PARDEE, Circuit Judge (after stating the facts). Under the laws of Alabama, the attachment creditor who perfects his lien by the recovery of judgment is a bona fide creditor from the inception of the lien. Bank v. Pinckard, 87 Ala. 577, 6 South. 364. And the lien, by force of the statute, relates back to, and has priority from, the levy of the attachment. Hardaway v. Semmes, 38 Ala. 657; Hurt v. Redd, 64 Ala. 85; Abels v. Insurance Co., 92 Ala. 382, 9 South. 423. The levy of Orman's attachment, the lien of which was subsequently perfected by the recovery of judgment, was prior to the granting and recording of the deed of trust of March 5, 1892. Therefore, Orman has a prior lien on the property attached to that claim by the appellee under said deed of trust. The sworn bill filed by appellee in the court below charges that at the date of the levy of the attachment, and prior thereto, Orman had full notice of the execution and delivery of the first deed of trust by the North Alabama Development Company to the appellee. This renders it necessary to consider the character and effect of the first deed of trust, and the circumstances existing at its date. Said deed of trust was executed December 22, 1890, after the creation of the obligation in favor of Orman, and has never been recorded. The second clause of the deed grants and conveys to the trustees all lands, mines, buildings, works, and hereditaments, and other real estate of the company, wheresoever situated, and also all the undertaking and business of the granting company, and all other assets, effects, and personal property of the company, other than personal chattels in England, and the benefit of all contracts and agreements, and all options, privileges, and rights, subject to the provisions of clause 15, which are as follows: "The conveyance and assignment purporting to be made by clause 2 are intended to be by way of floating security, only, and not to prevent or hinder any sale, exchange, lease, or other dealing by the company, in the course of its business, of or with any part of its property, until either the trustees or trustee shall make entry as aforesaid.” In short, the deed of trust conveys all the property of the North Alabama Development Company in this country, real and personal, in trust to secure debts thereafter to be contracted; leaving the grantor to hold, retain, sell, transfer, and exchange the same at will. The appellants contend that this instrument is void against creditors existing at the date of its execution, because it is a conveyance which, leaving the grantor in full possession and management of his property, and with a material interest therein, necessarily hinders and delays creditors. We agree with this construction of the deed in question. See Code Ala. 1886, § 1735; Ruse v. Bromberg, 88 Ala. 628, 7 South. 384; Renfro v. Goetter, 78 Ala. 314, 315; Bank v. Brewer, 71 Ala. 574; Reynolds v. Welch, 47 Ala. 203. The first deed of trust being void as against Orman, an existing creditor at the time it was executed, it was immaterial whether Orman had notice thereof, or not, prior to the levy of his attachment. As Orman's lien under his attachment is prior in rank to the lien granted the appellee under the second deed of trust, the injunction issued by the court below, postponing Orman's lien, should not have been issued. The order of the circuit court, of the 11th day of November, 1893, granting an injunction restraining the appellant and the marshal of the district from making a sale of the property mentioned and described in the bill, and from interfering with or disposing of said property until the further order of the court, should be reversed, and the cause remanded to the circuit court, with instructions to further proceed in the same according to the views herein expressed, and it is so ordered AMERICAN PASTORAL CO., Limited, v. GURNEY. (Circuit Court, W. D. Missouri, W. D. April 23, 1894.) 1. FOREIGN CORPORATIONS-CALLS FOR UNPAID STOCK-FOREIGN LAWS. The validity of calls made by a British corporation for unpaid stock is to be determined by the British law. 2. SAME-VALIDITY OF CALLS. The articles of association of a British corporation authorized the directors, on 20 days' notice, to make calls for unpaid stock, and further stated that each member should be liable to pay the amount of the calls to the persons, and at the times and places appointed by the directors. Held, that the naming of such person, time, and place in the resolution adopted by the board of directors was not a prerequisite to the validity of a call, and such omission did not affect the liability of a member to pay the same. 3. SAME-INTEREST ON UNPAID CALLS. The articles of association of a British corporation provided that, if any member did not pay calls for unpaid stock on or before the day fixed therefor, he should be liable for interest from that day at such rate as the directors might from time to time appoint by notice to the defaulter. Held, that a defaulter to whom no notice was sent of any resolution requiring payment of interest was not liable for any interest. This was an action by the American Pastoral Company, Limited, against David E. Gurney, a shareholder therein, to recover an assessment for unpaid stock. The case was tried to the court without a jury. The above cause, by stipulation duly filed, having been submitted to the court without a jury, the court finds the facts to be as follows: (1) The American Pastoral Company, Limited, the plaintiff herein, was, when this action was commenced, a corporation created and organized in accordance with and under the laws of the kingdom of Great Britain and Ireland, and the defendant, David E. Gurney, was a citizen of the state of Missouri, and a resident of the western district thereof. (2) The plaintiff corporation was created and organized in April, 1884, in the city of London, England, for the purpose, among others, of acquiring and improving lands in the state of Texas, and elsewhere in the United States, and to breed and deal in all kinds of stock, cattle, horses, sheep, and produce. The capital stock was originally fixed at £300,000, divided into 30,000 shares of £10 each, but was increased January 27, 1885, to £400,000, and February 10, 1887 to £450,000, and on the 10th day of February, 1890, the capital stock was reduced from £450,000 to £290,000. The articles of association adopted in the organization of the corporation, and the action of the directors in increasing and reducing the capital stock, are found in pamphlet marked "H" attached to the depositions, and the same is made part of this finding. (3) That on or about July 29, 1884, there was allotted to David J. Beals, of the capital stock of said plaintiff corporation, 2,000 shares, on which was paid at the time by said Beals the sum of £5 per share, said shares being numbered from 28,001 to 30,000, inclusive. (4) That on or about March 23, 1887, the said David J. Beals duly sold, assigned, and transferred to the defendant 106 shares of capital stock by him owned in said plaintiff corporation, and on or about October 25, 1887, said Beals sold and transferred to defendant 277 shares of said stock, on which said shares there then was unpaid and subject to call the sum of £5 per share. Said 383 shares so sold to defendant were duly transferred to him upon the books of the plaintiff corporation. (5) That on the 14th day of October, 1889, the plaintiff corporation, through its board of directors, made an assessment or call on the unpaid capital stock of the company of £1. 10s. per share, payable on or before the 2d day of December, 1889, and on the 15th of April, 1890, a further call of £1 per share was made, payable on or before the 7th day of June, 1890, and on the 17th day of March, 1891, a further call of 10s. per share was made, payable on or before the 1st day of June, 1891, and on the 4th day of November, 1891, a further call of 10s. per share was made, payable on or before December 5, 1891; the resolutions making such calls being in the following form, and being duly entered upon the minutes of the meetings of the directors of the plaintiff corporation: "To meet the liabilities of the company, including the debentures maturing at 31st of December, 1889, which it was resolved to pay off, it was resolved that a call of one pound ten shillings per share be and is hereby made payable on 2d December, 1889, and the secretary was instructed to send notice of the same to shareholders." The resolutions authorizing further calls, as above stated, are in the same form, differing only in the amount of the assessment and the times of payment. (6) The secretary of the plaintiff corporation forwarded by mail notices of these several calls as they were made, duly addressed, and postage paid, to the defendant; the notices containing a statement of the fact of the call having been made, of the amount thereof, of the time of payment, and the further statement that the amount was payable at the Royal Bank of Scotland, 123 Bishopsgate street, London, E. C., or at any branch of said bank. (7) That when said several calls were made, as above stated, the defendant was the owner of 383 shares of the capital stock of said company, and so appeared upon the stock books of the plaintiff corporation. (8) That the defendant has not paid either one of said calls, made as above stated, nor any part thereof. (9) That the call made on October 14, 1889, of £1. 10s., amounted, on the 383 shares owned by the defendant, to the sum of £574. 10s., or to the sum of $2,792.07, counting the pound to be of the value of $4.86 United States currency; that the call made April 15, 1890, of £1 per share, amounted to £383 on the shares owned by defendant, or to the sum of $1,861.38 United States currency; that the call made March 17, 1891, of 10s. per share, amounted to £191. 10s. on the shares owned by defendant, or to the sum of $930.67 United States currency; that the call made November 14, 1891, of 10s. per share, amounted to the sum of £191. 10s. on the shares owned by the defendant, or to the sum of $930.69 United States currency,—or, in the aggregate, to the sum of $6,514.83. (10) Under date of April 24, 1890, the defendant, in response to a letter written him by the secretary of the plaintiff company, wrote to the secretary that he was not disposed to respond to any calls on account of stock; that he thought there had been bad management of the affairs of the company, and that, if he was pressed for the payment of calls, he would seek to have a receiver appointed to take charge of the corporate property. Warner, Dean, Gibson & McLeod, for plaintiff. SHIRAS, District Judge. The defendant in this case resists the collection of the calls made upon the shares of stock by him owned in the plaintiff corporation, on the ground that the several calls are invalid for the reason that the resolutions adopted by the board of directors fail to name the persons and place to whom and at which payment of the calls was to be made. I concur in the position of defendant's counsel that the validity of the calls is to be determined by the law of Great Britain, for certainly, if the calls made in London under the provisions of the charter of the plaintiff company are invalid and nonenforceable as against stockholders residing in Great Britain, they should not be held to be valid and enforceable against stockholders residing in the United States. Section 11 of the articles of association of the plaintiff company provides that: "The directors may, from time to time, make such calls upon the members, in respect of moneys unpaid, or not credited as paid, on their shares, as they think fit, but twenty days' notice at the least shall be given of each call; and each member shall be liable to pay the amount of calls so made to the persons and at the times and places appointed by the directors." The resolutions adopted from time to time by the directors of an association must be read in connection with the provisions of the articles of association in determining the meaning and validity thereof. Under the provisions of section 11, just cited, the directors unquestionably have the authority to make calls for the unpaid portions of the capital stock when the needs of the company require it. The resolutions adopted by the directors from time to time show that the directors deemed that need existed for making the calls, and they fix in each instance the amount of the call, and the time when the same should become due and payable. Is anything further needed to constitute a valid call upon the stockholders, so far as the action of the directors is concerned? Looking for guidance to the rulings of the courts of England upon the proposition, we find that in Railway Co. v. Woodcock, 7 Mees. & W. 574, under the provisions of a railway act which authorized the directors to make calls from time to time as they deemed it necessary, of which calls 21 days' notice was to be given by newspaper publication, it being further provided that the shareholders were required to pay the calls on their shares to such person, at such time and place, and in such manner as the directors should direct or appoint, it appeared that the directors adopted a resolution for a call, giving the amount of the call and naming the day of payment, but not stating where, or the person to whom, payment was to be made, but these were named in the newspaper advertisement, and it was held that the call was valid and enforceable. In substance, the same ruling was made in Railway Co. v. Fairclough, 3 Scott, N. R. 68. In Stone v. City & County Bank, 3 C. P. Div. 282, wherein it appeared that by the articles of association shareholders were required to pay calls to the person and at the time and place appointed by the directors, and that the directors had made a call payable in installments upon certain dates, but without naming the person to whom, or the place at which, payment was to be made, it was held that, after the company had gone into liquidation, the liquidator, after giving notice of the previous call and the place of payment, could enforce the call against the stockholders. In other words, the call made by the directors was held valid and enforceable, although the resolution did not name the place or person at which and to whom payment was to be made. In Cook on Stock and Stockholders, section 115, after consideration of both the English and American authorities, the rule is stated to be that "the call need not indicate when or to whom or where payment is required to be made. These are to be stated in the notice of the call." In support of the contention of the defendant, citation is made of the cases of In re Cawley, 42 Ch. Div. 209, and Johnson v. Iron Although there are statements in a portion Agency, 5 Ch. Div. 687. of the opinions which, by themselves, would seem to mean that a call should name the place of payment, I think the stress of the cases turned upon the proposition that the call should embrace the amount and the time of payment, and that it was not intended to question the correctness of the rulings in the previous cases to the effect that a resolution adopted by the directors, which fixed the amount of the assessment and the time of payment, constituted a valid call under the provisions of articles of association like those of the Under these articles, it seems clear to me that plaintiff company. when the directors, being duly convened, determined that there was need for making an assessment upon the unpaid portions of the shares of the company, and fixed the amount of the assessment and the time for the payment thereof, they did all that was neces sary to constitute a valid call. A valid call having thus been made, then, under the provisions of article 11, 20 days' notice thereof must be given to each shareholder. It is not required, however, that this notice should be given by the directors. It is clearly sufficient if the notice is sent by the secretary of the company, as was done in regard to each one of the calls in question. The call having been made in due form by the directors, and notice thereof having been sent to the shareholders, then, under the provisions of article 11, a duty is imposed upon the shareholders, and that duty is to pay the amount of the assessment. Under the provisions of this article, the directors have the power to appoint the place of payment and the person to whom payment In the case of an association organized in England, may be made. but transacting business in the United States, and having stockholders residing in both countries, it might be deemed advantageous to appoint more than one place of payment. Again, a call having been made, circumstances might arise, after notice thereof had been given, which required a change in the person to whom payment If a corporation, it might fail, or, if an individual, should be made. Under such circumstances it is certainly within he might die. the power of the company to designate a new agent to whom payment may be made, without requiring the directors to make a new The validity and enforceability of the call cancall or assessment. not, in any proper sense, depend upon the continuance in actual or business life of the person or corporation appointed to receive payThe selection of the place of ment on behalf of the association. payment, or person to receive the payment, is no more necessary to the valid exercise of the right to make calls upon the stockholders than is the selection of the location of the offices of the These are administrative acts proper for the carrying company. out of the action of the directors, but not essential to the validity thereof. The duty and obligation to pay the assessment is imposed |