its suspension, to secure a depositor, is void as against a judgment recovered against the cashier by the receiver, either in the hands of a receiver or of a purchaser from him for value.1

§ 7285. Necessity of Assessment. An assessment by the Comptroller of the Currency is indispensable, whenever the personal liability of the stockholder is sought to be enforced, and must precede the institution of suit by the receiver; and the fact must be distinctly averred in all such cases, and, if it be put in issue, must be proved.❜

§ 7286. Determination of Comptroller in Assessing the Shareholders Conclusive. The discretion of the Comptroller of the Currency, not only in respect of the propriety of appointing a receiver, but in respect of the necessity of assessing the shareholders, is conclusive upon the shareholders, and cannot be controverted by them in an action by the receiver to enforce the assessment. Upon this subject it has been said in a leading case: "The receiver is the instrument of the Comptroller. He is appointed by the Comptroller, and the power of appointment carries with it the power of removal. It is for the Comptroller to decide when it is necessary to institute proceedings against the stockholders to enforce their personal liability, and whether the whole or a part, and if only a part, how much shall be collected. These questions are referred to his judgment and discretion, and his determination is conclusive. The stockholders cannot controvert it. It is not to be questioned in the litigation that may ensue. He may make it at such time as he may deem proper, and upon such data as shall be satisfactory to him. This action on his part is indispensable, whenever the personal liability of the stockholders is sought to be enforced, and must precede the institution of suit by the receiver. The fact must be distinctly averred in all such cases, and if put in issue, must be

1 Gatch v. Fitch, 34 Fed. Rep. 566. As to the right of set-off in such actions, see ante, §§ 3785, et seq., 6965, et seq.; Welles v. Stout, 38 Fed. Rep. 807.

Kennedy . Gibson, 8 Wall. (U. S.) 498; 8. c. 1 Nat. Bank Cas. 17, 20. Compare ante, §§ 3537, 3752, et seq.

proved." In a subsequent case the court reaffirmed the principles thus stated, by stating that the amounts to be paid rest in the discretion and judgment of the Comptroller; that his determination cannot be controverted by the stockholders in suits against them; and that, when the order is to collect the full amount of the par of the stock, the suit must be at law. It was no defense to such an action to set up that the defendant was bound to contribute ratably to pay a large sum, and that this sum was not stated in the declaration, and hence that what would be ratable and proper did not appear; nor that the obligation of the defendant was to pay into the hands of the Comptroller of the Currency a ratable portion of the debts of the association, proved before him, and that the declaration did not show that any debts had been so proved.' Therefore, in an action to enforce such an assessment, it is sufficient to allege that the Comptroller determined that the assessment was necessary, and levied it. The collection of such an assessment, by an action at law, does not deprive the stockholders of their property "without due process of law." If the assessment is made by a Deputy Comptroller, his action is equally conclusive."

5

§ 7287. Parties in Equity. - Where a contribution only is sought, all the stockholders who can be reached by the process of the court may be joined in the suit, and it will be no objection that there are others beyond the jurisdiction of the court, who cannot, for that reason, be made co-defendants."

1 Kennedy v. Gibson, 8 Wall. (U. S.) 498; 8. c. 1 Nat. Bank Cas. 17, 20; opinion of the court by Mr. Justice Swayne.

Casey v. Galli, 94 U. S. 673; 8. c. 1 Nat. Bank Cas. 142, 144; overruling Bowden v. Morris, 1 Hughes (U. S.), 378; 8. c. 1 Nat. Bank Cas. 930. Cases following this doctrine are Bailey v. Sawyer, 4 Dill. (U. S.) 463; 8. c. 2 Nat. Bank Cas. 154; Strong v. Southworth, 8 Ben. (U. S.) 331; s. c. 2 Nat.

§ 7288. When the Action should be at Law and when in Equity. -- When the order of the Comptroller is to collect the full amount of the par of the stock, the suit must be at law; and it is of course no defense to such a suit that the defendant is bound to contribute ratably, and that the proper amount to be contributed by him can be ascertained only in equity.' But where less than the entire liability of the stockholder is sought to be enforced, the suit may be in equity, and an interlocutory decree may be taken for a contribution."

§ 7289. Pleading in Such Actions. In an action by the receiver of a national bank against a shareholder to recover an assessment ordered by the Comptroller, an allegation in the petition that, on a day named, "the Comptroller of the Currency, in order to pay the liabilities of" the bank, "made an assessment upon the said shares of the capital stock of said bank," of one hundred per cent upon its par value, "and ordered the stockholders to pay the same on or before" a day named, is sufficient to show that the requisite action was had by the Comptroller, not only as to determining upon the necessity of an assessment, but also as to the enforcement thereof by suit against the delinquent stockholders. The allegation following, "that, by virtue of the premises, and of the statutes in such case made and provided, the defendant became and is indebted to your petitioner in the sum of," etc., sufficiently shows that defendant had become indebted in the sum named, and also that such indebtedness still continued when the petition was filed, and is equivalent to an allegation of nonpayment.3

§ 7290. Accruing of Interest against Stockholders.-The sum to be paid being liquidated, and due and payable when

1 Casey v. Galli, 94 U. S. 673; s. c. 1 Nat. Bank Cas. 142, 144; Kennedy v. Gibson, 8 Wall. (U. S.) 498; s. c. 1 Nat. Bank Cas. 17. See Young v. Wempe, 46 Fed. Rep. 354.

Kennedy v. Gibson, 8 Wall. (U.S.) 498; 8. c. 1 Nat. Bank Cas. 17.

Welles v. Stout, 38 Fed. Rep. 67. Pleading in an action by such a receiver to recover assets fraudulently transferred; when two counts state but one cause of action: Brown v. Carbonate Bank, 34 Fed. Rep. 776.

the Comptroller's order is made, it follows that the amount bears interest from the date of the order; otherwise there would be no motive to pay promptly, and no equality between those who should pay then and those who should pay at the end of a protracted litigation.'

§ 7291. Mode of Enforcing Contribution and Securing Equality among the Stockholders. In the leading case on this subject the following suggestions are made by the court, with an evident intention that they shall be regarded as authoritative: "The liability of the stockholders is several, and not joint. The limit of their liability is the par of the stock held by each one. Where the whole amount is sought to be recovered, the proceeding must be at law. Where less is required, the proceeding may be in equity; and in such case an interlocutory decree may be taken for contribution, and the case may stand over for the further action of the court if such action should subsequently prove to be necessaryuntil the full amount of the liability is exhausted. It would be attended with injurious consequences to forbid action. against the stockholders until the precise amount necessary to be collected shall be formally ascertained. This would greatly protract the final settlement, and might be attended with large losses, by insolvency and otherwise, in the intervening time. The amount must depend in part upon the solvency of the debtors and the validity of the claims. Time will be consumed in the application of these tests, and the results in many cases cannot be foreseen. The same remarks apply to the enforced collections from the stockholders. A speedy adjustment is necessary to the efficiency and utility of the law; the interests of the creditors require it, and it was the obvious policy and purpose of Congress to give it. If too much be collected, it is provided by the statute that any surplus which may remain, after satisfying all demands against the association, shall be paid over to the stockholders. It is better they should pay more than may prove to be needed

1 Casey v. Galli, 94 U. S. 673; s. c. 1 Nat. Bank Cas. 142, 144.

than that the evils of delay should be encountered. When contribution only is sought, all the stockholders who can be reached by the process of the court may be joined in the suit. It is no objection that there are others beyond the jurisdiction of the court who cannot for that reason be made co-defendants."

§ 7292. Creditor's Bill to Enforce Individual Liability of Stockholders.-Prior to the Act of June 30, 1876, the receiver alone possessed the right of action to enforce the individual liability of stockholders in national banks; but by the second section of the act of Congress of that date it was enacted: "That when any national banking association shall have gone into liquidation under the provisions of section 5220 of said statutes, the individual liability of the shareholders, provided for by section 5151 of said statutes, 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 the United States having original jurisdiction in equity for the district in which such association may have been located or established." Prior to this statute, the Circuit Court of the United States, in equity, had jurisdiction of a suit brought by a judgment creditor to prevent or redress maladministration or fraud against creditors in the voluntary liquidation of a bank, whether such fraud was contemplated or executed; and such a suit, though begun by a single creditor, was necessarily prosecuted for the benefit of all. And where a bill of that nature had been filed by a creditor prior to the enacting of this statute, the court held that, whether the statute be considered declaratory of the existing law, or as giving a new remedy, it warranted the court in retaining the bill and allowing it to be amended.*

1 Kennedy v. Gibson, 8 Wall. (U. S.) 498; s. c. 1 Nat. Bank Cas. 17, 20.

Act Cong. June 30, 1876, § 2; 19 U. S. Stat. at Large, 63; 1 Supp. to Rev. Stats. U. S. (2d ed.), p. 107.

Richmond v. Irons, 121 U. 8.

27, 49.

Ibid. See the same case for an example of an amendment of such a bill held not materially to change the substance of the case nor make the