Disosway a. Winant. the Westfield road-to recover more than two dollars per day for the hearing and determination of all the appeals heard by them from the commissioners' order. When the compensation is a per diem allowance, I am unable to see what moment it is to the referees whether there is one appeal or fifty. There is but one order appealed from, and they are to receive two dollars for every day they are employed. The gross sum to which they are entitled is to be regulated by the number of days they are employed, and not by the number of appeals they may have heard from the same order. The referees in the case of the Westfield road, making up the amount of their compensation, first ascertained the number of days they were employed, which was 16 for one of them, 17 for another, and 15 for the third, making 48 days in all. They then multiplied this sum by four, the number of the appeals from the order, making 192 days for which they demanded and received compensation. The bare statement of the proposition is its own refutation, for no argument could add to the folly or absurdity of asserting that a man could actually be employed four mortal days within the space of 12 or 24 hours. The illegality and injustice of this mode of computing the referees' compensation is, however, not so flagrant at first sight, in its application to the case of the Westfield road, because the order of the commissioners was affirmed, and the referees' compensation is distributed and assessed upon the four different appellants, who are each charged with the sum of $96. But change the picture, and suppose the order appealed from an order refusing to lay out a public road, and that in place of four, there had been fifty appeals, as there might have been, and that the order had been reversed after sixteen days employed in the hearing. It would then have become the duty of the referees to proceed to lay out the road by metes and bounds, courses and distances, and their expenses would have become a charge upon the town. Would fifty separate orders have been tolerated as necessary to the decision of the appeals; and could the town have been legally subjected to the payment of $1,600 to each referee? This is an extreme case, and one not likely to occur, but it tends to show to what the rule contended for by the plaintiff would lead, if it could be sanctioned. The relation which the town would maintain to these supposed proceedings, is that of respondent seeking to uphold one order Disosway a. Winant. made by one class of its officers against appeals taken to its validity by fifty several appellants, which the law requires shall be heard and determined together at the same time and by the same appellate tribunal. The separation of such a proceeding into several parts, for the purpose of enhancing the compensation of the referees, or for any other purpose, is at variance with the spirit as well as the letter of the statutes. The sum of $96 to which the referees in the case of the Westfield road are doubtless entitled to receive, is to be paid to them by the party appealing, because the order was affirmed. This is the direction of the 9th section of the act of 1847. The party appealing are those who brought the appeals, and at whose instance the litigation is had. The law imposes upon them the duty and obligation of paying the per diem compensation of the referees when the order appealed from is affirmed. When several persons appeal, the obligation to pay is a joint obligation, which the law imposes upon them all. It follows that James Johnson, James Johnson, Jr., and Winant Winant, the other appellants, are necessary parties defendants to the action. The plaintiff paid the referees' fees, and took an assignment of their claim, whatever it might be; and it is unnecessary, therefore, to say whether they, jointly or separately, had a right of action to recover their compensation, because the plaintiff is the assignee of each of them. There should be a new trial, with costs to abide the event. The other members of the court concurred in these views and conclusions, with this exception :-They were of opinion that the obligation to pay the fees of the referees was joint and several, and might be enforced in an action against one as well as in an action against all the appellants from the commissioners' order. That the plaintiff, being the assignee of each of the referees, and thus uniting in himself their several claims, could maintain this action to recover the $96 due to the three referees, with the interest, and which, when paid, would be a satisfaction of the entire claim for services rendered by them. The judgment, for this reason, was ordered to be affirmed. The Slater Bank a. Sturdy. THE SLATER BANK a. STURDY. Supreme Court, First District; At Chambers, August, 1861. SECURITY FOR COSTS BY FOREIGN CORPORATION. Where a foreign corporation has commenced an action in this State, after giving security for the costs thereof, as provided in 2 Rev. Stat., 457, § 1, and the sureties become insolvent, the court has no authority to require new or further security to be given. Motion to compel the plaintiff to file a second bond for costs. The plaintiff in this action was a foreign corporation, and had filed security for costs at the commencement of the action, as required by 2 Rev. Stat., 457, § 1. The obligors in the bond became insolvent, and the defendant made the present motion. B. Cozzens, for the motion, cited 2 Rev. Stat., 457, § 1; Ib., 620, § 2, and contended that, by parity of reasoning, from both these provisions the court had and should exercise the power of requiring a new bond in a case like the present. E. A. & W. B. Carpenter, opposed.-I. Upon filing security for costs, a foreign corporation obtains the right to sue in the courts of this State in like manner as any corporation created under the laws of this State. (2 Rev. Stat., 4 ed., 698.) The plaintiff filed the necessary security and the right to prosecute accrued. II. The statute contains no provision compelling foreign corporations, or non-resident plaintiffs, to file a second and new bond in case the obligors in the first become insolvent, or in any other case. III. The plaintiff, as is admitted by the defendant, complied with the statute, and the court has no power to go beyond it, and independently of it to compel the filing of a new bond. (Hartford Quarry Co. a. Pendleton, 4 Abbotts' Pr., 463.) The Merchants' Bank of New Haven a. Bliss. LEONARD, J.-The condition as to security for costs, under which the statute permits a foreign corporation to sue in the courts of this State, was complied with by the plaintiffs. There is no provision authorizing the courts to require new security in case the obligors on an undertaking fail, as there is in case of an appeal from a judgment, or in the case of an action where a foreign corporation or a non-resident is plaintiff. When the security has been once given, the statute has been complied with. The plaintiff or appellant has then become entitled to the benefit of his appeal, or to prosecute his action. There is no further authority to require further or new seeurity. The motion is denied, with costs of opposing, to abide the event. THE MERCHANTS' BANK OF NEW HAVEN a. BLISS. New York Superior Court; General Term, August, 1861. STATUTE OF LIMITATIONS.-ACTION FOR A FORFEITURE OR PENALTY. -LIABILITY OF TRUSTEES OF A MANUFACTURING CORPORATION. An action brought to charge defendants, as trustees of a corporation organized under Laws of 1848, ch. 40,-authorizing the formation of corporations for manufacturing, mining, mechanical, or chemical purposes,—with a debt of the company, on account of a failure of the company to file the annual report required by section 12 of that act to be filed within twenty days from January 1st in each year, is an action upon a statute for a penalty or forfeiture given to the party aggrieved, within the meaning of subdivision 2 of section 92 of the Code. and must be commenced within three years. Where, in an action to charge defendants, trustees of a corporation organized under the general law authorizing the formation of corporations for manufacturing and other purposes, with personal liability for a debt of the company, the defendants answered that at the time the debt matured, and for a long time afterwards, the corporation was solvent, and its stockholders severally and individually liable for all its debts, by reason of the non-payment of its capital stock; that the plaintiff neglected to institute suit for two years, and that by such neglect the plaintiff released and discharged the stockholders from personal liability; that no notice was ever given to defendants of plaintiff's claim, nor had the defendants any opportunity of being subrogated to the rights and remedies of the plaintiff against the corporation while solvent, nor against the stockholders before they were released as above stated: on demurrer to the answer, -Held, that these facts constituted no defence to the action VOL. XIII-15 The Merchants' Bank of New Haven a. Bliss. To determine whether a liability to which a person is subjected, is by way of penalty or forfeiture, it is not necessary that the statute in the language imposing it should denominate it a penalty or forfeiture. When the statute subjects an officer of a company, as such officer, to a liability to pay money either for omitting to perform a duty enjoined, or for doing an act prohibited, and does this in a case where but for such omission of duty or wrongful act he would be under no liability, he is thereby subjected to a forfeiture of the sum which he is made liable to pay, and so far as he is concerned, the imposition of liability is by way of punishment. Appeal from an order sustaining a demurrer. This action was brought to charge the defendants, as trustees of the Empire Stone Dressing Company,--a corporation organized under the general manufacturing law of this State,-with personal liability for an acceptance of such company, bearing date, April 4th, 1854, and payable sixty days from date; on the grounds: I. That the annual report required by the twelfth section of the General Manufacturing Act, was not filed by said company within twenty days from the first day of January, 1854, nor until after said draft was accepted. II. That the annual report of such company, filed on the twentieth day of January, 1853, was untrue, and contained material false representations. III. That during the year 1853, the trustees of such company declared and paid dividends tending to render the company insolvent. The defendants answered, denying most of the allegations in the complaint, and set up affirmative defences in the following words: "Ninth. And these defendants, further answering, aver that this action is upon a statute for a penalty where the action is given to the party aggrieved, and that the same was not commenced within three years after the cause of action alleged in the complaint accrued. "Tenth.-And for a further and separate defence to said action, these defendants say that at the time of the maturity of said bill of exchange, and for a long time afterwards, the Empire Stone Dressing Company was solvent and able to pay all its debts; that its stockholders were severally and individually liable, to an amount equal to the amount of stock held by them respectively, for all the debts of said company, by reason of the |