109 F. 36 | U.S. Circuit Court for the District of South Carolina | 1901
The demurrer rests upon several grounds which seem meritorious, but, that which raises the question of jurisdiction being held to be decisive, it alone need be considered.
By the original national banking act (section 5151, Rev. St.), it is declared that “the shareholders of every national hanking association shall he held individually responsible, equally and ratably, 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 to the amount invested in such shares.” Section 5220 of the Revised Statutes provides that “any association may go into liquidation and be closed by a vote of its shareholders owning two-thirds of its stock.” Section 5234, Rev. St., provides that the comptroller of the currency, in cases of default therein mentioned, may appoint a receiver, who shall take possession of all the assets of the association, collect all debts, and, if necessary, pay the debts of such association and enforce the individual liability of stockholders; and in Kennedy v. Gibson, 8 Wall. 499, 19 L. Ed. 476, upon a hill filed by a receiver against the stockholders, it was held that creditors must seek their remedy through the comptroller in the mode prescribed by the statute; that they could not proceed directly in their own name against the stockholders or debtors of the hank; that action on the part of the comptroller was indispensable whenever the
• “That whenever any national banking association shall have gone into liquidation under the provisions of section 5220, the individual liability of the shareholders provided by section 5151, may be enforced by any creditor of such association by bill in equity in the nature of a creditor’s bill, brought by such creditor on behalf of himself and of all other creditors of the association against the shareholders thereof, in any court of equity for the¡ district in which such association may have been located or established.”
■ .The act of June 30,1876, has been frequently amended in other sections, but it does not appear that section 2 has ever been altered or amended. The responsibility of shareholders is not an ordinary contractual liability flowing from the acquisition of the shares, but a liability arising by force of the statute. The statute does not make the stockholders liable to creditors, but they are liable for contracts, debts, and engagements of the bank. Under the original act, it was for the comptroller to decide when it was necessary to institute proceedings, and whether the whole or a part, and, if only a part, how much, should be-collected. Those questions were referred to his judgment and discretion, and his determination was conclusive; and, as before stated, the supreme court held in Kennedy v. Gibson that action on his part was indispensable. While this liability is not strictly an asset of the bank, and could not be enforced for its benefit as a corporation, yet the intention of congress, as manifested by the act of June 30, 1876, was evidently to treat it as a means of creating a fund to be applied with and in aid of the assets of the bank in all cases of voluntary, as of involuntary, liquidation. The only qualification .of the liability of the stockholder was that he should be responsible equably and ratably. Any proceeding, therefore, to enforce this liability by means of a creditors’ bill, should be such as would enable the court, through the methods and machinery of a court of equity, to ascertain for what the shareholders ought to be made liable, to whom, and in what proportion, as respects each other; and the act of June 30, 1876, which provides the remedy, requires that ■this creditors’ bill should be brought “in any court of the United States having original jurisdiction in equity for the district in which gaid association may have been located or established.” The statute does not give to the trustee or any other representative of the stockholders of a national bank in voluntary liquidation any authority to enforce this liability. Such trustee is only the agent of the stockholders for the purpose of liquidating the affairs of the bank. The right of the creditors to enforce this liability in proceedings inde