Superintendent of Banks of New York v. Fenton , 294 Mass. 524 ( 1936 )

Lummus, J.

This case, like Superintendent of Banks of New York s. Moors, ante, 518, just decided, is an action to recover an assessment upon a stockholder in the Bank of United States. The declaration set out the facts and the levy of an assessment as shown in the opinion in that case. The defendant demurred to the declaration, and also filed a “plea in abatement,” setting up (1) that the remedy should be in equity, (2) that the proceeding should have been brought in the Supreme Judicial Court instead of the Superior Court, and (3) that the liability can be enforced only by a receiver appointed in this Commonwealth. The demurrer and the “ plea” were sustained, and the case was reported.

The points that the remedy should be in equity, and that the liability can be enforced only by a receiver appointed in this Commonwealth, are disposed of by Superintendent of Banks of New York v. Moors, ante, 518. There is nothing in the point that the proceeding should have been brought in the Supreme Judicial Court under G. L. (Ter. Ed.) c. 167, § 24. That section relates to the liability of stockholders in domestic banks, not to contract obligations arising elsewhere. Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128. The declaration set out a good cause of action. Superintendent of Banks of New York v. Moors, ante, 518.

Order sustaining demurrer and plea reversed.