Stanton, Receiver, v. Wilkeson. thereof, in addition to the amount invested in such shares." The provisions of the acts of 1863 and 1864 in this respect do not differ in substance. The stockholder is to be individually liable, to the extent of the amount of his stock, at its par value, in addition to amount of the stock. The limit in amount or extent is the par value of his stock. Within this limit each stockholder is to be liable equally and ratably; that is, no one is to be assessed a larger percentage than any other one on the par value of his stock, and, when one is assessed a given percentage, every other one shall be assessed a like percentage. Each is to be liable in respect only of his own stock, and because he is a stockholder, and up to the full par value of his stock; but he is not to be liable in respect of the stock of any other stockholder, or because any other person is a stockholder, or beyond the full par value of his stock. This is a several liability. The stockholders are not jointly liable. There is no contribution among them provided for, whereby one of them has any right to call any other one directly to account, in contribution, in respect of any sum paid in discharge of the statutory liability. The proceedings are not taken by first ascertaining how much is necessary to be collected, and then apportioning that amount among the stockholders, and then collecting, by suit or otherwise, the sum so apportioned. The Comptroller is to make an assessment, by determining how much each stockholder must be liable for, in a percentage on the par value of his stock. These views of the statute are those determined by the Supreme Court in Kennedy v. Gibson, 8 Wall. 498, Thomp. N. B. Cas. 17, which case is approved in Sanger v. Upton, 1 Otto, 56. There is nothing in the case of Pollard v. Bailey, 20 Wall. 520, that is in conflict with these views. That was an action at law by a creditor against a stockholder in a State bank, to recover the amount of the creditor's debt, under a statute which declared that individual stockholders in the bank should be "bound respectively for all the debts of the bank, in proportion to their stock holden therein." In delivering the opinion of the court in that case, Chief Justice WAITE points out, that by the provisions of the statute in that case, each stockholder is bound for the debts in proportion to his stock; that his liability is not limited to the par value of his stock, and he is not Stanton, Receiver, v. Wilkeson. bound absolutely for the payment of the full amount of that; that he must pay a sum which shall bear the same proportion to the whole indebtedness that his stock bears to the whole capital, and is not required to pay more; that no stockholder is liable for more than his proportion of the debts; that such proportion can be ascertained only upon an account of the debts and stock, and a pro rata distribution of the indebtedness among the several stockholders; that the proper action in such case is one in equity, to state an account and make distribution; and that the case is different from one where the statute provides generally that all stockholders shall be individually liable for the payment of the debts. The latter is the liability prescribed by the statutes in relation to National banks, the liability being limited, however, to the par value of the stock. The court manifestly did not intend that the decision in Pollard v. Bailey should apply to the liability of stockholders in National banks. The suggestion that where there is an enforced contribution of too much, from stockholders, there is no provision for refunding it, is not a sound one. In addition to the fact that in such a case, the stockholders would have a right to enforce the refunding by suit, the provision of section 50 of the act of 1864, now section 5236 of the Revised Statutes, is not open to the criticism made upon it, that it only directs that the surplus of the proceeds of the assets of the bank shall be paid to the stockholders, and does not provide for the payment back to them of surplus money collected in enforcement of their individual liability. If it were necessary, the money collected from stockholders might fairly be considered as the proceeds of assets of the bank, for the purpose of the statute; but at all events, as the statute provides that the money to be made by enforcing the liability of stockholders is to be paid to the Treasurer, subject to the order of the Comptroller, and that the Comptroller is to make dividends of such money and other money, and that the remainder of the proceeds, after paying the debts, shall be paid to the shareholders, it is entirely clear that such proceeds include surplus money collected from stockholders. It is not necessary now to anticipate or decide any question in Stanton, Receiver, v. Wilkeson. regard to a second assessment. No considerations growing out of the same properly affect any question arising on this demurrer. The cases of Kennedy v. Gibson and Sanger v. Upton decide that the Comptroller is vested with authority to determine the extent to which the individual liability of stockholders is to be enforced. This decision was followed by the District Court for the Eastern District of New York, Strong v. Southworth (post, p. 172). The complaint alleges, that the assets of the bank are insufficient to pay "its debts and liabilities," and that in order to provide for paying the same, it is necessary to enforce the personal liability of the stockholders; and that the Comptroller has determined that such assets are insufficient to pay such "debts and liabilities," and that it is necessary, in order to pay "the same," to enforce to the extent named in the complaint the individual liability of the stockholders. The criticism is made, that the liability imposed by the statute is for all "contracts, debts and engagements" of the bank, and that the statute (section 5234) provides that such individual liability may be enforced only where it is ❝necessary to pay the debts" of the bank, and not for the purpose of paying "liabilities of the bank." It is a sufficient answer to this criticism to say, that the complaint, after the foregoing averments, goes on to set out in hæc verba the determination or assessment made by the Comptroller, and that in that, it is stated that he determines that the assessment is necessary to pay the duly proven debts of the bank. Moreover, there could have been no intention, by the language of section 5234, "to pay the debts," to narrow the individual liability imposed by section 5151, which is for all "contracts, debts and engagements," and the word "liabilities" imports no broader meaning than the word "debts" in section 5234, when the word "debts" in that section must neces sarily be held to include the "contracts, debts and engagements' mentioned in section 5151. The demurrer is overruled, with costs, with leave to the defendant to answer in twenty days, on payment of costs. In re Duryea. IN RE DURYEA. (17 National Bankruptcy Register, 495.) Forum-question of power to lend money on mortgage. An assignee in bankruptcy should be permitted to litigate in the Federal court a question involving the powers of a National bank to make loans of a particular character on real mortgage, and not remitted to the State court. Norwood & Coggeshall, for Bowery Savings Bank. CHOATE, J. In this case several motions have been submitted together. The bankrupt owned two pieces of real estate in the city of New York, one in Cherry street, the other in East Thirtyninth street, near Fifth avenue. The Cherry street property is subject to a first mortgage held by the Bowery Savings Bank, on which there is due about nine thousand dollars, and to a second mortgage for eight thousand eight hundred dollars, held by the Chatham National Bank. The first mortgage is not contested by the assignee. Foreclosure proceedings have been commenced by the Bowery Savings Bank, and have been restrained by the injunction of this court. The second mortgage is contested by the assignee as invalid, as made in violation of the provisions of the National Banking Laws. They are also liens for judgments against the bankrupt for about four hundred dollars. The value of the property is estimated at about sixteen thousand dollars. The Thirtyninth street property is subject to: taxes, one thousand one hundred and fifty-five dollars; judgment, four hundred dollars; a first mortgage to the Seaman's Savings Bank for eight thousand In re Duryea. five hundred and sixty dollars; a second mortgage to J. S. Young for five thousand three hundred and eighty dollars, neither of which is contested, and a third mortgage to the Chatham National Bank for seven thousand dollars and interest, which is contested by the assignee on the ground stated above. Young and the Chatham National Bank have commenced actions for foreclosure in the State courts. The assignee now moves for leave to sell at public auction the Cherry street property. This motion is opposed by the Bowery Savings Bank and the Chatham National Bank. The Bowery Savings Bank and the Chatham National Bank and Young move to dissolve the injunctions restraining them from prosecuting their foreclosures. The Bowery Savings Bank moves to modify the injunction, so as to allow it to proceed at least to the entry of judgment. Upon the facts shown I am satisfied that the injunctions against the mortgagees, restraining their suits in foreclosure, should not be dissolved. If the mortgages of the Chatham National Bank arc held invalid, there is a considerable interest in the Cherry street property in the bankrupt's estate, and in the Thirty-ninth street property there may be such an interest after the admitted mortgages and other liens on those properties are satisfied. What the amount of that interest is in both cases depends upon the determination of the question of the validity of the mortgage held by the Chatham National Bank, a question involving the powers of National banks to make loans of a particular character upon mortgage. The question is one on which the assignee should be permitted to litigate in the Federal court, and he should not be sent into the State courts to try this question on the distribution of surplus moneys in a foreclosure suit, or in a suit brought by the party holding the alleged invalid mortgage in the State court. |