Opinion of the Court.

sions of the referee, the exceptions to which on behalf of Parker were overruled. The certificate of the referee returned into the District Court, and sent up to the Supreme Court as a part of the transcript by the clerk of the District Court, in pursuance of the appeal, was as follows:

"I, B. L. Sharpstein, referee in case of Timothy P. Denney v. H. Parker and J. F. Boyer, do hereby certify that the foregoing evidence, consisting of five packages or bundles, numbered one (1), two (2), three (3), four (4), five (5), is the evidence written down before me and taken in said action, and that the same, with the documentary evidence returned herewith by me into court, constitutes the evidence submitted to and taken by me in said action."

The clerk of the District Court stated in his certificate, contained in the transcript transmitted to the Supreme Court, “that the five packages of testimony herewith transmitted to the Supreme Court, and nuinbered by pages from 1 to 1572, is all the testimony in the case of Timothy P. Denney v. Hollon Parker and John F. Boyer, as taken before B. L. Sharpstein, Esquire, referee in said case, and by him deposited with the clerk of said court. And I further certify, that the letters papers, and exhibits, herewith transmitted and numbered in ink figures from 1 to 130 respectively, are all the papers, letters, and evidence introduced in said cause before said referee, and by him deposited with the clerk of said court."

The transcript on appeal also was certified by the clerk, stating "that the foregoing is a full, true, and correct transcript of so much of the record in the above-entitled cause as I am by statute and directions of attorneys in said cause required to transmit to the Supreme Court."

It appears from these documents very clearly that nothing was omitted in the transcript by direction of attorneys except the subpoenas; that all the testimony introduced by the parties on the trial before the referee was returned into the Supreme Court, duly certified as such, and that that constituted all the evidence introduced by the parties on, the trial in the court below, in accordance with $ 451 of the Territorial Code, because it appears by the decree sought to be appealed from

Syllabus.

that the cause was finally heard upon the report of the referee, the exceptions thereto of the defendant Parker being overruled, and the report of said referee being in all things confirmed, except as modified and altered by the findings and conclusions of the court itself. It thus appears with certainty that the transcript contained all the evidence introduced by the parties on the trial in the court below. It follows that Parker's appeal had been duly taken and perfected, and the cause had been properly transferred from the District to the Supreme Court of the territory; and that the latter, having acquired jurisdiction thereof, should have proceeded in the exercise of its jurisdiction to hear and determine the same upon its merits. For the failure to do so

The writ of mandamus must issue. It is accordingly so

ordered.

FOURTH NATIONAL BANK OF NEW YORK v. FRANCKLYN. ·

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Argued January 14, 1887. - Decided March 21, 1887.

Where the statutes of the state which creates a corporation, making the stockholders liable for the corporate debts, provide a special remedy, the liability of a stockholder can be enforced in no other manner in a court of the United States.

Under the statutes of Rhode Island, making the stockholders of a manu-. facturing corporation liable for its debts until its capita! stock has been paid in and a certificate thereof recorded; ad originally providing that the property of stockholders might be taken on writ of attachment. or execution issued against the corporation, or the creditor might have his remedy against the stockholders by bill in equity; and since modified by enacting that all proceedings to enforce the liability of a stockholder for the debts of a corporation shall be either by suit in equity, or by action of debt on the judgment obtained against the corporation; a creditor of a Rhode Island corporation cannot bring an action at law against the executor of a stockholder in the Circuit Court of the United States in New York, without having obtained a judgment against the corporation, even if the corporation has been adjudged bankrupt.

Statement of Facts.

THIS was an action at law, brought December 10, 1879, by a national bank against the executor of Edwin Hoyt, a stockholder in the Atlantic De Laine Company, to recover the amount of a debt for upwards of $100,000, due from that corporation to the plaintiff on promissory notes made and payable in December, 1873, and January, 1874.

The parties duly waived a jury, and submitted the case to a referee under a rule of court; and also agreed in writing upon "a statement of certain of the facts in this action," which defined the amount of the debt due from the corporation to the plaintiff, and the material parts of the rest of which were as follows:

The Atlantic De Laine Company was a manufacturing corporation, established in the State of Rhode Island,, under a charter granted in 1851 by the General Assembly of that state, which fixed and limited its capital stock at $300,000, and by section 8 of which "the liability of the members and officers of this corporation for the debts of the company shall be fixed and limited by, and the corporation, its members and officers, shall in all respects be subject to, the provisions of an act" mentioned below. [Rhode Island Laws of May Session, 1851, pp. 33-36.]

"Fourth. In and by an act entitled 'An act in relation to manufacturing corporations,' passed at the June session of 1874 by the aforesaid general assembly of the State of Rhode Island, it was provided, among other things, as follows: 'The members of every manufacturing company that shall be hereafter incorporated shall be jointly and severally liable for all debts and contracts made and entered into by such company until the whole amount of the capital stock, fixed and limited by the charter of said company, or by vote of the company in pursuance of the charter, shall have been paid in, and a certificate thereof shall have been made, and recorded in a book kept for that purpose in the office of the city or town clerk of the city or town wherein the manufactory is established, and no longer, except as hereinafter provided.'

"It was also therein provided that 'When the stockholders in a manufacturing company shall be liable, by the provisions

Statement of Facts.

of this act, to pay the debts of such company, or any part thereof, their persons and property may be taken therefor, on any writ of attachment or execution issued against the company for such debt, in the same manner as on writs and executions against them for their individual debts. The person to whom said officers or stockholders may render themselves liable as aforesaid may, instead of the proceedings aforementioned, have his remedy against said officers or stockholders by a bill in equity in the Supreme Court.' [Rhode Island Laws of June Session, 1847, pp. 30, 35.]

"The foregoing provisions were substantially continued in force by chapter 128 of the revision of the statutes of the State of Rhode Island of 1851, and by chapter 142 of the revision of said statutes of 1872, and continued to be, and at all times mentioned and set forth herein were, and still are, in full force and effect as statutes of the State of Rhode Island."

The whole amount of the capital stock of the Atlantic De Laine Company was never paid in, nor a certificate filed, as required by these provisions. Hoyt was a resident of New York, and a stockholder in that company, from its incorporation until his death in May, 1874. He left a will, under which letters testamentary were issued to the defendant in New York; but it was never proved in Rhode Island, nor were letters testamentary or of administration upon his estate ever issued there.

"Tenth. No writ of attachment or execution has ever been issued against the Atlantic De Laine Company for or on account of the claim of the plaintiff upon the aforesaid promissory notes; and no suit in equity has ever been begun in the Supreme Court of Rhode Island against any of the officers or stockholders of the Atlantic De Laine Company, founded upon the plaintiff's claim herein.

"Upon the 30th day of March, 1874, the said Atlantic De Laine Company was duly adjudicated a bankrupt by the United States District Court for the District of Rhode Island."

The referee found the facts as agreed by the parties; and, against the objection and exception of the plaintiff, admitted in evidence the reports of the cases, adjudged in the Supreme

Argument for Plaintiff in Error.

Court of Rhode Island, of New England Bank v. Stockholders of Newport Factory, 6 R. I. 154, and Moies v. Sprague, 9 R. I. 541, as proof of the law of Rhode Island, and found the following as an additional fact:

"Twelfth. Prior to the making of the aforesaid notes, it had been judicially determined by the Supreme Court of the State of Rhode Island, that court being the highest judicial tribunal of the said state, that the remedies provided in favor of creditors of corporations therein referred to against their stockholders by said act of June Session of 1847 were exclusive of, and did not include, the remedy of an action in favor of such creditor against such stockholder."

"Upon the foregoing facts," the referee reported as a conclusion of law, that the defendant was entitled to judgment. The court confirmed his report, specially found the facts as stated by him, and gave judgment for the defendant. The plaintiff sued out this writ of error.

Mr. Benjamin H. Bristow (Mr William S. Opdyke was with him on the brief) for plaintiff in error cited: Hawthorne v. Calef, 2 Wall. 10; Flash v. Conn, 109 U. S. 371; Cuykendall v. Miles, 10 Fed. Rep. 342; Corning v. McCullough, 1 N. Y. 47;1 Wiles v. Suydam, 64 N. Y. 173; Mills v. Scott, 99 U. S. 25; Pank of the United States v. Donnally, 8 Pet. 361, 372; Moies v. Sprague, 9 R. I. 541, 557; Knowlton v. Ackley, 8 Cush. 93: James v. Atlantic De Laine Co., 11 Bankr. Reg. 290; Lowry v. Inman, 46 N. Y. 119; Pollard v. Bailey, 20 Wall. 520; Penniman's Case, 103 U. S. 714; Erickson v. Nesmith, 15 Gray, 221;2 Erickson v. Nesmith, 4 Allen, 233; Railway Co. v. Whitton, 13 Wall. 270; Cowles v. Mercer County, 7 Wall. 118; Le Roy v. Beard, 8 How. 451; Davis v. James, 10 Bissell, 51; Suydam v. Broadnax, 14 Pet. 67; Union Bank v. Jolly, 18 How. 503; Hyde v. Stone, 20 How. 170; Warren v. Wisconsin Valley Railroad, 6 Bissell, 425; Rocky Moun tain Bank v. Bliss, 89 N. Y. 338; Paine v. Stewart, 33 Conn. 516, Bailey v. Hollister, 26 N. Y. 112; Chase v. Lord, 77 N. Y. 1; New England Bank v. Stockholders of Newport Fac iory, 6 R. I. 154; Bacon v. Pomeroy, 104 Mass. 577, 582.

1 S. C. 49 Am. Dec 287. 2S. C. 77 Am. Dec. 78. 3 S. C. 75 Am. Dec. 688.