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are more like partners with a limited liability; no one would think after exhibiting the assets of a partnershp and still later of calling on the individual partners for the deficiency, that their liability was secondary. It is conditional, and this is precisely the liability of a stockholder wherever the double liability exists.

The same opinion is maintained concerning the liability of national bank stockholders. "Every creditor of the bank, becoming such, becomes eo instante, a creditor of the shareholder in respect to the liability in question. The shareholder becomes thereby a principal debtor. The debt of the bank is his debt at the instant of its creation."75

(e.) This liability is purely personal; no one is obliged to pay more by reason of the delinquency of another.76 A similar construction is given to the national banking law.77

stockholders to all the creditors on the principle of copartnership, the stockholders standing on substantially the same footing as though they were partners or an incorporated association, save only that the responsibility of each is limited to a sum equal to his share or shares of stock." Dixon, C. J., Merchants' Bank v. Chandler, 19 Wis. 434, 437. In one of the latest opinions the court said: "This obligation is to the corporation in trust for the security of its creditors. It is difficult to see in what respect it differs from the promise to pay the amount of his stock, so far as the right of the creditor is concerned, except in the order of liability. The corporation may not, as against creditors or other stockholders, relieve him from the obligation. Foundry Co. v. Killian, 99 N. C. 501. The corporation, or those representing or succeeding to its rights and remedies, should collect all unpaid subscriptions before resorting to the additional statutory liability. The receiver represents and, in a certain sense, succeeds to the rights of the corporation." Smathers v. Bank, 135 N. C. 410, 414.

75 Blatchford, J., Hobart v. Johnson, 8 Fed. 493, 495.

76 Rehbein v. Rahr, 109 Wis. 136; In re Hollister Bank, 27 N. Y. 393; Crease v. Babcock, 10 Met. (Mass.) 525, 555; Brown v. Merrill, 107 Cal. 446; First Nat. Bank v. Winona Plow Co., 58 Minn. 167; Hanson v. Davison, 73 Minn. 454; Brundage v. Monumental Granite Co., 12 Or. 322; Umsted v. Buskirk, 17 Ohio St. 113, 118; Maine Trust & Bkg. Co. v. Southern Loan & Trust Co., 92 Me. 444; Brunswick Terminal Co. v. National Bank, 112 Fed. 813; Hatch v. Dana, 101 U. S. 205; Union Nat. Bank v. Halley, 104 N. W. (S. Dak.) 213.

77 United States v. Knox, 102 U. S. 422; Kennedy v. Gibson, 8 Wall. (U. S.) 498, 505; Stanton v. Wilkeson, 8 Bened. (U. S.) 357, 362; Bailey

This is the more general law. But in some cases78 by statute stockholders are liable to the par value of their stock for the debts of their bank, thus making them liable to a limited amount "as though they were partners."79 Wherever such a rule of liability prevails, those who are solvent may be required by a court of equity to make good the shortcomings among their number, each paying such a proportion of the whole debt as his stock bears to the whole amount owned by the solvent stockholders.80

(f.) By the national banking law either the receiver, or the creditors of the failed bank, can enforce the double liability;81 but both cannot at the same time start proceedings against the stockholders.82

When the mode of procedure has not thus been positively prescribed, the creditors generally have been regarded as the proper party, because the fund, so the courts have said, is exclusively for their benefit.83

v. Sawyer, 4 Dill. (U. S.) 463; Young v. Wempe, 46 Fed. 354; Lease v. Barschall, 106 Fed. 762; Wheelock v. Kost, 77 Ill. 296, 300.

78 N. H. Act, 1846. In Missouri a stockholder's liability is expressly limited by constitution to the full amount subscribed. Gausen v. Buck, 68 Mo. 545; Schricker v. Ridings, 65 Mo. 208; Kansas Constitution, Art. XII, §2. Howell v. Manglesdorf, 33 Kan. 194, 199.

79 Zang v. Wyant, 25 Colo. 551; Erickson v. Nesmith, 46 N. H. 371, citing Allen v. Sewall, 2 Wend. (N. Y.) 327; Moss v. Oakley, 2 Hill (N. Y.) 265; Bailey v. Bancker, 3 Hill 188; Corning v. McCullough, 1 N. .Y. 47; Harger v. McCulloch, 2 Denio (N. Y.) 123; Abbott v. Aspinwall, 26 Barb. (N. Y.) 202; Southmayd v. Russ, 3 Conn. 52; Middletown Bank v. Magill, 5 Conn. 28; Marcy v. Clark, 17 Mass. 330; Thayer v. Union Tool Co., 4 Gray (Mass.) 75. See Moss v. Averell, 10 N. Y. 449.

80 Ibid.

81 U. S. Rev. Stat. §5151. Richmond v. Irons, 121 U. S. 27; King v. Pomeroy, 121 Fed. 287, 292. See Bolles on National Bank Act, §§176-202, and Supp. §§160-213.

82 Harvey v. Lord, 11 Biss. (U. S.) 144.

83 Ruher v. Dwiggins, 147 Ind. 238; Wright v. McCormack, 17 Ohio St. 86; Wincock v. Turpin, 96 Ill. 135; Farnsworth v. Wood, 91 N. Y. 308; Pfohl v. Simpson, 74 N. Y. 137; Zang v. Wyant, 25 Colo. 551; Minneapolis Paper Co. v. Swinburne Printing Co., 66 Minn. 378; Smith v. Huckabee, 53 Ala. 191; Strauss v. Denny, 95 Md. 690; Terry v. Little, 101 U. S. 216;

(g.) This double liability is outside the unpaid balance, if there be any, on one's stock; it is an additional sum equal to the par value of the same.84 Nor will a creditor's lack of knowledge concerning the full or partial payment of a bank's stock at the time of extending payment affect the liability of members for their additional liability.85

(h.) While interest may continue on the claim of a creditor against a bank after its failure,86 none accrues by the national banking law on an assessment until the date of the order. "Otherwise there would be no motive to pay promptly, and no equality between those who should pay then and those who should pay at the end of a protracted litigation."87 After that date by the federal rule interest begins to accumulate against those who refuse to heed the order.88 Among the state jurisdictions some courts follow the federal rule;89 others do not hold the stockholders for interest until their liability has been

Jacobson v. Allen, 12 Fed. 454; New Hampshire Sav. Bank v. Richey, 121 Fed. 956. See §21.

84 Zang v. Wyant, 25 Colo. 551; Pettibone v. McGraw, 6 Mich. 441; Root v. Sinnock, 120 Ill. 350; Lane's Appeal, 105 Pa. 49; McDonnell v. Ala. Gold Leaf Life Ins. Co., 85 Ala. 401; Smith v. Huckabee, 85 Ala. 401. 85 Sprague v. National Bank, 172 Ill. 149.

86 Zang v. Wyant, 25 Colo. 551, 561; Cumberland Lumber Co. v. Clinton Hill Lumber Co., 54 At. (N. J. Eq.) 452; Knowles v. Sandercock, 107 Cal. 629; Wells, Fargo & Co. v. Enright, 127 Cal. 669; McGowan v. McDonald, III Cal. 57.

87 Casey v. Galli, 94 U. S. 673, 677; Bowden v. Johnson, 107 U. S. 251; Davis v. Watkins, 56 Neb. 288.

88 Ibid.

89 Burr v. Wilcox, 22 N. Y. 551; Mahoney v. Bernhard, 45 App. Div. 499; affd. 169 N. Y. 589; Mason v. Alexander, 44 Ohio St. 318, 336; Taylor v. West Liberty Wheel Co., 9 Am. Law Rec. (Ohio) 28; Senn v. Levy, 111 Ky. 318; Cleveland v. Burnham, 64 Wis. 347, 360; Millisack v. Moore, 76 Mo. App. 528. The indebtedness covered by the double liability includes interest on the balances due depositors from the time of closing the bank to the payment of the last dividend. Parker v. Adams, 38 N. Y. Misc. 325; Richmond v. Irons, 121 U. S. 64. In Georgia interest may be recovered on the amount due by each stockholder from the date of filing the suit against him. Wheatley v. Glover, 54 S. E. 626. See McGowan v. McDonald, III Cal. 57.

fully determined.90 The federal rule is based on the sounder

reason.

(i.) There can be an assessment of fully paid stock only by positive law,91 which is valid.92 If therefore an assessment is imposed on the stockholders of a consolidated bank which has not been legally organized, it cannot be enforced.93

(j.) The double liability of a stockholder is only for the indebtedness of the bank; it does not include every species of liability growing out of official misconduct. It doubtless covers every liability based on contract; but no liability founded on tort.94 Suppose a bank had been subjected to a penalty for the neglect of its officers to pay its taxes, or make a report within a prescribed period, this would not be a debt for which the stockholders could be held within the statute.95 Furthermore, obligations given to another bank that has assumed its indebtedness, which have not been discharged, are included by the national statute.96

(k.) The law has no retroactive effect; and no by-law or stock certificate can affect its construction.97

(1) The liability is for the benefit of all the creditors. "This being the nature and character of the liability," says Chief

90 Munger v. Jacobson, 99 Ill. 349; Cole v. Butler, 43 Me. 401; Sackett's Harbor Bank v. Blake, 3 Rich. Eq. (S. C.) 225.

91 United States v. Stanford, 161 U. S. 413, 429, and cases cited; Buenz v. Cook, 15 Colo. 38; Chase v. Lord, 77 N. Y. 1; Slee v. Bloom, 19 Johns. (N. Y.) 456, 477; Coffin v. Rich, 45 Me. 507; Gray v. Coffin, 9 Cush. (Mass.) 192; French v. Teschemaker, 24 Cal. 518, 540; Enterprise Ditch Co. v. Moffitt, 58 Neb. 642; Wheatley v. Glover, 54 S. E. (Ga.) 626. See $2.

92 Boor v. Tolman, 113 Ill. App. 322. 93 Ibid.

94 Brown v. Trail, 89 Fed. 641. See Chase v. Curtis, 113 U. S. 452. A receiver of a national bank is not liable for damages sustained by a person on account of fraud practiced on him by the bank's officers in inducing him to purchase its stock. Lantry v. Wallace, 182 U. S. 536.

95 Miller v. White, 50 N. Y. 137.

96 Rev. Stat. §5151; Wyman v. Wallace, 201 U. S. 230, affg. 68 C. C A. 40.

97 Barnes v. Arnold, 45 N. Y. App. Div. 314; Hubbell v. Houghton, 86 Fed. 547, 549; Sibley v. Quinsigamond Nat. Bank, 133 Mass. 515, 520.

Justice Brickell, "no single creditor can be permitted to appropriate it to his satisfaction, to the exclusion of the other creditors, who are equal in right and equity to him."'98

(m.) Stockholders cannot be assessed for any loss caused by the receiver in making investments, or otherwise administering the estate.9%

99

(n.) An assessment on the estate of an insolvent stockholder is not entitled to preferential payment over the claims of other creditors of the estate.1

12. Legality of Statute Imposing or Removing Double Liability. A statute imposing double liability on the stockholders of a corporate bank, whose charter is subject to legislative amendment, violates no fundamental law. Nor has a single stockholder, who is unwilling to assume the liability, the right to demand its dissolution. But a majority would have the right to take such action.2 The law, however, cannot apply to past or existing indebtedness, only to that incurred after imposing the liability. On the other hand, a statute may be repealed,

98 Smith v. Huckabee, 53 Ala. 191, 196; Welch v. Sargent, 127 Cal. 72. Contra-Union Nat. Bank v. Halley, 104 N. W. (S. Dak.) 213; Buchanan v. Meisser, 105 Ill. 638, 643. In this case the court also declares that a voluntary payment to a creditor who has the right to sue and recover from the stockholder is valid. But he could not pay to a creditor that was a firm of which he was a member, as the firm could not maintain an action against him.

99 Lease v. Barschall, 106 Fed. 762.

I Beard's Estate, 7 Wy. 104.

2

Williams v. Nall, 108 Ky. 21; Sherman v. Smith, 1 Black (U. S.) 587; In re Empire City Bank, 18 N. Y. 199; In re Lee's Bank, 21 N. Y. 9; In re Reciprocity Bank, 22 N. Y. 9; Barnes v. Arnold, 23 N. Y. Misc. 197, 207, affd. 169 N. Y. 611; Hagmayer v. Alten, 36 N. Y. Misc. 59; Hagmayer v. Farley, 23 N. Y. App. Div. 426; McGowan v. McDonald, 111 Cal. 57; Bissell v. Heath, 98 Mich. 472; Meadow Dam Co. v. Gray, 30 Me. 547; Sleeper v. Goodwin, 67 Wis. 577; State v. Union Stock Yards State Bank, 103 Iowa 549. The individual liability of a stockholder in California for his proportionate share of the bank's indebtedness is created by the constitution. Art. 12, §3, and Civil Code §322; Reddington v. Cornwell, 90 Cal. 49; Jones v. Goldtree, 142 Cal. 383; also in Nebraska, Sec. IV. Art. 11 b.

3 Barnes v. Arnold, 23 N. Y. Misc. 197, affd. 169 N. Y. 611; Hagmayer

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