99 Ill. 284 | Ill. | 1881
delivered the opinion of the Court:
Bill was filed on the equity side of the Superior Court of Cook county, by certain creditors of the Franklin Bank, against subscribers to the capital stock of the corporation, to collect and distribute among the creditors the unpaid subscriptions.
It is alleged, among other things, that the bank ceased to do business, it was declared a bankrupt, and an assignee in bankruptcy was appointed, by decree of the District Court of the United States for the Northern District of Illinois; that complainants’ claims Avere duly proved in bankruptcy against the bank, but only 15 per cent of the amount due thereon has been paid; that the assets of the bank have been exhausted, and there is no possibility of a payment of their claims by the assignee in bankruptcy; that the assignee in bankruptcy never brought suit, either at law or in equity, against the subscribers to the capital stock of the corporation; and that the facts alleged in the bill did not come to the knowledge of the assignee in bankruptcy until after the expiration of two full years from the time of his appointment.
The Superior Court sustained a demurrer to the bill, and this ruling was sustained by the Appellate Court for the First District, on appeal to that court. The case comes here by appeal from the last named decision.
There is no claim that the object of the bill is to enforce penalties in favor of stockholders, imposed by the charter, and which could not form assets of the bank; and if such claim Avere made, on the authority of Wincock et al. v. Turpin, 96 Ill. 135, it could not be sustained, since, in that event, the suit Avould haAre to be at Lav, by the individual creditors, each for himself.
But the unpaid subscriptions sought to be collected were a part of the assets of the corporation, and hence they passed by the decree in bankruptcy to Harvey, the assignee, and he alone was, thereafter, the party in whose name suit must have been brought for their collection. Sanger v. Upton, 1 Otto, (91 U. S.) 56; Erwin v. United States, 7 id. (97 U. S.) 392; Glenny v. Langdon, 8 id. (98 U. S.) 20.
ISTor does the- fact that the assignee has failed (for whatever cause it may have been) to bring the suit within two years from the date of his appointment, give creditors the right to bring such suits in their own names. Trimble v. Wood-head, 102 U. S. (12 Otto,) 647.
The demurrer was, therefore, properly sustained, and the decree of the Appellate Court is affirmed. •
Decree affirmed.