74 F. 29 | 1st Cir. | 1896
This is an appeal from a decree dismissing, after a hearing on demurrers, a bill in equity to.enforce alleged rights of action based on the statutes of Maine, a sufficient comprehension of which is given by the following, found in the Revised Statutes of 1883 (chapter 46):
“Sec. 45. The capital stock subscribed for any corporation is declared to be and stands for the security of all creditors thereof; and no payment upon any subscription to or agreement for the capital stock of any corporation shall be deemed a payment, within the purview of this chapter, unless bona fide made in' cash, or in some other matter or thing at a bona fide and fair valuation thereof.
-“Sec. 46. No dividend declared by any corporation from its capital stock or in violation of law, no withdrawal of any portion of such stock directly or indirectly, no cancellation or surrender of any stock, and no transfer thereof in any form to the corporation which issued it, is valid as - against any person who has a lawful and bona fide judgment against said corporation, based upon any claim in tort or contract, or for any penalty, or as against any receivers, trustees, or other persons appointed to close up the affairs of an insolvent corporation.
“Sec. 47. Any person having such judgment, or any such trustees, receivers or other persons appointed to close up the affairs of an insolvent corporation, may, within two years after their right of action herein given accrues, commence an action on the case or bill in equity without demand or other-previous formalities, against any persons (if a bill in equity, jointly or severally, otherwise severally) who have subscribed for or agreed to take stock in said corporation and have not paid for the same * * * and. in such action they may recover the amount of the capital stock so remaining unpaid or withdrawn, not exceeding the amounts of said judgments or the deficiency of the assets of such' insolvent corporation. * * *”
We need notice only one point. The bill sets up no special ground of equitable cognizance.- It does not require any accounting, and, therefore, presumably the only remedy is at law. Auer v. Lombard (decided by this court) 72 Fed. 209, 211. The alleged liability of the stockholders creates no trust as towards the complainant. Hollins v. Iron Co., 150 U. S. 371, 385, 14 Sup. Ct. 127. So that, independently of the statutes of Maine, there could be no jurisdiction in equity. Those statutes cannot affect the jurisdiction of the federal courts in that particular. This was clearly stated in Van Norden v. Morton, 99 U. .S. 378, and has been many times reaffirmed in the supreme court. It was fully restated in Wehrman v. Conklin, 155 U. S. 314, 15 Sup. Ct. 129. The qualification given in Bardon v. Improvement Co., 157 U. S. 327, 330, 15 Sup. Ct. 650, and in Cowley v. Railroad Co., 159 U. S. 569, 583, 16 Sup. Ct. 127, does not reach the case at bar. In Kennedy v. Gibson, 8 Wall. 498, 505, there is a dictum that a receiver of a national bank may enforce a stockholder’s liability by a bill in equity where less than the par of his stock is demanded; but no bill of that kind has ever been sustained by the supreme court, and the dictum cannot be supported unless an ac
