Richmond v. Irons. On February 2, 1885, various exceptions were filed on behalf of the defendant stockholders to this report of the master. An exception thereto was also filed on behalf of the receiver and creditors, so far as it reported in favor of certain stockholders claiming to have been discharged from their liability by their certificates in bankruptcy. Upon the hearing of these exceptions the court referred the cause again to the master to compute, from the proofs already taken in the cause, (1) the indebtedness of the bank at the time of the failure; (2) subsequent actual payments upon indebtedness; (3) net amount of indebtedness, with interest on same at the rate of six per cent per annum, from the time of the failure of the bank; (4) the necessary assessment upon the stockholders to pay said indebtedness, including the expenses of the receivership. In pursuance of this direction, on the 25th of May, 1886, the master made a supplemental report, in which he finds that the indebtedness of the bank at the time of the failure thereof, to-wit: the 23d day of September, 1873, amounted in the aggregate to the sum of $410,064.10; that the subsequent actual payments upon said indebtedness amounted to the sun of $213,018.46; that the net amount of the indebtedness was the sum of $197,045.64; that the interest upon said last-mentioned sum from the 23d of September, 1873, when the bank failed, down to May 21, 1886, at the rate of six per cent per annum, is the sum of $149,686.98 making the total unpaid indebtedness of said bank on the last-mentioned date the sum of $346,732.62; that twenty per cent upon said last-mentioned sum, amounting to the sum of $69,346.52, is necessary to be added thereto for the expenses of the receivership, making a total sum of $416,079.11; and that the necessary assessment upon the stockholders to pay said indebtedness, including the expenses of the receivership, is eighty-three and two-tenths per cent upon the capital stock of $500,000. In addition to those filed to the original report, exceptions were filed to the supplemental report, objecting to the allowance of interest upon the claims of the creditors, and to the addition of twenty per cent to the amount of the indebtedness, for the purpose of providing for the payment of the expenses of the receivership. All the exceptions to the master's reports were over Richmond v. Irons. ruled, and a final decree was entered against the defendants according to its findings; a decree being entered against each stockholder defendant severally for the amount computed to be due from him upon the assessment of the stock ascertained to be standing in his name on the books of the bank at the date of its suspension, at the rate of assessment fixed in the report of the master. From this decree Alonzo Richmond, Charles Comstock, Thomas Lord and William Henri Adams, administrator de bonis non of the estate of William H. Adams, deceased, severally appealed. Some of the questions raised by the assignments of error are common to all the appellants, and others are peculiar to the individual cases. So far as necessary to the disposition of the case, they will be considered in their order. The first assignment of error relates to the pleadings. It is objected that the court erred in permitting the complainant to file the amended bill of October 5, 1876, and also in permitting the amendment made at the hearing on July 23, 1883; and we are asked to reverse the decree on that account, and on remanding the cause, to direct that the amended bill as amended be dismissed. The grounds of objection to the amendments as made are (1) that the amended bill stated a case entirely different from that contained in the original bill; and (2) that it made the bill, as amended, multifarious. The changes made in the case as originally stated in the bill are alleged to be (1) that it converted a creditors' bill, the object of which was to subject to the payment of the complainant's judgment assets of the corporation which could not be reached at law, into a bill for the additional purpose of enforcing the statutory liability of the stockholders of the bank to answer for its contracts, debts and engagements; and (2) that it converted the bill filed by the complainant in his own right into a bill on behalf of himself and all other creditors of the corporation. It is a mistake however to assume that the bill as originally filed was strictly and technically a creditors' bill merely, for the purpose of subjecting equitable assets to the payment of the complainant's judgment. That undoubtedly was a part of its purpose and prayer, and in pursuance of it a small amount of the assets of the bank were recovered by the receiver, converted into Richmond v. Irons. money, and applied to the payment of the costs in the cause; but the whole of this recovery amounted only to $3,346.96, and it was not until after the result became manifest that application was made, and leave given, to file the amended bill. But the main purpose of the bill as originally framed was to obtain a judicial administration of the affairs of the bank, on the ground that its capital stock and property was a trust fund for the benefit of its creditors, the company being insolvent and in liquidation, and that, under the management of its officers and directors, this trust was being violated and perverted. The bill contained allegations that Holmes, the president and manager of the bank, had converted its assets to his own use and to the use of others, in violation of his trust and in fraud of creditors, applying the assets of the bank so as to prefer some creditors over others, and otherwise dissipating and squandering them. It accordingly prayed for a full discovery of all the transactions on the part of Holmes in reference to the affairs of the bank since its suspension, for an injunction prohibiting any further transfers of its assets, for the appointment of a receiver with the general powers of receivers in like cases, and for general relief. If this bill had been prosecuted, as originally framed, to final decree, and had resulted in the recovery of assets of the bank applicable to its purposes, it would necessarily have been made to appear during the progress of the suit that there were other creditors of the bank equally entitled with the complainant to share in the fruits of the litigation. The relief that would have been granted in such circumstances would have been by means of a decree distributing the assets obtained equally among all the creditors, including the complainant, who, in respect to such assets, would have been entitled to no priority, either by virtue of having reduced his claim to judgment, or by reason of having first filed a bill to enforce the trust. In the case of an insolvent corporation thus brought into liquidation, and wound up by judicial process at the suit of a creditor, whether he sues in his own right, or on behalf of himself and other creditors, the rule of distribution is the same, and is founded upon the principle of equality in which equity delights, unless a claimant or some other judgment creditor had, previously to the filing of the bill, ob Richmond v. Irons. tained a lien at law upon some portion of the property distributed, or could establish a superior equity, existing at the time of the filing of the bill. Curran v. Arkansas, 15 How. 304; Wood v. Dummer, 3 Mason, 308; Ogilvie v. Knox Ins. Co., 22 How. 387; Sawyer v. Hoag, 17 Wall. 610. When the amended bill was filed the resources of the bank discovered and delivered to the receiver had been exhausted. The amended bill set out the names of all the stockholders and all of those claimed to have been stockholders at the date of the suspension, by name, with the number of shares belonging to each. It charged that certain of them combined and confederated with the defendant Holmes for the purpose of committing a fraud upon the creditors of the bank, by surrendering and transferring their shares of stock, receiving in exchange therefor a portion of the assets of the bank applicable to the payment of its debts. It accordingly prays, as a part of the relief, that these transactions may be inquired into and set aside; that the assets of the bank so received by any of these stockholders may be decreed to be delivered up and applied to the payment of the debts of the bank; and that, in addition thereto, an account be taken of all the present indebtedness of the bank, and of the amounts due from each of the defendants "to your orator and the judgment and other creditors of the said bank as stockholders thereof, upon the basis of the number of shares of stock held by them at the time the said bank suspended payment in the manner as aforesaid, in pursuance of the provisions of the act under which the said bank was organized, and by which the liability of the stockholders thereof is fixed and determined." In some respects it is quite true that this amended bill is a departure from the case as stated in the original bill. It was however germane to the original bill to have included in it the statements of the amended bill in respect to such of the stockholders as were charged by name with having, in combination with the president of the company, sold their stock, receiving assets of the bank in payment therefor, after it had gone into liquidation, or in contemplation of insolvency, and in fraud of the creditors. Assets of the bank received by any of them in such circumstances were such as were clearly within the purview of the bill as Richmond v. Irons. originally framed, and those allegations were certainly the subject of a proper amendment. Having thus brought in a number of the stockholders properly as defendants, to subject them to a decree to account for assets of the bank received by them in breach of trust and in fraud of creditors, it does not seem inappropriate or foreign to the general purposes of the bill for the court, having jurisdiction over them in behalf of the complainant, who, as we have seen, necessarily represented all creditors entitled to share in the results of the suit, to proceed upon the basis of granting the additional and complete relief prayed against them as stockholders, requiring them to answer under the statute for all the contracts, debts and engagements of the bank. But to do this made it necessary to bring in all other stockholders of the bank within the reach of the process of the court, although they may not have been charged as participating in the alleged breaches of trust and frauds. The various matters therefore contained in the amended bill and the original bill, were thus connected with each other in such a way as fairly to bring the question of granting leave to file the amended bill within the discretion of the court below. In reviewing the exercise of that discretion on this appeal, we should not feel justified in any case in reversing the action of the Circuit Court, if it appeared that the appellants were not put to any serious disadvantage or materially prejudiced thereby. The amendment made at the hearing, whereby the amended bill was changed so as to state that it was filed by the complainant on behalf of himself and all other creditors, we regard as purely formal, and properly permitted for the purpose of making the bill explicitly to conform to all that had taken place previously in the progress of the cause. The litigation had been conducted, from the time of the filing of the first-amended bill, upon the supposition and theory that it included in its scope all creditors of the bank alike. The defendants therefore could not have been taken by surprise by the amendment, and would not be deprived of the benefit of any defense, or put to any disadvantage, on account thereof. The action of the Circuit Court, in permitting these amendments, we think is justified by the rules on that subject as stated by this court in the case of Neale v. Neale, 9 Wall. 1; in The |