The liability of a stockholder in a national bank for assessments made by the Comptroller of the Currency on insolvency of the bank, is not dependent upon the contract of subscription between the stockholder and the corporation, but is created by statute for the benefit of the bank's creditors, and can be neither modified nor released by any act of the corporation. In the case of Scott v. Latimer, 89 Fed. Rep. 843, the court, in discussing this question, says: "The liability sought to be enforced in this case is not one created by a contract existing between the corporation and the stockholders, but is one created by statute in favor of creditors, and not in favor of the corporation. It is a liability which cannot be affected, discharged, or released by any action taken by the corporation, or by the combined action or agreement of the corporation and its stockholders. Thus, in Delano v. Butler, 118 U. S. 634; 7 Sup. Ct. Rep. 39, it appeared that the stockholders, in order to meet the liabilities of the bank, had made an assessment of 100 per cent. upon the capital stock which was paid in, but the bank was ultimately compelled to go into liquidation, and the Comptroller made an assessment upon the stockholders under the provisions of section 5151 of the Revised Statutes. The Supreme Court held that the payment of the assessment made by the stockholders did not relieve them from liability for the assessment made by the Comptroller, it being said that: "Under section 5151 the individual liability does not arise, except in case of liquidation and for the purpose of winding up the affairs of the bank. The assessment under that section is made by the authority of the comptroller of the currency, is not voluntary, and can be applied only to the satisfaction of the creditors equally and ratably.' "It is thus made clear that the liability sought to be enforced in this case is not dependent upon the terms, or in fact upon the existence, of a contract of subscription to the capital stock of the bank, but it is a liability imposed by statute in favor of creditors, and it is a liability, as already said, which cannot be modified or released by any action on part of the corporation. or of the corporation and its stockholders. It is created for the benefit of the creditors, and no action on part of the bank can estop the creditors from enforcing their rights in this par ticular. Upon whom does the statute impose the liability? In Bank v. Case, 99 U. S. 628, and Bowden v. Johnson, 107 U. S. 251, 2 Sup. Ct. 246, it was ruled that the actual or beneficial owner of the stock would be liable, and that this liability could not be evaded by the device of transferring the title to a third person, who might be financially irresponsible. "In Pauly v. Trust Co., 165 U. S. 606, 17 Sup. Ct. 465, it is said: "It is true that one who does not, in fact, invest his money in such shares, but who, although receiving them simply as collateral security for debts or obligationss, holds himself out ou the books of the association as true owner, may be treated as the owner, and therefore liable to assessment, when the association becomes insolvent, and goes into the hands of a receiver. But this is on the ground that, by allowing his name to appear upon the stocklist as owner, he represents that he is such owner, and he will not be permitted, after the bank fails, and when an assessment is made, to assume any other position as against creditors. If, as between creditors and the person assessed, the latter is not bound by that representation, the list of shareholders required to be kept for the inspection of creditors and others would lose most of its value. As already indicated, those may be treated as shareholders, within the meaning of section 5151, who are the real owners of the stock, or who hold themselves out, or allow themselves to be held out, as owners, in such way and under such circumstances as, upon principles of fair dealing, will estop them, as against creditors, from claiming that they were not in fact owners.' * * The contrary doctrine to that just enunciated is: That a stockholder may, by express contract, entered into with a corporate creditor, waive his liability upon a debt, which at the time is incurred.3o In the case of Brown v. Eastern Slate Co., 134 Mass. 590, where a bill in equity was instituted against the stockholder of the corporation to enforce payment of the judgment under the statute of the State, the court held that an oral agreement might be shown as a part of the contract to exempt the stockholders from a statutory liability. 30 Robinson t. Bidwell, 22 Cal. 379; French v. Teschemaker, 24 Cal. 518; Wells v. Black, 117 Cal. 157; Bush v. Robinson, 95 Ky. 492; § 63. Fixing date of liability. If a liability does not exist by statutory provision at the time of subscribing for stock, a new remedy against stockholders cannot affect those who took shares in the corporation before its passage. The proposition may be again stated as follows: Where a liability does not exist at the time of subscribing for stock, in a corporation organized under the general laws of a State, a statute cannot afterwards be enacted imposing a liability. In the case of Grand Rapids Savings Bank v. Warren, 52 Mich. 557, in discussing this question the court says: "The liability for which this proceeding is instituted arose previous to the passage of this statute, and the claimant at the date of this statute had a right to recover its demands of the stockholders of the Exchange Bank of Big Rapids, on the failure of the bank to pay them. If the Act of 1877 is to be applied to these demands, it takes away the right as to all the stockholders who are non-residents, unless they voluntarily come to the State so that process may be served upon thein. It also enables any resident stockholder to escape liability by absenting himself from the State so that process may not be served. And apparently it takes it away as to all estates of deceased stockholders. But an act which could have this effect would be clearly inoperative, at least as to the cases in which its enforcement would release parties before liable, because it would to that extent impair the obligation of contracts. It would be inoperative, therefore, as to this estate. And this, we think, not only in so far as it undertook or assumed to give a new remedy but also in so far as to take away those which existed before. "We agree, therefore, with the circuit judge, that the claimant was entitled to prove its claim as was done against the estate. We also think that the liability of the shareholders is commensurate with that of the corporation itself, and extends to costs and interest on the judgments." § 64. Extent of stockholder's statutory liability. The extent of liability against the stockholder in a State bank is fixed and determined by the statute of the State. In most of the States the liability is a double liability. In the State of California, each stockholder of a corporation is individually and personally liable for such proportion of all of its debts and liabilities contracted, or incurred, during the time he was a stockholder, as the amount of stock or shares owned by him, bears to the whole of the subscribed capital stock or shares of the corporation. Any creditor of the corporation may institute joint or several actions against any of its stockholders for the proportion of his claim, payable by each, and in such action the court must ascertain the proportion of the claim or debt for which each defendant is liable, and a several judgment must be rendered against each in conformity therewith. The liability of each stockholder is determined by the amount of stock or shares owned by him, at the time the debt or liability was incurred; and such liability is not released by any subsequent transfer of stock. A bank charter declaring that "the stockholders of said bank shall be personally and individually liable for all losses, de ficiencies and failures of the capital stock of said bank," has been held to make the shareholder personally liable to the creditors of the bank for its indebtedness in proportion to their respective shares in the stock of the same, and not merely bound to keep the capital good by assessments. An important case discussing this question is the case of Queenan et al. v. Palmer et al., 117 Ill. 619. In this case it is held, that where the charter of a banking corporation makes its stockholders individually liable to the amount of the stock held by them respectively to depositors, and other creditors of the bank, for any losses they may sustain, such liability is a common fund for the security of creditors, and a court of equity aside from the ground of discovery, will have jurisdiction of a bill by a creditor for himself and others to enforce such liability, and control the fund. thus obtained for their benefit, and distribute the same ratably among them. An action at law in such case is declared by the court as being inadequate without the bringing of a multiplicity of suits. Where a bank charter provides that the stockholder shall "be responsible in his individual property in an amount equal to the amount of stock held by him, to make good losses to depositors:" Held by the court that the individual liability was not in the nature of a penalty, and, therefore, en forceable only in a court at law; but was primary and subject to the demand of depositors and other creditors equally with the assets of the bank. In construing the statute making stockholders liable, the court holds that where a charter or statute makes the stockholders of a corporation individually responsible in an amount equal to their stock, "to make good losses to depositors or others," will be construed to make the stockholders liable to all creditors who may suffer from the default or failure of the corporation to pay its indebtedness. 65. Liability of pledgee or trustee. The Supreme Court of the United States in the case of Rankin v. Fidelity Ins. Co., 189 U. S. 242, in discussing the question as to who are stockholders, pledgees, or trustees, holding stock in a national bank, says: "1. That liability may be established by allowing one's name to appear upon the books of the corporation as owner, though in fact he be only a pledgee. Pullman v. Upton, 96 U. S. 328. Nor can the real owner exonerate himself from responsibility by making a colorable transfer of the stock, with the understanding that at his request it shall be re-transferred. National Bank v. Case, 99 U. S. 628; Bowden v. Johnson, 107 U. S. 251; Stuart v. Hayden, 169 U. S. 1. "2. Stockholders of record are liable for unpaid installments, though in fact they may have parted with their stock, or held it for others. Hawkins v. Glenn, 131 U. S. 319. "3. A mere pledgee, however, who receives from his debtor a transfer of shares, surrenders the certificate to the bank and takes out new ones in his own name, in which he is described as 'pledgee,' and holds them afterward in good faith, and as collateral security for the payment of his debt, is not subject. to personal liability as a shareholder. Pauly v. State Loan and Trust Co., 165 U. S. 606. But it is otherwise, if he allows his name to appear on the book as owner, or being the owner, makes a colorable transfer of the stock. National Bank v. Case, 99 U. S. 628." Where the shares of stock in a banking corporation have been hypothecated, and placed in the hands of a transferee, he |