Stanton, Receiver, v. Wilkeson.

had in causing it to be made was to conceal his ownership, and thus, if possible, escape all statutory liability. Such being the case, I am unable to see how he can occupy any different position from what he would if the stock had been taken directly from his own name on the books and put in that of Elston. He is still the real owner, with Elston as his agent specially authorized to hold for him the legal title. Every principal is responsible for the obligations of his agency. The debt of the agent is the debt of the principal, and always recoverable from the principal. By the rules of law which govern the relations of principal and agent, the registry on the books in the name of Elston was, as between Stevens and Elston, in legal effect the same as a registry in the name of Stevens. The obligations which Elston assumed by reason of such registry were the obligations of Stevens.

Assuming then, as I must for the purposes of this case, that the facts were as they are claimed by the plaintiff to have been, I cannot reach any other conclusion than that Stevens, the decedent, was in law a "shareholder" of the bank at the time of its failure, and as such, liable in this action. It was error, therefore, to direct a verdict for the defendant.

The judgment of the District Court is reversed, and the cause remanded for a new trial.

Receiver

STANTON, Receiver, v. WILKESON.

(8 Ben. 357.)

-power to sue in his own name - mode of enforcing assessments.

A receiver of a National bank is a Federal officer, and may sue in his own name to enforce assessments against stockholders, and for that purpose he may bring separate actions at law against the several stockholders.* (Circuit Court, Southern District of New York.)

SUIT

for an assessment.

The opinion states the case.

Man & Parsons, for plaintiff.

George Gray and Henry Stanton, for respondent.

*To same effect, Bailey, Receiver, v. Sawyer, ante, p. 154.

Stanton, Receiver, v. Wilkeson.

BLATCHFORD, J. The plaintiff is the receiver of a National bank, which was organized under the act of February 25th, 1863. 12 U. S. Stat. at Large, 665. The defendant, at the time the bank suspended, was the holder of 100 shares of its capital stock, of the par value of $10,000. This suit is brought to recover an assessment of 60 per cent, or $6,000 thereon. The complaint is demurred to.

The first ground of demurrer is, that the plaintiff has no capacity to sue. It is contended that, as section 721 of the Revised Statutes provides that "the laws of the several States, except where the Constitution, treaties or statutes of the United States otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply," the Code of Procedure of New York forbids the bringing of this suit by the plaintiff. The sections of the Code which are referred to are section 111, which provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113; and section 113, which provides that a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. The plaintiff was appointed receiver by the Comptroller of the Currency on the 19th of September, 1873, under the provisions of section 50 of the act of June 3d, 1864. 13 U. S. Stat. at Large, 114. It is contended that the receiver is not the real party in interest, and is not a trustee of an express trust, and is not expressly authorized by the statute to sue. The 50th section of the act of 1864 (now section 5234 of the Revised Statutes) provides that the receiver shall take possession of all the assets of the bank and collect all debts, dues and claims belonging to it, and may sell all the property of the bank, and may, if necessary to pay the debts of the bank, "enforce the individual liability of the stockholders." The receiver is required to " pay over all money so made to the Treasurer of the United States," subject to the order of the Comptroller, and to make report to the Comptroller of all his acts and proceedings. It is quite plain, from these provisions, that the receiver and he alone is authorized

Stanton, Receiver, v. Wilkeson.

to sue, either in his own name or in the name of the bank for his use, to collect the assets of the bank and to enforce the individual liability of the stockholders. No such authority is given to the Comptroller. No money can be made by any collection of assets, or by any enforcement of the individual liability of stockholders, unless it is made by the receiver, and the statute contemplates that he shall make it, and does not contemplate that any one else shall make it. No one else is required to pay over to the Treasurer any money so made, and no provision is made for the paying over to the receiver, by any other person, of any money so made. Hence it follows that the money which the receiver is to pay over, so far as it is made by collections by suit and enforcement by suit of the individual liability of stockholders, can come into the receiver's hands only through suits brought by himself in his own name or in the name of the association for his use. He is therefore authorized to sue in his own name. His right to sue to collect debts due to the bank, and his right to sue to enforce the individual liability of stockholders, rest upon the same provisions of law, and both of those rights have been sustained by abundant judicial authority. Kennedy v. Gibson, 8 Wall. 498; Thomp. N. B. Cas. 17; Bank of Bethel v. Pahquioque Bank, 14 id. 383, 401; Thomp. N. B. Cas. 77; Bank v. Kennedy, 17 id. 19; Thomp. N. B. Cas. 87.

I do not intend to intimate that the law of the State applies to this case, in respect to the capacity of the plaintiff to sue, because section 721 of the Revised Statutes makes the State laws applicable as rules of decision, in trials at common law, in the Federal courts, only where it is not otherwise provided by Federal enactment. In the present case, the power of the plaintiff to sue is conferred by, and grows out of, the provisions of section 5234 of the Revised Statutes.

It is also objected that this court has no jurisdiction of this suit. It is provided, by section 563 of the Revised Statutes, that the District Courts shall have jurisdiction "of all suits at common law brought by the United States, or by any officer thereof, authorized by law to sue." This is a suit at common law, as distinguished from a suit in equity, and the receiver is, as we have

Stanton, Receiver, v. Wilkeson.

seen, authorized by law to sue. The remaining question is, whether the receiver is an officer of the United States.

It has been held by the Supreme Court, in United States v. Hartwell, 6 Wall. 385, that a clerk appointed by an assistant treasurer of the United States, pursuant to a statute authorizing such appointment, with a prescribed salary, and whose tenure of place would not be affected by the vacation of office by the assistant treasurer, and whose duties, although such as his superior should prescribe, were continuing and permanent, is an officer within the meaning of the Sub-Treasury Act, and subject to the penalties prescribed by it for the misconduct of officers. He was appointed by the assistant treasurer with the approbation of the Secretary of the Treasury, under a statute which authorized the appointment of clerks in such manner. The court say, in that case, that the clerk was a public officer; that an office is a public station or employment, conferred by the appointment of Government; and that the term embraces the ideas of tenure, duration, employment and duties. A receiver of a National bank is in the public service of the United States. He is appointed pursuant to law. Vacation of office by the Comptroller does not vacate the receivership. His duties are continuing and permanent. The Secretary of the Treasury is declared by section 233 of the Revised Statutes to be the head of the Department of the Treasury. By section 324 the Comptroller of the Currency is made the chief officer of a bureau in the Department of the Treasury, charged with the execution of all laws passed by Congress relating to the issue and regulation of a National currency secured by United States bonds, and it is enacted that he shall perform his duties under the general direction of the Secretary of the Treasury. Receivers of National banks are authorized to be appointed by sections 5141, 5191, 5195, 5201, 5205, and 5234, under the circumstances prescribed in those several sections, which correspond to sections 15, 31, 32, 35 and 50 of the act of 1864, and section 1 of the act of March 3d, 1873. 17 U. S. Stat. at Large, 603. In only one of these sections is it enacted that the appointment of the receiver shall be made by the Comptroller with the concurrence of the Secretary of the Treasury. But this is implied;

Stanton, Receiver, v. Wilkeson.

and where the Comptroller appoints a receiver, the concurrence or approval or approbation of the Secretary of the Treasury is to be presumed, till the contrary appears, for the Comptroller is required to perform his duties under the general direction of the Secretary of the Treasury. See Cadle v. Baker, 20 Wall. 650; Thomp. N. B. Cas. 108. In United States v. Hartwell, it was held that the appointment of the assistant treasurer's clerk by that officer, with the approbation of the Secretary of the Treasury, constituted an appointment by the head of a department, within the meaning of the provision of the Constitution (art. 2, § 2), that Congress may, by law, vest the appointment of such inferior officers as they think proper in the heads of departments. This point has been decided in the same way by the District judge for the Eastern District of New York, in Platt v. Beach, 2 Ben. 303, and I entirely concur in his views.

It is further objected, that the proper remedy of the plaintiff is not by separate suits at law against individual stockholders, but by a suit in equity. The view urged is, that, if the 60 per cent assessed in this case shall turn out, if it be all collected, to be more than is necessary, there is no provision of law for refunding it; and that, if there are insolvent stockholders, who cannot pay the 60 per cent, another assessment may be sought to be made on stockholders who can pay, and thus they be compelled, perhaps, to pay more than their proper proportion of the debts.

The individual liability sought to be enforced in this suit is that imposed by section 12 of the act of 1864, now section 5151 of the Revised Statutes, as well as that imposed by the act of 1863, under which the bank in question was organized. The liability imposed by section 12 of the act of 1863 was in these words: "For all debts contracted by such association for circulation, deposits or otherwise, each shareholder shall be liable to the amount, at their par value, of the shares held by him, in addition to the amount invested in such shares." The act of 1864 and the Revised Statutes enact that the shareholders" shall be 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