the amount of the company's liabilities.' But the capital stock is to be taken as stated in the charter.? § 155. The same subject continued - National banks.— When the assets of a national bank are insufficient to meet all its outstanding debts, each shareholder is individually liable to contribute such a sum as will bear the same proportion to the whole amount of the deficit as his stock bears to the whole amount of the capital stock of the bank at its par value, whether held by shareholders or by the bank itself, and whether held by solvent or insolvent owners, within or beyond the jurisdiction of the court. The decision of the Comptroller of the Currency as to the necessity for bringing proceedings against the stockholders and the extent to which their liability should be enforced is conclusive upon them." But in calculating the liability of the shareholders, unpresented claims are not to be taken into account, since no creditor who fails to appear and prove his claim is entitled to recover. The creditors can not in their own names proceed against the shareholders. The receiver is the proper party to bring the suit, and neither the creditors nor the bank are necessary parties to the action against the stockholders. The receiver may be appointed either by the Comptroller or by a court of competent jurisdiction. If a bill, as originally framed against an insolvent national bank, seeks only the collection of assets, but is afterwards amended so as to enforce the personal liability of stockholders, they should not be charged with the expense of a receiver, appointed under the bill as originally framed, but who was not necessary for the enforcement of the statutory liability. 1 Robinson v. Lane, (1856) 19 Ga. thereof, in addition to the amount 337. invested in such shares." U. S. Rev. Stat., § 5151. 2 Lane v. Morris, 8 Ga. 468. 3 United States v. Knox, 102 U. S. 422, 425. "The shareholder of every national banking association 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 4 National Bank v. Case, 99 U. S. 628; Casey v. Galli, 94 U. S. 673; Kennedy v. Gibson, 8 Wall. 498; Bailey v. Sawyer, 4 Dill. 463. 5 Richmond v. Irons, 121 U. S. 27. Kennedy v. Gibson, (1868) 8 Wall. 498. 7 Harvey v. Lord, 11 Biss. 144. § 156. Liability contingent upon the capital not being wholly paid in.- Under one statutory form the stockholders are subjected to an additional liability only when the capital stock has not been fully paid in. These acts differ from those statutes which merely declare the common law liability of stockholders each for the unpaid balance due on his shares, in that under them stockholders who have paid the full amount of their shares may be required to make good the deficit caused by the delinquency of others. And liability under these acts is in no way affected by the amount of capital which may be paid in, so long as any remains unpaid. But it may be terminated even after suit has been begun, by a payment which makes up the full amount of the capital stock. Under these statutes it becomes important to determine wherein payment consists. Where the company has accepted property as payment for its capital stock, it is for the jury to determine whether the transaction was made in good faith or with intent to evade the statute. A gross discrepancy between the valuation at which the property was accepted and its actual value, is presumptive evidence of fraud; but it has been held that the fact that it was worth only a fifth of the value put upon it, though presumptive evidence of fraud, does not charge the incorporators with legal fraud where they appear to have made their valuation in good faith. In Illinois the liability of stockholders for the debts of a corporation contracted be IN. Y. Laws of 1848, ch. 40, § 10. 2 Tiballs v. Libby, 87 Ill. 142; Butler v. Walker, 80 Ill. 345. 3 Norris v. Johnson, (1871) 34 Md. 485; Norris v. Wrenschall, 34 Md. 492. to the amount that he has actually paid on his subscription, is valid, as against creditors, and they can not enforce the original subscriptions, except as to the deficiency between the amount of paid-up stock so is 4 Booth v. Campbell, (1872) 37 Md. sued and the minimum allowed by 522. › An arrangement made in good faith among the stockholders of a corporation whose subscription to its capital stock has never been made public, entered into before the corporation has incurred debts, whereby, instead of issuing stock to the amount of the original subscriptions, each subscriber is given full paid-up stock the charter for the transaction of business. Hill v. Silvey, (1889) 81 Ga. 500. 6 Lake Superior Iron Co. v. Drexel, (1882) 90 N. Y. 87. 7 Thurston v. Duffy, (1886) 38 Hun, 327. 8 Young v. Erie Iron Co., (1887) 65 Mich. 111. fore the whole capital stock has been paid in, can not be enforced by a single creditor, suing on his own behalf. The bill must be brought in behalf of all creditors, and the assets of the corporation must first have been exhausted.1 § 157. Debts due laborers. In many of the States there are statutes making the shareholders of corporations individually liable for debts due to its servants, laborers, employees and apprentices, designed for the protection of those who "usually look to the reward of a day's labor or service for immediate or present support, from whom the company does not expect credit, and to whom its future ability to pay is of no consequence;" such, for example, as an engineer and fireman, although sometimes acting as superintendent also, a civil engineer, a reporter employed by a newspaper company, and a city or assistant editor, if not an officer of the company, an overseer and book-keeper, and a book-keeper having no other duties than such as usually pertain to that position, a foreman in a manufacturing corporation, although he may not perform manual labor. But in general only 8 6 1 Harper v. Union Manuf. Co., Y. 213, 217. Cf. Williamson v. (1882) 100 Ill. 225. Wadsworth, 49 Barb. 294; Adams v. Goodrich, (1875) 55 Ga. 335. 2N. Y. Laws of 1848, ch. 40, § 18, laborers, servants and apprentices; N. Y. Laws of 1875, ch. 392, § 8, amending N. Y. Laws of 1850, ch, 140, 10, laborers and servants of railways, other than contractors; Wis. Rev. Stat. (1878) § 1769, clerks, servants and laborers; Ind. Rev. Stat. (1881) § 3869, laborers, servants, apprentices and employees; Tenn. Acts of 1875, ch. 142, § 21, servants and employees; Pa. Act of April 29, 1874, work done or material furnished; Mich. Const. (1850) art. xv, $7; Moyer v. Pennsylvania Slate Co., (1872) 71 Pa. St. 293; Weiss v. Mauch Chunk Iron Co., (1868) 58 Pa. St. 295; Reading Industrial Manuf. Co. 1. Graeff, (1870) 64 Pa. St. 395; Weigley v. Coal Oil Co., (1862) 5 Phila. 67. 4 Vincent v. Bramford, 1 Jones & S. 506; s. c. 12 Abb. Pr. (N. S.) 252. Conant v. Van Schaick, 24 Barb. 87. Cf. Williamson v. Wadsworth, 49 Barb. 294. Contra, Pennsylvania &c. R. Co. v. Leuffer, (1877) 84 Pa. St. 168. 6 Harris v. Morvell, 1 Abb. N. Cas. 127. 7 Hovey v. Ten Broeck, (1865) 3 Robt. (N. Y. Sup. Ct.) 316. 8 Chapman v. Chumar, (1889) 54 Hun, 636. 9 Sleeper v. Goodwin, (1887) 67 Wis. 577. In Short v. Medberry, (1883) 29 Hun, 39, the plaintiff was given a situation at a monthly salary of $1,000 per year by a manufacturing corporation on condition that he should obtain for the cor. 'Wakefield v. Furgo, (1882) 90 N. poration a loan of $3,000. He acted manual or menial laborers are protected by these statutes.' General agents, such as superintendents, or an overseer on a plantation, or an agent of a mining corporation employed to take charge of its mines in a foreign country,' or secretaries of manufacturing companies, are not within these statutes." And secretaries and general managers can not claim their protection by reason of performing the duties of a book-keeper in addition. The mere fact that one does some manual labor incidental to his position as manager or foreman or superintendent, will not constitute him a laborer within the intent of the statutes. Consulting engineers, assistant chief engineers 10 and contractors, are not within the meaning of these acts;" nor is a traveling salesman employed by a corporation a laborer within the constitutional provision of the constitution of Mich as foreman, helped to manufacture stone, kept time of the hands, solicited orders, and did whatever told to do by the superintendent, and it was held that he was a laborer or servant within the meaning of the statute. 1 Adams v. Goodrich, (1875) 55 Ga. 335. Cf. Heebner v. Chave, (1847) 5 Pa. St. 115; Harrod v. Hamer, (1873) 32 Wis. 162; Southworth & Jones on Manufacturing & Business Corporations, § 96. 2 Kincaid v. Dwinelle, (1875) 59 N. Y. 548. Cf. Gordon v. Jennings, 8 Q. B. Div. 45; Gurney v. Atlantic &c. Ry. Co., (1874) 58 N. Y. 358. 3 Whittaker v. Smith, (1879) 84 N. C. 340. Contra, Hovey v. Ten Broeck, (1875) 3 Rob. (N. Y. Sup. **Ct.) 316. 4 Hill v. Spencer, (1874) 61 N. Y. 274; Krauser v. Ruckel, (1879) 17 Hun, 463; Dean v. De Wolf, (1878) 16 Hun, 186. "Coffin v. Reynolds, (1868) 37 N. Y. 640, overruling Richardson v. Abendroth, 43 Barb. 163. 7 Wakefield v. Fargo, (1882) 90 N. Y. 213. 8 Krauser v. Ruckel, (1870) 47 Hun, 463; Ericsson v. Brown, (1862), 38 Barb. 390. 9 Ericsson v. Brown, (1862) 38 Barb. 390. 10 Brockway v. Innes, (1878) 39 Mich. 47. Cf. Peck v. Miller, (1878) 39 Mich. 594. 11 Aikin v. Wasson, (1862) 24 N. Y. 482; Balch v. New York &c. R. Co., (1871) 46 N. Y. 521; Atcherson v. Trov &c. R. Co., 6 Abb. Pr. (N. S.) 329; Boutwell v. Townsend, (1860) 37 Barb. 205. Cf. Kent v. New York &c. R. Co., (1855) 12 N. Y. 628; McClusky v. Cromwell, (1854) 11 N. Y. 593. Thus a stockholder is not liable as for a labor debt for money due under a contract with the corporation, whereby a contractor is to carry on certain quarrying operations at his own expense and for a period of years, in a quarry owned by the corporation, and deliver rock to the corporation at certain rates. Taylor v. Manwaring, (1882) 48 Mich. Viele v. Wells, (1882) 9 Abb. N. 171. Cas. 277. igan.' In Indiana the issue has been raised whether a corporation aggregate could be the "employee" of another corporation in the sense here used, but it was decided in the negative.2 § 158. The same subject continued.- Statutes imposing a personal liability upon stockholders for labor performed for the corporation are construed as creating a liability in addition to what remains unpaid on their subscriptions, and as imposing a personal obligation to pay for services rendered while the stockholder was a member of the company, of which he is not relieved by a transfer of his shares. It attaches to municipal corporations holding shares as well as to natural persons." The remedy is not exclusive of the common law right of such creditors to enforce the liability of shareholders upon their unpaid subscriptions. The right of action conferred is assignable and not a mere personal privilege. It is not necessary to prove a judgment against the corporation in order to maintain an action against shareholders under these statutes, but the plaintiff may prove on the trial the nature and amount of his claim, independent of any judgment. An employee is not to be regarded as having waived his right of action against the 1 Jones v. Avery, (1882) 50 Mich. 326. But see Williamson v. Wadsworth, 49 Barb. 294. 2 Dukes v. Love, (1884) 97 Ind. 341. Cf. Beecher v. Dacey, (1882) 45 Mich. 92. In this case a mercantile firm delivered goods to the laborers of a mining corporation upon orders drawn in this form: "Due A. for labor from the M. & P. Rolling Mill Co. in goods, at the store of C. E., treasurer, by G. ;" and on delivery of goods to the amount so called for, the firm stamped each order "paid." It was apparently understood that the firm should receive and honor the orders of the corporation and that the latter should settle with it every month, and pay the amount of the orders taken by it. The firm became insolvent, and had among its assets a large number of these orders, on which suits were brought as for labor debts, and for the use of the persons to whom the orders were drawn, against one of the stockholders of the corporation; and it was held that the action would not lie, and that the use of the words "for labor" in the orders, was simply to indicate the nature of the service for which they were given and not to keep them alive as against stockholders. 3 Milroy v. Spur Mountain &c. Mining Co., 43 Mich. 231. 4 Jackson v. Meek, (1888) 87 Tenn. 69; s. c. 10 Am. St. Rep. 620. 5 Shipley v. Terre Haute, (1882) 74 Ind. 297. 6 Lane's Appeal, (1885) 105 Pa. St. 49. 7 Krauser v. Ruckel, 17 Hun, 463. Sleeper v. Goodwin, (1887) 67 Wis. 579. |