Baker v. Atkins , 62 Me. 205 ( 1873 )

Appleton, C. J.

This is a bill in equity brought by the receivers of the American Bank by order of this court under the provisions of R. S. of 1857, c. 47, § 73, against the defendants as stockholders of the same to compel them to contribute to the payment of its debts, the assets of the bank having been found and adjudged insufficient to pay the claims against the bank.

The defendants have demurred to the bill and assigned various causes of demurrer. As the demurrer admits all facts duly set forth in the bill, the only question now to be considered is whether it states any cause of action against the respondents.

(1) The bill is properly inserted in a writ of attachment, and it is not required to be verified by oath, inasmuch as no discovery is sought and there is no prayer for an injunction.

(2) This bill is against the holders of the stock of the bank when the injunction previously granted was made perpetual. The bill by § 73 is to be filed against such stockholders and not against the directors as such.

(3) It seems that certain persons deceased were owners of shares, whose representatives are not made parties to the bill. But it is alleged that they are not made parties to this bill “because their estates have been settled and closed up and all claims against them are barred by the statute of limitations, or they died insolvent and no administration was granted on their estates.” Then there were other stockholders, who died out of the State having no property in it, and some who have been discharged under the bankrupt act of the United States, passed March 2, 1867.

It is objected that these several classes were not included in the bill as parties. But the bill gives goodTeasons for not so including them. The demurrer admits the truth of the several facts stated on account of the existence of which the parties were omitted, to whose omission exception is taken.

But the defendants cannot be harmed in any way, as the assessment made by the court was upon all the shares, and it is of no consequence whatever to them whether the other stockholders are joined or not, inasmuch as the amount of their liability has been fixed and will not be increased nor diminished, whether the parties whose names are not included in the bill were inserted or not.

(4) The plaintiffs in their bill allege that they stated in their reports all the assets that came into their hands, and that there was, and now is a deficiency, after applying the assets in payment of the claims of the bank, of $31,290; that their report was accepted by the court; that it appearing to the court that the assets were insufficient to pay the bills of the bank duly proved and allowed by the sum of $31,290, a judgment of the court was entered up accordingly and that sum was ordered to be assessed on all the shares of the bank held by stockholders, amounting to forty-two dollars on each share, and that they were ordered hy said court to bring this bill in equity against said stockholders to enforce the collection of the same.

The costs, expenses and deductions were all presented to and adjudicated upon by the court. The judgment of the court shows the actual deficiency, winch remained to be apportioned among the several stockholders. If there was any mistake or error in that adjudication, it cannot be reached by demurrer.

All the previous proceedings we must assume to be correct in the entire absence of anything indicating the reverse. The bill therefore is strictly within the provisions of the section (73) under which it is sought to be maintained.

(5) The liability of holders of stock under R. S. of 1857, § 46, continues only two years after notice of the expiration of the charter of the bank has been given in the State paper. The hill does not allege that any notice has been given under this section. It does not therefore appear that the limitation provided for in this section has commenced running. How far the liability of the defendants is affected by this limitation in the present proceedings is not now before us for our consideration or determination.

The remedy adopted is that provided by statute, and the allegations in the bill show a compliance with the provisions of the statute, requisite to its maintenance. Demurrer overruled.

Cutting, Dickerson, Daneorth, Virgin and Peters, JJ., concurred.