Statement of case. L. R., 6 Ch. Div. 297; Hill v. Hermans, 59 N. Y. 396, 404; 33 id. 9, 27; 4 Seld. 9; 2 Kern. 156; 6 Jolins. Ch. 411; Hackley v. Draper, 60 N. Y. 88, 92; Krekeler v. Ritter, 62 id. 372, 375.) Plaintiffs are not estopped by the statements in defendant's pleadings in other actions read in evidence to show the identity of causes of action and questions litigated or admissions. (Mott v. Consumers' Ice Co., 73 N. Y. 543; Cook v. Barr, 44 id. 156.) Duckworth could not sell the bonds to himself. (Middlesex B'k v. Minot, 4 Metc. 325; Chicago Art. Well Co. v. Corey, 60 Ill. 73; Danoe v. Fanning, 2 Johns. Ch. 252, 260; Stokes v. Frazer, 72 Ill. 428.) An estoppel of record to be taken advantage of must be pleaded by the party setting it up. (Lansing v. Montgomery, 2 Johns. 382; Wood v. Jackson, 8 Wend. 9; Cohn v. Goldman, 43 Sup. Ct. 445, 446; 1 Chitty's Plead. 238; Rex v. Lyme Regis, Dougl. 159; Casseres v. Bell, 8 Term R. 167; Rex v. Home, in Dom. Proc. 11 May; 18 Ga.; 3 Cowp. 672, 682; Davis v. Tyler, 18 Johns. 490; Brazill v. Isham, 2 Kern. 9; Denny v. Smith, 18 N. Y. 567; Krekeler v. Ritter, 62 id. 372, 374.) The defendant, Duckworth, waived the estoppel, if any existed in his favor, by reason of the decision in the Common Pleas suit by going again into the merits of that action on this trial. (Magrath v. Hardy, 6 Scott, 627, 645; Vooght v. Winch, 2 B. & A. 662; Basten v. Carew, 5 D. & R. 558; 3 B. & C. 649; Пooper v. Hooper, McCle. & Yo. 509; Speak v. Richards, Hobart, 206; 2 Smith's Lead. Cas. [8th ed.] 851, note.) The admission in evidence of the remitter from the Court of Appeals in the appeal from the order denying defendant Duckworth's motion to set aside the satisfaction in the suit of Croker v. Roach, was proper. (Krekeler v. Ritter, 62 N. Y. 372, 374; Wright v. Butler, 6 Wend. 284; Lawrence v. Hunt, 10 id. 81; Embury v. Conner, 3 Comst. 511; Gardner v. Buckbee, 3 Cow. 120; Adams v. Conover, 87 N. Y. 422; Loeb v. Hellman, 83 id. 601; 1 Bliss' Code, 356, 357, notes; Ratzer v. Ratzer, 2 Abb. N. C. 461; Lewis v. Mahoney, 1 Hun, 207; Ritter v. Worth, 58 N. Y. 627; Hardt v. Schulting, 85 id. 624; People's B'k v. Heerdt, 24 Hun, 656.) Opinion of the Court, per EARL, J. EARL, J. In April, 1873, the defendant's testator, Isaac, loaned to the Etna Iron Works, a corporation formed in this State, under the General Manufacturing Act of 1848, the sum of $6,000. In October thereafter, Birdsall Cornell, who was one of the trustees of the corporation, for the purpose of inducing the defendant to forbear the payment of his claim for the $6,000, delivered to him six bonds of the corporation of the par value of $6,000, dated in March, 1873, and due in March, 1874, to be held by him as collateral security for his claim. The bonds so pledged were valid bonds of the corporation, for which Cornell had paid to it full value. The defendant's claim against the corporation not having been paid, he sold the bonds which he held as collateral security at public auction in May, 1876, to John C. Croker, for the sum of $640. In June thereafter Croker commenced an action in the Supreme Court against the plaintiff Roach, as one of the trustees of the corporation, to enforce his liability to him on account of the bonds thus purchased, under section 12 of chapter 40 of the Laws of 1848, for not making the report specified in that section for the years 1874, 1875 and 1876. Afterward in February, 1877, Duckworth commenced an action in the New York Common Pleas against Roach and the other trustees of the corporation, who are the plaintiffs in this action, to enforce their liability to him under the section referred to, on account of the debt due him for the money loaned to the corporation, as above stated, for not making the report specified in that section for the years 1874, 1875, 1876 and 1877. Both actions were defended, and the first resulted in a judgment for Croker in February, 1877, for the full amount of the bonds and costs, and the last resulted in a judgment for Duckworth in June, 1878, for the balance due him on account of his loan after deducting some interest which had been paid, and the $640, received upon the sale of the bonds to Croker, as above stated. Appeals were brought from both judgments, and afterward in January, 1879, Roach settled and procured the satisfaction of the first judgment by the payment to Croker of the sum of $1,300. The second Opinion of the Court, per EARL, J. judgment was affirmed in the General Term, and then upon further appeal, in this court, in April, 1880. Thereafter in the same month of April the plaintiffs commenced this action to restrain forever the collection of the three judgments, towit the original judgment recovered against them by Duckworth, and the two judgments recovered by him for costs upon the appeals; and they based their right to relief upon the grounds that the sale of the bonds to Croker was a sham, that he purchased them for Duckworth, and commenced and prosecuted the action for Duckworth, and solely for his benefit; that Duckworth had but one debt of $6,000 against the corporation which he could enforce against the trustees, who were liable to him for but one penalty; that the first action and the recovery therein, if they had known the facts, could have been pleaded as a bar to any recovery in the second action; but that they were ignorant of the facts, and did not discover them until March, 1879, and that Duckworth by the sham sale, and the prosecution of the action in Croker's name for the purpose of recovering two judgments for the same liability, one in the name of Croker and another in his own name, had perpetrated a fraud upon them which entitled them to the relief claimed. The trial court found the facts to be substantially as claimed by the plaintiffs, and granted them judgment, giving them the relief prayed for. That judgment has been affirmed, and has been brought here for review. In 1876, Duckworth held against the corporation two claims, one for the money loaned and one on the bonds pledged to him by Cornell. Holding the bonds as collateral to his claim for money loaned, he could have sued the corporation and have recovered judgment against it upon the bonds, and whether that judgment was paid or not, he could subsequently have sued upon his claim for the money loaned. As between him and the corporation there would have been no defense to either action. So he could have commenced both actions at the same time. The corporation could not have complained of, or in any way objected to the two actions, or two recoveries, because it owed and was liable to pay both debts. After receiv Opinion of the Court, per EARL, J. ing satisfaction of his claim, however, Duckworth would have been liable to account to Cornell for any balance received by him of the corporation, as such balance would have belonged to Cornell on account of his bonds. The bonds were delivered to Duckworth before there was any default on the part of the trustees to make the report required by law, and hence if at that time he had purchased the bonds he would have held them as well as his claim for the money loaned against the corporation, and the liability of the trustees to him on account of their subsequent failure to make the report would have been co-extensive with that of the corporation. They would then have been liable to him for two penalties, one for the amount of the bonds and the other for the amount due for the money loaned, and he could have sued any one, or all of them, under section 12 of the act referred to, to recover the one penalty, and any or all of them to recover the other. I know of no rule of law requiring that all the liabilities in such a case should be enforced in a single action. As many actions could be brought against the trustees as could be brought against the corporation. Section 12 makes all the trustees jointly and severally liable for all the debts of the company in case of failure to make the report required, and a creditor may sue all the trustees successively until he shall obtain satisfaction, or he may at the same time commence a suit against each trustee, and no trustee could properly set up the pendency of a suit, or the recovery of a judgment, against any other trustee as a bar to a recovery against him. A judgment can be enforced only against the trustee sued, although under the section, as amended by chapter 510 of the Laws of 1875, all the other trustees are bound ratably to contribute to the amount recovered against and paid by the trustee sued. Such would have been the position, and such the rights of Duckworth if he had purchased the bonds of Cornell at the time he took them in pledge. But as pledgee his rights were not precisely the same. The pledgor, Cornell, was also one of the trustees, and liable with the others for not making the reports. Hence he could not have sued any of his co-trustees Opinion of the Court, per EARL, J. for failure to make the reports, and Duckworth could enforce the bonds against the trustees only so far as was necessary to his indemnity. If he went further that would be for the benefit of Cornell, and could not be allowed. He had the same right to sue the trustees as he would have had if he had owned the bonds, and they could make no defense which the company could not make, except by paying the amount due Duckworth for his loan to the company. Whenever he obtained satisfaction of his debt for that loan he could go no further, because if he received more it would be for the benefit of Cornell. He could in his own name have sued upon the bonds and recovered judgment, and if that were paid it would as to him have ended the liability of the trustees, because his debt would have been satisfied. But if he failed to collect or obtain payment of that judgment he could then have sued any or all of the trustees to enforce their liability for his debt, and the recovery in the former action would have been no bar to a recovery in the latter. If he thus obtained two judgments, he could only recover upon either or both the amount due him for his loan, and the costs. He could have commenced both actions at the same time, and the only way to prevent his recovery in both would have been for one or more of the trustees to tender him the amount due for his loan and the costs. So his rights as pledgee of the bonds were precisely the same as they would have been as owner, except that as pledgee he could enforce payment only of the amount due him for his loan. It does not, therefore, appear that any damage or wrong, whatever, was done to the plaintiffs, or any of them, by commencing one of the actions in the name of Croker, as they were not deprived of any defenses which they could have interposed if both actions had been commenced in the name of Duckworth as plaintiff. Assuming that Croker represents Duckworth, and stands for him as plaintiff in the one action, all the trustees were required to do was to pay, or tender upon one or both of the judgments, the amount due Duckworth for his loan, and the costs, and then, by motion to the court, they |