*505
Judgment reversed on main bill of exceptions in each case; on cross-bill, affirmed.
By amendment petitioners alleged the date at which each of said stockholders became a shai’eholder; and further alleged, that certain of said shareholders had not transferred their stock, that the shares of certain others were subsequently transferred, but to whom and at what dates the books of the bank did not show, and which was unknown to petitioners, and that certain others at dates mentioned transferred shares to certain numbers to persons named. As to Downing the allegation was, that he became a shareholder to the extent of ten shares on January 22,-1890, and the same were subsequently transferred to F. E. Cunningham on August 25,1890; and as to the Chatham bank, that on September 3,1891, it became the holder of twenty shares which on March 30,1892, were transferred to Lloyd & Adams. Petitioners have diligently sought for information from the records of the bank; and the foregoing is the best information that can be had. In all cases where transfers are alluded to, the same were made without complying with section 1496 of the code, and said parties are liable and remain stockholders as to third parties; and as to these creditors and all other parties who may join with them, said parties are, since the date of becoming shareholders in the bank and up to this date, stockholders therein and liable as such. Plaintiffs attach a copy of the account of each of them with the bank, giving dates of deposit, interest, amounts deposited, amounts withdrawn with dates of withdrawals, and balances.
The demurrer of Downing et al. was upon the following grounds : (1) No proper parties plaintiff. (2) No such community of interest between the plaintiffs as would enable them to maintain a joint action against said defendants. (3) No such privity of contract between plaintiffs and defendants as would enable plaintiffs to maintain their action. (4) No such community of interest in the subject of the suit as between the several defendants, as would entitle plaintiffs to join them therein; nor are all of said alleged stockholders who would be jointly liable with these defendants, according to plaintiffs’ petition, made parties defendant to the suit. (5) The declaration is insufficient in law, and alleges no such facts as would entitle plaintiffs to recover. (6) It appears from the face of the declaration that said cause of action, if any, is vested in the receiver of this court, as in the petition stated, and not in the several parties who appear as plaintiffs. (7) No action can be maintained in the premises by plaintiffs, either individually or collectively, until final decree making distribution of the assets of the corporation to such persons as may be, under such final decree, entitled thereto. (8) The declaration does not allege how, wherein, nor in what manner they are responsible to plaintiffs, or either of them, as stockholders of the corporation, nor at what time the debts of the several plaintiffs were incurred, nor what particular shares of stock were issued to these defendants or either of them, nor how nor wherein their possession of said shares so alleged to be held by them creates a liability as against them in favor of either of the plaintiffs. (9) It appears by the petition, that there is another suit pending in the superior court of said county, instituted prior to the filing of said petition, to determine the liability of the bank to the petitioners and its other creditors, and the value of its assets, in which prior suit a receiver was appointed, who now has in his hands the assets of said bank, and is administering the same under the order of said court for the benefit of the creditors of the bank; and until said suit is disposed of, the petition of plaintiffs will not lie against these defendants.
The Chatham Bank also demurred to the petition, and the demurrer was sustained on the ground that the petition as amended failed to show any cause of action against said bank. The grounds of this demurrer were, that the Brunswick State Bank is a necessary party defendant; that the legal representatives of the stockholders alleged to be dead are necessary pai-ties, and should be made parties before this defendant can be required to answer or plead further; that petitioners have not plainly, fully and distinctly set forth their respective causes of action, in this: each of them alleges himself to be a creditor of the bank in the sum set opposite his name, respectively, upon cash deposit, but nowhere in the petition does it appear when they made said cash deposits, or how much of the amounts thus stated were deposited at any specified time, nor is there any itemized bill of particulars showing the account of each of petitioners with said bank; that none of petitioners give the dates, respectively, at which their debt was created, nor do they allege in the petition that this defendant was a stockholder of the bank when said debt or the debts of either of them wure created; that the allegations in paragraph eight of the petition are indefinite, uncertain and ambiguous, and it is impossible to tell therefrom to what extent said shares of stock, and especially the shares alleged to be owned by this defendant, are sought to be held liable, or what number of stockholders, or the number of shares, or the time when they were liable; there is no allegation as to the time of transfer of any such shares, and said paragraph recites conclusions and inferences but does not state facts; and that the petition cannot be maintained independently of tile pending suit under which the Brunswick State Bank was placed in the hands of a receiver, the purpose of which is to marshal the assets and debts of said bank.
Goodyear & Kay, for plaintiffs. Atkinson, Dunwody & Atkinson and Lester & Ravenel, for defendants.