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right to sue the stockholders. In other words, if he proves himself to be a creditor with a valid claim against the bank, he becomes a complainant by relation to the time of the filing the bill. This being so, it is not disputed that in October, 1876, the bar of the statute had not taken effect, even on the supposition that the statute applied.

In the case of In re General Rolling-stock Co., Joint-stock Discount Co.'s Claim, L. R., 7 Ch. 646, MELLISH, L. J., stated that in a case where the assets of a debtor are to be divided among his creditors, whether in bankruptcy or in insolvency, or under a trust for creditors, or under a decree of the Court of Chancery in an administration suit, "the rule is that everybody who had a subsisting claim at the time of the adjudication, the insolvency, the creation of the trust for creditors, or the administration decree, as the case may be, is entitled to participate in the assets, and that the statute of limitations does not run against his claim; but as long as assets remain unadministered, he is at liberty to come in and prove his claim, not disturbing any former dividend."

Mr. Daniel (1 Ch. Pr., [4th ed.], chap. 15, part 2, p. 643) states that "a decree for the payment of debts under a creditors' bill for the administration of assets is also considered as a trust for the benefit of creditors, and will in like manner prevent the statute from barring the demand of any creditor coming in under the decree. The creditors' demand however must not have been harred at the time when the suit was instituted; for, if the creditors' demand would have been barred by the statute before the commencement of the suit the statute may be set up. It is to be remarked upon this point that it has been held that it was the decree only which created the trust, and that the mere circumstance of the bill having been filed, although it might have been pending six years, would not take the case out of the statute, but according to the later decisions, it seems that the filing of the bill will operate by itself to save the bar of the statute, though the plaintiff by delay in prosecuting the suit may disentitle himself to relief." He also says (chap. 29, ¶ 1, p. 1210): "It may be observed here that where a person, not a party to the suit, carries in a claim before the master under the decree, the party represent

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ing the estate out of which the claim is made has the right to the benefit of any defense which he could have made if a bill had been filed by the claimant in equity or an action had been brought at law to establish such claim. Therefore as we have seen an executor, may, in the master's office, set up the statute of limitations as a bar to a claim by a creditor under the decree, provided such claim was within the operation of the statute before the dedecree was pronounced."

The authorities abundantly sustain the proposition, also that a creditor who comes in under and takes the benefit of a decree is entitled to contest the validity of the claim of any other creditor, except that of the plaintiff whose claim is the foundation of the decree. 2 Dan. Ch. Pr. chap. 29, § 1, p. 1210, note 4, and cases cited.

In Sterndale v. Hankinson, 1 Sim. 393, decided in 1827, it was stated by Vice-Chancellor LEACH that "every creditor has to a certain extent an inchoate interest in a suit instituted by one on behalf of himself and the rest, and it would be attended with mischievous consequences to estates of deceased debtors if the courts were to lay down a rule by which every creditor would be obliged either to file his bill or bring his action." It is supposed by counsel for the appellants that the authority of this case is shaken by what was said by JESSEL, M. R., in his decision of In re Greaves; Bray v. Tofield, 18 Ch. Div. 551. It is true that in this case the master of the rolls said that creditors had better not rely upon that decision for the future; but he points out as the reason that at the time he was speaking (in 1881) bills in equity had been abolished in England, and that wherever it is an action to recover a debt upon a contract, the statute of James was binding upon the high court in every case in which it applies, and that it was no longer the practice, so far as personal estate was concerned, to bring an action by one creditor on behalf of others, because of a provision in the act of 1852, since the passing of which the practice had been abandoned of suing by one creditor on behalf of all, except in cases relating to real estate, as to which the section of the statute does not apply, unless it has been ordered to be sold or there is a trust or power of sale, and that therefore there were no longer any suits brought by any creditor, except

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for the payment of his own debt. In the present case the suit, although in the nature of a creditors' bill, is not a bill merely for the administration of the assets of an insolvent corporation. The is no fund formerly belonging to the corporation in court for distribution. It is a suit for the enforcement of a personal liability of the defendant stockholders to pay the debts of the corporation, in which the creditors are the complainants. Each creditor becomes a party to the suit, it is true, only when he appears to prove his claim. His right to proceed depends upon the fact of his being the owner of a valid claim against the corporation; but if he proves such a claim, then he does prove himself to be a creditor, and as such is entitled to come in under the decree, and has a right to be considered as a party complainant from the beginning by relation to the time of filing the bill. The beginning of the suit as between the creditor and the stockholder is the date of the filing of the bill, if during its progress and pendency he proves his right to be considered as a co-complainIt follows therefore that the statute sought to be applied in the present case ceased to run as against the complainants from the date when the bill was filed, in October, 1876, under which they subsequently established their right to come in as participants in the benefits of the decree. Whether or not the statute of limitations of Illinois would in any case operate to bar such a suit as the present, being a bill in equity in the Circuit Court of the United States, founded upon an obligation arising under an act of Congress, is a question which we are therefore not called upon to consider and decide.

ant.

Another assignment of error is peculiar to the appeal of the administrator de bonis non of William H. Adams, deceased. William H. Adams in his life-time was one of the defendants in the amended bill of 1876, and at the time of the suspension of the bank a stockholder to the extent of two hundred and forty shares. He died June 6, 1882, during the pendency of the suit, which stands revived as against his administrator de bonis non. The administrator contended that the personal liability of his intestate did not survive as against the administrator, and that therefore no decree could be rendered against him subjecting the estate of Adams in his hands for administration. The judicial decisions

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more directly relied upon by the appellant in support of this contention are those of Dane v. Dane Manuf'g Co., 14 Gray, 488; Bacon v. Pomeroy, 104 Mass. 577; Ripley v. Sampson, 10 Pick. 370; Bangs v. Lincoln, 10 Gray, 600; Gray v. Coffin, 9 Cush. 192. These cases however so far as they are in point, are based upon the particular language of the statutes of Massachusetts, materially differing from that contained in the National Banking Act. Under that act the individual liability of the stockholders is an essential element in the contract by which the stockholders became members of the corporation. It is voluntarily entered into by subscribing for and accepting shares of stock. Its obligation becomes a part of every contract, debt and engagement of the bank itself, as much so as if they were made directly by the stockholder instead of by the corporation. There is nothing in the statute to indicate that the obligation arising upon these undertakings and promises should not have the same force and effect, and be as binding in all respects, as any other contracts of the individual stockholder. We hold therefore that the obligation of the stockholder survives as against his personal representatives. Flash v. Conn, 109 U. S. 371; Hobart v. Johnson, 19 Blatchf. 359; 8 Fed. Rep. 493. In Massachusetts it was held, in Grew v. Breed, 10 Metc. 569; 46 Am. Dec. 687, that administrators of deceased stockholders were chargeable in equity, as for other debts of their intestate, in their representative capacity.

The next assignment of error to be considered arises upon the separate appeal of Charles Comstock, who is charged by the decree with an assessment upon one hundred and fifty shares of the capital stock of the bank standing in his name as owner at the time of its suspension. In his answer, which is under oath as called for, Comstock "admits that at the time of the said suspension he was the owner and holder of certain shares of capital stock thereof; that previous to about in the year 1872, he was the owner of one hundred and fifty shares of said stock; that on or about the 8th day of February, 1873, this defendant sold, assigned and delivered fifty shares of the said stock to Ira Holmes, and on or about June, 1873, this defendant sold, assigned and delivered fifty other shares of said stock to Preston C. Maynard; that he endeavored repeatedly to have said

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stock transferred on the books of the bank, but that said Maynard refused to allow said stock to be so transferred, although he had before promised to have the same transferred; that at the time of the said several sales of stock as aforesaid the said banking association was carrying on its regular business of banking, and was in fact solvent and fully able to pay its debts, and, as he is informed and believes, not indebted to any of the present creditors of said bank; that afterward, on or about the 23d day of September, 1873, this defendant sold, assigned and delivered to the said Ira Holmes his other fifty shares of stock in said bank with other property, receiving in payment therefor, and for the other property sold to said Holmes at the same time, certain promissory notes of one William Patrick, payable to the said Ira Holmes, and was secured with certain other notes by mortgage from said William Patrick to said Ira Holmes, which said notes and mortgage have proven to be of little value to the defendant, and in consequence of the incumbrances and taxes upon said property and the expense of foreclosing, and how much of the value of said notes and security should be attributable to the consideration of this sale of said stock, this defendant is unable to state; but he insists that at the time of said sale to said Holmes this defendant was informed and believed said bank was able to pay all its debts in full, and the consideration received by him was paid by said Holmes out of his individual property, and not from the assets or property of said bank."

The stock-books introduced on the part of the complainant show that fifty shares of this stock were transferred September 23, 1873, fifty more on September 24, 1873, and fifty more were canceled on the last date; and the testimony of Holmes is that, as to the last fifty shares, they must have been transferred at the same time. The transfers in each case were to Ira Holmes. It is found by the decree of July 23, 1883, that the bank became insolvent and suspended payment September 23, 1873, and went into voluntary liquidation on September 26, 1873. The resolutions of the shareholders of the bank instructing the directors to put the bank into voluntary liquidation, were passed at a meeting held on September 25, 1873. One of the resolutions is as follows: "That this bank, in its endeavors to continue business through the ex