Morange a. Mudge.

chattels taken in the proceedings, if a return should be adjudged, and for payment to the defendant in that action of such sum as might for any cause be recovered by him. The defendant having recovered judgment for costs in that action, assigned the undertaking to Morange, who brought this action thereon. The complaint was as follows:

TITLE OF THE CAUSE.

The complaint of the above-named plaintiff respectfully shows to this court that the above-named defendant, at the city of Brooklyn, on September 20, 1855, made and executed an undertaking, a copy of which is hereto annexed and forms a part of this complaint.

Plaintiff avers that judgment was recovered in the action mentioned in the said annexed undertaking, against the plaintiff therein, and in favor of the defendant therein, for his costs and disbursements therein, for the sum of one hundred and ninety-seven dollars and ninety-two cents.

Plaintiff avers that on June 17, 1857, a transcript of said judgment was duly filed in the clerk's office of the county of Kings, and on the same day an execution against the property of Henry C. Mathews, the plaintiff named in said undertaking, was duly issued to the sheriff of Kings county, and after the expiration of sixty days duly returned wholly unsatisfied.

Plaintiff avers that Lewis J. Descombes, the defendant in said undertaking named, has, for a valuable consideration, duly assigned, transferred, and set over unto the above-named plaintiff the said undertaking, and his right, title, and interest of in, and to the same.

Plaintiff avers that the said defendant, by reason of the premises, is liable to the said plaintiff in the amount of said costs, and indebted to him therefor.

Wherefore, &c.

The undertaking, of which a copy was annexed, after the usua recitals in reference to the action in which it was given, provided that "We, James A. Martin, of, &c., and Charles C. Mudge, of, &c., do hereby undertake and become bound to the defendant in the sum of five hundred dollars for the prosecution of the action," &c.

Morange a. Mudge.

To this complaint the defendant demurred, and stated the following as the grounds of his demurrer :

First. That the complaint does not state facts sufficient to constitute a cause of action.

Second. That there is a defect of parties defendant, in that James A. Martin should have been joined with the defendant Charles C. Mudge.

The plaintiff now moved for judgment on account of the friv-olousness of the demurrer.

J. F. Wells, in support of the demurrer.-I. There is no allegation in the complaint that the undertaking was delivered either to the sheriff or the plaintiff. The bond must not only be executed, but delivered to the sheriff, or the proceedings will be irregular. (See Wilson v. Williams, 18 Wend., 581.)

II. There is no allegation that the property referred to in the undertaking, the taking of which by the sheriff forms not only the consideration of the undertaking, but is a condition precedent, was taken by the sheriff.

III. There are not facts enough stated to show that this bond took effect as a statute security. (See opinion of Woodruff, J., in Slack v. Heath, 1 Abbotts' Pr. R., 334.) In that case there is an averment of the delivery of the undertaking, that an action was commenced, judgment obtained, &c.

In Shaw v. Tobias (3 Comst., 188), it is averred that the bond was given for the prosecution of the suit; that the suit was commenced, the goods taken in pursuance of the writ, and all the necessary facts.

In Loomis v. Brown (16 Barb., 325), being an action on an undertaking given on granting an injunction, all the material facts are alleged. So also in Ring v. Gibbs (26 Wend., 502).

In 3 Wend., 54, Marcy, J., said, "The declaration in the replevin bond should set forth concisely all the proceedings in the replevin suit." (See also Chitt. Pl., 212, 216, and 3 Burrill; Phillips v. Price, 3 Maule & S., 180; 1 Bos. & P., 381. See Judge Allen's opinion in case of Raynor v. Clark, 7 Barb., 581.)

IV. The plaintiff is not the owner of the judgment, and has no right to bring suit.

The debt is the principal, the security is the incident. (Green

Morange a. Mudge.

v. Hart, 1 Johns., 581; Pattison v. Hull, 9 Cow., 747; Jackson v. Blodgett, 5 Ib., 202.)

V. The undertaking is a joint one, and the action should have been against Martin and Mudge.

"If several parties stipulate to perform an act, without words of severalty, the presumption of law is, that they intended to bind themselves jointly." (2 Parsons on Contr., 2 ed., 46; 1 Ib., 11; Hill v. Tucker, 1 Taunt., 7; Yorks v. Peck, 14 Barb., 644; Ehle v. Purdy, 6 Wend., 629; Code, § 119.)

H. H. Morange, in answer.-I. The possession of the undertaking by the plaintiff is sufficient answer to the first point of the defendant. By section 423 of the Code the sheriff is bound to deliver the undertaking to the defendant.

II. Even if there be no property taken by the sheriff, yet the undertakers are liable, according to the terms of the undertaking, for the payment of such sum as may, for any cause, be recovered against the defendant.

III. Slack v. Heath (1 Abbotts' Pr. R., 333), cited by defendant's counsel, is, on the contrary, against all the views and arguments urged by him on the argument, as an examination of that case will show.

IV. It was not necessary to aver specially the assignment of the judgment. The assignment of the undertaking is averred, and all the right, title, and interest of Mr. Descombes therein. The interest of Mr. Descombes consists in the judgment referred to in the complaint, and that is assigned. The transfer of the right and title of Descombes to the plaintiff in the undertaking, necessarily carries with it the judgment upon which is based his only right to recover.

The judgment is only the measure of damage, and the plaintiff can only recover the amount thereof against the defendant. A payment of the judgment herein would be a complete and effectual bar against any other action thereon, and the plaintiff is foreclosed by the assignment of all his right, title, and interest therein.

The complaint contains every essential averment. It discloses the nature and cause of the action with sufficient certainty.

DAVIES, J.-Shaw v. Tobias (3 Comst., 188) is an authority

Cross a. Sackett.

for holding that the complaint in this case contains all needful averments. This doctrine is reaffirmed in Slack v. Heath (1 Abbotts' Pr. R., 334).

In Yorks v. Peck (14 Barb., 647) this court says: “In all cases of a joint note given upon a joint loan of money, or a joint liability of any kind, it will be presumed it was intended the note should be several as well as joint, and effect will be given to it according to that intention." So in this case the undertaking will be presumed to be several; and in accordance with section 120 of the Code, the action may be against either of the parties to the instrument.

Judgment for the plaintiff on the demurrer, with leave to defendant to answer.*

CROSS a. SACKETT.

New York Superior Court; General Term, March, 1858. CERTIFICATE OF STOCK.-BUBBLE COMPANY.-LIABILITY OF OFFICERS FOR DECEIT.

A certificate of stock, issued upon the organization of a corporation under the general laws of this State, is to be deemed as a representation, on the part of those issuing it, that the holder is entitled to an interest, proportionate to the whole stock, in a money capital, or in property equivalent substantially to a money capital, of the amount specified as the capital of the company. Parties who project and promulgate the scheme of a joint-stock company, cause the usual books to be opened, allow or cause the inscription of a person as owner of an interest to a definite amount and value therein, and issue certificates of stock therefor, when the capital has not been paid in fully and in good faith-and annex to the certificate a written power, authorizing the transfer at large by the party to whom the certificate is issued--who publish false statements, tending to produce the belief that the stock was at least of par value, and that the business had warranted successive dividends from profits, are liable directly in damages in an action for deceit brought by any innocent party who, on the faith of the public representations and of the statements of the certifi cate, has purchased from third parties, and paid for, shares of the stock.

The terms imposed by the order entered were, service of answer in ten days, and payment of the costs in the cause, including the trial of the issue of law on the demurrer.

Cross a. Sackett.

It seems, that there is no wrong or fraud which directors of a joint-stock company, incorporated or otherwise, can commit, which cannot be redressed by appropriate and adequate remedies.

Appeal from an order overruling demurrer to complaint.

The action was against the defendants, part of whom, it was alleged, had organized, and the others, it was alleged, had united to carry on, a bubble company, stock in which the plaintiff had purchased of a third party, induced thereto by the public representations made by the defendants concerning the company, and by the statements of the certificates of stock issued, and by the fact that dividends had been declared.

The facts in detail are stated in the opinion as well as in the complaint, which, as the action was of a peculiar character and the pleading was sustained, we give below.*

The allegations of the complaint were as follows:

That on the 13th day of August, 1853, the defendant, Moses L. Holmes, executed a certain instrument in writing, with no schedules attached thereto, of which, and of the whole of which, a copy follows, in these words:

[Here followed a copy of the agreement, the substance of which is stated in the opinion of the court.]

and delivered the said instrument to the said parties therein named, who accepted the same.

That on or about, and not later than the 31st day of August, 1853, the said defendants, Amos M. Sackett, John D. Maxwell, Franklin Osgood, Samuel Smith, Moses L. Holmes, and Henry W. Belcher, being the same parties named in said instrument, made and signed an instrument in writing (with no schedules attached thereto), in these words, namely:

[Here followed a copy of the agreement to assign the first-mentioned contract, in consideration of the transfer of 150,000 shares of the stock of the Gold Hill Mining Company, 60,000 of which were then transferred, and the remainder to be transferred thereafter.]

But the plaintiff alleges that at the time of the making and signing of the said instrument there was not in existence any body corporate, or other association, existing under the name of The Gold Hill Mining Company, other than as is next hereinafter stated; and therefore the plaintiff alleges and charges that the said instrument last above set forth was inoperative and void, and intended only to cover the fraudulent and illegal designs of the defendants hereinafter stated.

That on the same thirty-first day of August, all the said defendants in this action, not being members of nor composing any body corporate by the name of the Gold Hill Mining Company, jointly used and assumed the name of the Gold Hill Mining Company, and professing to act as a body corporate duly created and existing, did, at a meeting in the city of New York, at which they were all present, jointly assent to and adopt a resolution in these words, namely:

Resolved, That the Gold Hill Mining Company will accept the proposition made to them by A. M. Sackett, and others, purchasers of the Gold Hill Mines, per