296 jointly and severally liable for all the debts of the company then existing, and for all that shall be thereafter contracted while they shall respectively continue in office; provided that if any of the trustees shall object to the declaring of such dividend, or to the payment of the same, and shall, at any time before the time fixed for the payment thereof, file a certificate of their objection in writing with the clerk or secretary of the company and with the register of deeds within the county, they shall be exempt from the said liability.2 If the indebtedness of any such company shall at any time exceed the amount of its capital stock, the trustees of such company assenting thereto shall be personally and individually liable for such excess to the creditors of such company." 297 "No person holding stock in any such company as executor, administrator, guardian or trustee and no such person holding such stock as collateral security shall be personally subject to any liability as stockholder of such company, but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly, and the estate and funds in the hands of such executor, administrator, guardian or trustee shall be liable in like manner and to the same extent as the testator or intestate, or the ward or person interested in such trust fund would have been if he had been living and competent to act, and held the same stock in his own name.” 298 § 431. England. On the winding up of any company every present or past member shall be liable to contribute to the assets of the company an amount sufficient to pay all obligations, except as follows: "(1) No past member shall be liable to contribute to the assets of the company if he has ceased to be a member for a period of one year or upwards prior to the commence ment of the winding up; (2) No past member shall be liable to contribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member; (3) No past member shall be liable to contribute to the assets of the company unless it appears to the court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act; (4) In the case of a company limited by shares, no contribution shall be required from any member exceeding the amount, if any, unpaid on the shares in respect of which he is liable as a present or past member." 299 A director contracting for a limited company and suppressing the word "limited" is personally liable on the contract.300 Every member of a company carrying on business with less than seven members who are cognizant of that fact is severally liable for the payment of the whole debts of the company contracted during such time, and may be sued for the same without the joinder in the action or suit of any other member.301 8432. Canada, New Brunswick, Ontario. "Every shareholder, until the whole amount of his shares has been paid up, shall be individually liable to the creditors of the company to an amount equal to that not paid up thereon; but he shall not be liable to an action therefor by any creditor until an execution at the suit of such creditor against the company has been returned unsatisfied in whole or in part; and the amount due on such execution, not exceeding the amount unpaid on his shares, as aforesaid, shall be the amount recoverable, with costs, from such shareholder; and any amount so recoverable, if paid by the shareholder, shall be considered as paid on his shares. Any shareholder may plead by way of defence in whole or in part any set-off which he can set up against the company, except a claim for unpaid dividends, or 299 25 & 26 Vict. ch. 89, § 38. 300 Ibid. §§ 41, 42. 301 Ibid. § 48. a salary or allowance as a president or a director of the com Shareholders are not liable for any obligation of the company beyond the amount unpaid on their respective shares of stock; 303 and persons holding shares as trustees are not personally liable.304 $ 433. Nova Scotia. No member of any company shall be relieved from individual liability for its debts or obligations; but each member thereof shall be liable as a partner to the same extent as if no company existed; and in case any execution issued on any judgment against the company is returned unsatisfied the individual real and personal property of every member of the company shall be liable to respond such judgment under execution issued thereon in the same manner as if the same was a private debt due by such member, unless the special act creating the company exempts its members from such liability; and any member who is compelled to pay any moneys on account of the debts of the company may recover the same by action against the company." 305 302 Can. 1902, ch. 15, § 31. To the same effect, New Bruns. 1893, ch. 7, § 68; Ont. Rev. Stat. ch. 191, § 37. 303 Can. 1902, ch. 15, § 30. 304 Ibid. § 32. 305 2 Nov. Sc. Rev. Stat. ch. 127, § 11. CHAPTER XVIII. THE ENFORCEMENT ABROAD OF STOCKHOLDERS' OR DIRECTORS' LIABILITY.1 § 441. Kinds of individual liability.|§ 448. Penal liability of stockholder. 442. Existence of liability deter mined by the State of charter. 443. Liability for unpaid subscription. 444. Statutory liability to the corporation. 445. Direct absolute liability to the creditor. 446. No recovery if procedure of forum unsuitable. 447. Recovery on contingent liability. § 441. Kinds of individual liability. 449. Director's liability as surety. 454. Procedure regulated by law 455. Statute of limitations. 456. Suit for contribution. Individual members of a corporation may in various ways incur a liability which it is desired to enforce in a foreign State. Before entering upon a discussion of the law upon this subject, it may be convenient to classify the cases of liability, since the power to enforce the obligation in a foreign State depends greatly upon the nature of it. 1. The stockholder is liable at common law for his unpaid subscription for his shares. This is a purely contractual liability, on which the corporation or its representative may sue as upon any claim of the corporation. 2. By statute an additional liability is placed upon individuals. Thus the stockholders are often made responsible for the debts of the corporation up to the par value of their 1 Copyright, 1904, by The Boston Book Co. stock; or for the debts until the whole amount of the capital has been paid in. So the directors are often made liable by statute for all debts contracted in excess of the capital stock. This liability, while statutory, is original; the stockholder or director is a party to the debt at the moment of its creation, he is, in fact, a statutory surety for the corporation under the circumstances described. Liability of this sort may either be a direct and absolute liability, or it may be indirect and contingent. If the liability runs directly to the corporation, it is quite analogous to the liability for calls; if it runs directly to the creditor, it may be enforced by him as he might enforce the liability of any other surety. But an indirect or contingent statutory liability must be enforced, if at all, in accordance with some particular provisions of the statute creating it. 3. Another kind of statutory liability, not usually imposed upon stockholders, but often on directors, attaches to the individuals for all debts of the corporation by reason of some wrongdoing or omission of duty; as for instance, where the directors who file a false statement of the condition of the corporation are made liable for all its debts, whenever contracted. This is not an original liability, since at the time the debt was contracted the director was not a party to it. The debt, to be sure, might happen to be contracted after the filing of the false return; but that would be a mere accidental circumstance. The nature of the liability is the same whether the debt was contracted before or after the director's liability arose; the director is arbitrarily made responsible for it, and his liability was not counted upon by the creditor at the time the debt was contracted. This is the sort of liability which is commonly called penal. § 442. Existence of liability determined by the State of charter. In all these cases the existence of the obligation is to be determined by the law of the State of charter. That law creates the obligation, and that alone can determine what liability it has created. The statutes of that State, as in |