Year: 1876

vofving the liability Of stockholders growing Of
the suit OF Edwin l. Stanton, Receiver OF the First
National Bank OF Washington, d. c., against Catharine
G. wilkinson The following is the opinion:-


The plaintiff is the receiver OF national bank which
was organized under the act Of February 25 1868 The
defendant at the tmo the bank suspended was the
holder OF 100 shares OF its capital stock OF the par
value OF $40, ,000 This suit is brought to
complaint Is demurred to- The first ground of de-
murrer is that the plaintiff has no capacity TO sue.
1t rs contended that the code OF procedure
OF New York forbds the bringing OF this
suit by the plaintiff II is contended that the receiver
is not the real party in interest and not trustee OF
express trusts and Is not expressly authorized by
statute The nftieh section of the act OF 1854
(now section 1924 OF the Revised Statutes provides
that the receiver shall take possession OF all debts


duesand claims belonging TO Il and may sell all prop


erty Of the bank, and may, II necessary to pay the
the stockholders The is required ''to pay
all money made 10 the Treasurer OF the United
States subject 20 the order of the Comptroller and


to make report TO the Comptroller of all his acts and
proceedings II is quite plain from these provisions
that the receiver and he alone is authorized TO sue,
either in his own in the name OF the bank for
his collect the assets OF the bank and to
the individual liability of the stockholders
No such authority is given to the Comptroller.
No money be made by any collection of or
by any enforcement OF the individual liability of stock
holders, unless 1t is made by the receiver and the
statute contemplates that he shall make it, and does
contemplate that any else shall make IL His
right sue collect debts due to the bank and his
right to TO enforce the individual liability of
holders rest upon the provisions OF law and both
of these rights have been sustained by abundant ju
dcial authorities In the present the power Of
the plaintiff TO s confined by and grows of the
provisions of section 234 OF the Revised Statutes II
is also objected that this Court has no Jurisdiction OF
this suit IL provided by section 563 OF Revised
Statutes that the district shall have jurisdiction
'of all suits at common law brought by the United
States, by any officer thereof authorized by law
20 sue" This is suit at common law, as
distinguished from suit in equity, and the
by law TO sue The remaining question
rs whether the receiver is an onicer Of tho United
States II has been held by the Supreme Court IN the
United States VS. Hartwell 6 Wallace, 1851 that
clerk appointed by Assistant Treasurer ofthe United
States pursuant TO statute authorizing such appoint
ment with prescribed salary and whose tenure OF
Office would not be affected by the vacation of Office by
the Assistant Treasurer and whose duties although
such his superior should prescribe continuing
and permanent is an officer within the meaning of the
SubTreasury Act and subject 10 the penalties pre-
scrbed by il for the misconduct OF officers receiver
of national bank OF the United States the public
service OF the United States. He is ap
pointed pursuant to law Vacation of Office
cevership His duties continuing and permanent.
In only one section s it enacted that the ap
pointment OF the receiver shall be made by the Comp


eer, with the concurrence OF the Secretary OF the
Treasury But this Is implied, and when the Comptro
Ter appoints the concurrence approval
appreciation OF the Secretary OF the Treasury Is to be
presumed till the contrary appears Tor the Comptroller
Is required TO perform his duties under the general
direction OF the Secretary OF the Treasury In United
States VS., Hartwel II held that the appointment
of the Assistant Treasurers clerk by that officer,
with the apprQbaton of the Secretary OF the Treasury
constituted an appointment by the head OF depart
ment within the meaning Of the provision Of the
constitution (article 2 section o. that Congress may
by law vest the appointment Of such inferior officers
as they think proper In the heads OF the depart
mentA This point has been decided in the
way by the District Judge OF the Eastern District
of New York, in Platt Benedict q Benedict, 303),
and entirely in his views. 1t is further OBJ


eeed that the proper remedy Of the plaintiff is not by
separate suits OF against individual stockholders,
but by suit equity The view urged is that II the
sixty per assessed in this shall out it
be all collected TO be than is necessary there Is
provision OF law for reundIng IT, and that there
insovent stockholders who cannot pay the sixty
per cent another assessment may be sought to be
made on stockholders who can pay and thus they be
compelled perhaps TO pay more than their proper pro-
portion Of the debts The individual liability sought
be enforced in this suit that imposed by section IL
of the OF 1864 section s, lbl OF the Revised
Statutes, as well as that imposed by the act OF 1853,
The liability imposed by section IL Of the act
OF 1868 in these words;-''For all debts
contracted by such association for circulation deposits
otherwise, each stockholder shall be liable to the
amount al their par value OF the shares held by him
The act OF lS64 and the revised that
shareholders shall be held individually responsible
equally and raaoy and not one for another, for all
contracts debts and engagements OF such association
TO the extent of the amount OF their stock therein at
the par value thereof in addition amount invested
In such shares" The provisions OF the Of 1868
and 1864 do differ In substance The shareholder
is 10 be individually liable TO the extent Of tho
Of Of his his stock & at IT'S par value d in addition m,,
amount extent is the par value Of his stock.
within this limit each stockholder Is TO be liable
~


larger percentage than any other the par value
of his stock and when Is assessed given percent
age other shall be assessed like percentage.
zach is to be liable only In respect Of his Eock,
and up the full par value Of his stock but he is not
10 be liable respect Of the stock Of any other stock
holder because any other person stockh khodor
beyond the full par value OF hts stock. This Is sew
cral liability There rs no contribution among them
provided for whereby one OF thcm has any right to
call any other directly to account in contribution,
IN respect OF any sum paid IN discharge OF the
statutory liability. The proceedings are not
lax hv nreta ix-u
TO be collected aud then apportioning that
amount among the stockholders and then collecting
by suit or otherwise the precise sum so apportoned.
The Comptroller is to make ASSESSMENT by deter.
mining how much each siockholder must be liable for
IN percentage the par value Of his p)ck. These
views OF the statute are those determined by the SUI
preme Court IN Kennedy Gibson Is Wallace, 4gS),
winch case IS approved in Sawyer vs. Upton Is Chicago
Legal News, ss There - nothing in the case ofPol
lard vs. Bailey GO Wallace 500 that IN conflict with
these views The Court manfestly did not
intend that the decision should apply 10
the liability OF stockholders In national 6snks
The suggestion that where there is enforced
contribution OF TOO much from stockholders
there is provision for reiundng it is not sound
In addition TO the fact that IN such case the
stockholders would have right enforce the refund
1854 section $3.50 Of the Revised Statutes is
not open TO the criticism made upon it iha, only d.
that the surplus OF the proceeds OF the assets OF
the bank shall be paid TO the stockholders and does
provide for the payment back 70 them of surplus
moneys collected in enforcement OF their individual
Liabilities II u were necessary the money collected
from stockholders might fairly be considered the
OF assets OF the bank Tor the purpose OF the
statute but at all events the statute provides that
the money TO be made by enforcing the liability OF
stockholders is to be paid TO the Treasurer subject
10 the order Of the Comptroller, and that the
Comptroller is to make dividends Of such money and
money and that the remainder Of the proceeds
after payment OF the debts shall be paid the share
holders u entirely clear that such proceeds include
surplus money collected from stockholders IL is DOS
necessary now to anticipate any question In regard TO
= second assessment No considerations growing out
OF The properly anect any question arising this
demurrer The cases Of Kennedy vs. Gibson and
Sawyer vs. Upton decide that the Comptroller Is
vested with authority 10 determine the extent TO
which the individual liability OF stockholders
Is 70 be enforced This decision was followed
by the District Court for the Eastern district
uf New York in Strong Southvorth- The CON-
plant alleges that the assets Of the bank insuin
cient 70 pay iis debts and Liabilities and that In order
90 provide for paying the Is necessary to en-
force the personal liability Of stockholders; and that
the Comptroller has determined that such assets are
insufficient 10 pay such debts liabilities and
that necessary. In ordnr The nannn