the parties to the suit who together owned the entire stock of the corporation, that each should advance money for the benefit of the corporation to the amount of his stock, and wait for payment out of the profits of the business, as, such agreement having been executed, the enforcement of plaint iff's notes against defendants under the statute would be inequitable.2 § 264. Procedure to enforce liability. The personal liability of directors of a national bank for violation of the law by declaring dividends in excess of net profits, and for lending to separate persons, firms or corporations amounts exceeding one-tenth of the capital stock, can not be enforced in an action at law. The cause of action abates with the death of the creditor. But an assignee of a claim against a manufacturing corporation may maintain such an action. against a trustee thereof." An action arising under such acts survives the directors and may be brought against their administrators. And the fact that the affairs of the corporation have been placed in the hands of a receiver neither takes 1 Carraher v. Mulligan, (1890) 8 N. Y. Sup. 42. 2 Carraher v. Mulligan, (1890) 8 N. Y. Supl. 42; N. Y. 3 Rev. Stat. (8th ed.) p. 1907, § 12. 'Boyle v. Thurber, (1888) 50 Hun, 259. Pier v. George, 86 N. Y. 613, reversing s. c. 20 Hun, 210. 6 McComb v. Kellogg, (1888) 47 3 Welles v. Graves, 41 Fed. Rep. Hun, 634, construing N. Y. Laws of 459. 1848, ch. 40, § 23. away nor suspends this right of action. A creditor of the corporation may sue one or more of the directors to enforce the liability without joining all the creditors to whom they are liable, or all the directors subject to the liability. And it is not necessary that the creditor before suing the directors. shall have obtained judgment against the corporation. He may, if necessary, join it as co-defendant with the directors, and establish his claim against the corporation in the same action. The provisions of law which make the directors and officers of a corporation whose indebtedness exceeds the amount of its capital stock personally liable for such excess if they assent thereto, are not penal, within the meaning of an act which makes the lapse of two years a bar to an action for a statutory penalty. Such offenses, therefore, come under the law which provides that all civil actions not otherwise provided for, shall be begun within five years next after the cause of action accrued. But the California statute regulating the conduct of mining business, requiring the directors of corporations organized for that purpose, under a joint and several penalty of a thousand dollars, recoverable by any stockholder, to post in a conspicuous place in the office of the company, on the first Monday of each month, a duly-verified and itemized account or balance-sheet for the preceding month, is penal in its character; and, as it does not specifically declare that the penalty may be recovered for each failure to comply with its requirements, there can be but one recovery for all failures prior to the commencement of suit. In an action by the creditors of a corporation against the directors thereof to hold them personally liable, because the debts of the corporation created by defendants exceed the amount of its capital stock, it is enough to state the amount of such capital and the claims. which are outstanding, and it is not necessary that the debts should be due. If an apparent claim is not real, the fact 1 Patterson v. Minnesota Manuf. Co., (1889) 41 Minn. 84. 2 Patterson v. Minnesota Manuf. Co., (1889) 41 Minn. 84. 3 Patterson v. Minnesota Manuf. Co., (1889) 41 Minn. 84. 4 Wolverton v. Taylor, (Ill. 1890) 23 N. E. Rep. 1007. 5 Wolverton v. Taylor, (Ill. 1890) 23 N. E. Rep. 1007. 6 Loveland v. Garner, (1887) 94 Cal. 298. should be set up by answer. To subject the directors of a corporation to liability joint and several for the corporate debts for the preceding year upon a neglect on their part to file the report of debts and capital, as prescribed by statute, it is held that the complaint must allege that the company was transacting business in the county where it is claimed that the report should have been filed, and must state the contract of indebtedness, which is sued upon, as well as set forth the default of the company and the fact that the parties sued are directors so as to be liable, since the corporation is, by the terms of the statute, charged with no such duty unless these facts exist. The directors, when sued to enforce their personal liability, can not question the original consideration of a corporate note indorsed before maturity to a bona fide indorsee for value. In attempting to set up the statute of limitations, defendants failed to allege that they were trustees at the time of defaults stated by them to have occurred in previous years, and failed to allege a default on the part of the corporation in performing the corporate duty of making a report; and it was held, that the answer stated no defense.1 § 265. Contribution. As to whether the doctrine that there can be no contribution among joint tort-feasors applies to directors under statutes imposing liability upon them, it has been held in Massachusetts that there may be contribution, as the statute was to be regarded as remedial rather than penal, and in case of a recovery against one for failing to file the annual certificates required by the statute, he might maintain a bill in equity against those jointly liable with him, for contribution. But the contrary was held in New York with respect to liability so arising out of tort. The right of contribution then depends upon the innocence of those of them who have been held liable therefor. There is no right of contribution between those that are equally guilty, although one of them may have been compelled to make good the whole loss; for each is liable for the whole. It is obvious that the 1 Robinson v. Attrill, 66 How. Pr. 121. 4 Cornell v. Roach, 101 N. Y. 373. 5 Nickerson v. Wheeler, 118 Mass. 2 Anfenger v. Anzeiger Publishing 295. Co., (1887) 9 Colo. 377. 3 Cooke v. Pearce, 23 S. C. 239. 6 Andrews v. Murray, 33 Barb. 354. solution of the question will depend upon the character of the act enjoined or prohibited by the particular statute. If the wrong committed is a merė negligence, an inadvertent omission, there may be contribution and there ought to be; if it involves the element of evil intent, there can be no contribution, and there ought not to be. So where several directors have been held liable for the wrongful acts of another, of which they are innocent, they are entitled to contribution from him; and so if one director be made to pay the whole loss arising from a wrongful act of which he was innocent, he is entitled to contribution from the others. In the case of contracts the matter is plain. When the directors of a corporation become liable upon a contract entered into by the corporation, and any of them are required to assume more than their proper proportion of the liability, they are entitled to contribution from the others." § 266. Liability of officers other than directors.-The cases illustrating the liability of cashiers, treasurers and other like officers of corporations rest on no different principles from those which govern the liability of persons doing business for themselves, or as the agents of natural persons. But salaried officers and agents may be held to a higher degree of diligence in the performance of their duties than are directors, for they are supposed to devote a greater portion of their time to the service of the corporation. Where the president of an omnibus company directed its drivers to exclude all colored persons, it was held that he was individually liable for the ejection and personal injury of such persons, although an action might have been maintained against the company. So the general 1S. D. Thompson in 6 So. L. Rev. 413. 2 Power v. O'Connor, 19 Week. Rep. 923; Power v. Hoey, 19 Week. Rep. 916; Lewin on Trusts, 6th ed., 744. Bank v. Ten Eyck, 48 N. Y. 305; 3 Slaymaker v. Gundacker, 10 Corporations, § 618. 4 Thompson on the Liability of Officers and Agents, 487. Pangborn v. Citizens' Building Assoc., 35 N. J. Eq. 341; Commercial 6 Peck v. Cooper, (1885) 112 Ill. 192; s. c. 54 Am. Rep. 231. An affidavit reciting that judgment had been entered and served on defendant, manager of a corporation is properly prosecuted if the corporation violates an ordinance by doing business without having paid its license tax. Where the treasurer of a savings bank, who was also one of its managers, assigned to it a bond and mortgage owned by him on lands not worth double the mortgage, as required by the bank's charter, and without submitting the investment to the finance committee for approval, as required by its by-laws, it was held that he was liable for a loss sustained on such bond and mortgage. If the secretary of a corporation, whose duty it is to receive moneys due the corporation, and to pay them over to the treasurer, fails to pay over promptly, and the moneys are stolen from him, he and the sureties, on a bond given by him for the faithful performance of his duties, are liable. When a local agent of an insurance company receives instructions to cancel a policy and fails to do it, he is responsible for the loss. But an officer the president of a corporation, requiring him, on receipt of certain certificates of corporate stock and powers of attorney, to issue new certificates, and enter the transfer on the corporation books, and that he had refused to obey the same, is sufficient to support an order punishing for contempt. King v. Barnes, (1888) 109 N. Y. 267. would pay the amount due from the treasurer on account of such improper loan, which was refused, and a receipt was given by plaintiff, reserving its rights against the treasurer and his sureties, it was held, that the bringing of such suit did not amount to a ratification of the treasurer's act in making the loan, and that he was still liable for the 1 Wyandotte v. Corrigan, (1885) 35 balance after deducting such perKan. 21. 2 And that the fact that the managers did not object to or repudiate the transaction for six years, was no defense, whether his breach of duty was known or not known by the other managers. Williams v. Riley, (1881) 34 N. J. Eq. 398. And where the treasurer of a corporation improperly loaned its funds to another corporation, of which he was also treasurer, and the former sued the latter for the amount, and in good faith effected a settlement for a percentage, after notifying the treasurer and his sureties of their intention so to do, and offering to assign the claim to them provided they centage. Goodyear Dental Vulcanite Co. v. Caduc, (1887) 144 Mass. 85. 3 Odd Fellows' Mut. Aid Assoc. v. James, (1883) 63 Cal. 598; s. c. 49 Am. Rep. 107. 4 Phoenix Ins. Co. v. Pratt, (1887) 36 Minn. 409. But where an insurance company, through a misconception by its agent of his duty, while acting in good faith, was drawn into the insurance of a building at a rate fixed for insurance if occupied for a hotel, for which purpose it had not in fact been occupied, but was expected to be soon, and the actual risk was not greater than it was represented to be, and the premium received was greater than |