A and that there must have been a mistake, but the agent 14 N. Y. Supp. 456, reversed. PPEAL from Supreme Court, General Term, Sec- Action by John J. Mulligan against the New York and Rockaway Beach Railway Company for false imprisonment. Defendant appeals from a judgment affirming a judgment entered upon a verdict for plaintiff. The material facts of this case are substantially as follows: On the afternoon of the 10th day of July, 1888, the plaintiff, accompanied by a friend, went to defendant's station at East New York and purchased tickets for passage to Rockaway Beach and back. He gave the station agent a five-dollar bill, and received back the tickets and the change, with which he passed out to the platform and he waited there for the train. In about ten minutes the ticket agent, accompanied by two policemen, came out on the platform and pointed out to the policemen the plaintiff and his friend, and said in substance that they had passed a counterfeit five-dollar bill upon him, and he directed the police officer to arrest the two men. The policemau told the ticket agent that he believed that there must be some mistake, as he knew the plaintiff and his friend to be reputable business men and could not believe that they had committed the crime. The agent however said that they had passed the counterfeit bill upon him, and that he could not be mistaken, and he ended by insisting that the policeman should arrest the plaintiff and his friend, which was accordingly done. The plaintiff and his friend were taken through the street to the police station in custody, a distance of a mile. On arriving at the police station the five-dollar bill which the plaintiff had given to the ticket agent was sent to a neighboring bank and was there pronounced good. The police sergeant sent for the ticket agent, and after he came the facts were explained to him, and he said he was sorry for what he had done, and wanted plaintiff and his friend to excuse him, after which plaintiff and his friend were discharged. They had been detained an hour or so at the police station. Subsequently plaintiff commenced this action to recover damages for the assault upon him and his arrest, and he recovered a verdict. E. P. B. Hinsdale, for appellant. O'BRIEN, J. The plaintiff recovered damages in this case upon an allegation that he was unlawfully arrested and imprisoned by the defendant. The legal question involved relates to the responsibility of the defendant for the conduct of a ticket agent under the following circumstances: On the 10th of July, 1888, the plaintiff and a companion went to the defendant's statiou at the corner of Atlantic avenue and Vesta street, Brooklyn, and procured from the ticket agent there two excursion tickets to Rockaway Beach. The plaintiff handed to the agent a new five-dollar bill in payment for the tickets, and received from him the tickets and the change. A very short time before the plaintiff and his friend appeared at the station and purchased the ticket, a detective connected with the Brooklyn police force came to the station and left with the agent the following paper: "Look out for three men passing $5.00 counterfeit bills. Garfield's picture. One 35 years, blue coat, black slouch hat, small dark mustache; one 40 years, dark alpaca coat, black pants, slouch hat; the other 35 years, blue suit, black slouch hat, full red whiskers, looks like Italian.” When the plaintiff and his companion came to the station the ticket agent supposed they were two of the persons described in the notice left with him by the detective. The agent's statement as to what took place between himself and the detective before the plaintiff appeared at the station, and his action in consequence down to the time of the arrest, is not contradicted. The agent was told by the detective that, if any of these men referred to in the paper put in an appearance, to have the officers arrest them. He says that the two men walked up to the window of the ticket office and the plaintiff took a brand new five-dollar bill from his pocket and asked for two tickets for Rockaway Beach and return. What the agent then did is perhaps best expressed in his own language. He says: "I took the money from him, and gave him the two tickets. Didn't let on any thing at the time. Took the bill and left it one side, because it looked 'queer.' After the two went outside a messenger boy came in. I took the bill up before the messenger came. Took a pin and pulled to find the two parallel silk threads that ran through the bill, it appears in all these kind of bills that are made with the distributor fiber through; it is like a pencil mark, red and blue, and when I picked at it I could not see any thing in it, and as I have no instructions to arrest anybody I took the bill and when the messenger boy came in I told him to take the bill. go up to the Howard House and see if he could find Detective McFeany. If he did, to give him the bill and tell him that the men who had the bill were here at the station. I told him that if he didn't find him to give it to the ticket agent at the Howard House. The detective said something about giving him the bill, and to ask him if that was the bill. I sent the bill away by this boy--the same bill that I received. Afterward Officer Kenney and the messenger boy came in. The bill was not returned to me. I never had the bill after I gave it to the messenger boy." It seems that in consequence of the action of the agent the police arrived in a short time after the tickets had been purchased, and while the plaintiff and his companion were sitting on a bench outside, and as the plaintiff claims, the agent pointed him out to the police and directed them to arrest him. He was arrested and brought to the police court, when it appearing that the bill was good he was discharged. The transaction immediately preceding the arrest is thus described by the plaintiff: "I went in and handed in a five-dollar bill to the ticket agent. Asked him for two return tickets for Rockaway. He took the bill and looked at me. I thought it was some young man that might have known me, he was going so slow, going to make the change, and give me the tickets, and walked back in the rear of the office. There was an operator-a lady-sitting there. He had some conversation with her, and in another corner was a boy, in another corner of the room. He came back to me and looked at me again. I says, You ought to be in a little more hurry than that.' He didn't say a word, but handed me out the change and my return tickets-the change of the five-dollar bill, which I think was four thirty, or whatever it was. Then we walked out on the platform, down on the Atlantic avenue side, and sat on the bench of the station platform for ten or fifteen minutes waiting for the train to come up. It is a regular platform. I think there is a porch over it. I did not have to pass through a gate to go to it." After the plaintiff was pointed out to the police by the agent he was brought into the ticket office, and the agent then charged him with having passed to him a five-dollar counterfeit bill, which the plaintiff denied, but gave to the agent another bill in its place. The agent denied that he gave any direction to the police to make the arrest, and there was some question on the trial as to whether the bill that was actually passed by the plaintiff was the bill produced before the police magistrate and found by him to be good, but these questions must be regarded as settled in the plaintiff's favor by the verdict of the jury. Assuming, as we must, that the agent directed the arrest, and that the plaintiff had committed no offense that justified it, the question still remains whether the agent was acting in the line of his duty, so as to make the defendant responsible for his acts. It is quite clear from the evidence that the agent was first put upon his guard, and in fact set in motion, not by any direction from the defendant, but by the police. When he took the bill he knew, or at least believed, it to be a counterfeit; but notwithstanding this, he gave the plaintiff defendant's property for it, whereas it was his duty, considering him merely as the agent of the defendant, to refuse it. He did not take the bill in the course of his business as agent, but for the purpose of entrapping persons that he believed to be engaged in the commission of crimes. This may have been laudable enough on his part as a citizen or as a person aiding the police, but he was not acting in the line of his duty as defendant's agent. If he had been cheated or imposed upon by the plaintiff, or if he honestly believed he had been, and then attempted to recover what he had or supposed he had lost by the arrest of the plaintiff, it might then be said that he was engaged in the protection of the property and interests of the defendant, and therefore acting within the line of his duty. But here a ticket agent of a railroad deliberately takes from a person applying to purchase a ticket what he believes to be a counterfeit five-dollar bill, not of course in good faith, or in the regular and ordinary course of his business, but for the purpose of aiding the police in the detection of criminals, and then immediately directs the arrest of the person from whom he took the bill. Such an act on his part is not binding on his principal. If he was in fact acting within the scope and in the line of his duty, he would have refused to receive what he believed to be counterfeit money for the property of his principal, and would have refused to part with such property, except upon receipt of what at least he believed to be good money. The defendant, as a citizen, might with perfect propriety render to the police such services as he could in procuring the detection and arrest of persons engaged in passing counterfeit money, but it does not follow that all his acts in that respect are binding on the defendant. The charge therefore that the defendant procured the plaintiff to be arrested without cause was not made out, as the act of the ticket agent in this respect cannot be attributed to them. The remaining question is whether it was shown that the defendant is liable for a breach of its contract with the plaintiff as a passenger, or for neglect of any duty it owed to him growing out of the relation of passenger and carrier. The law is settled that a common carrier, by its contract of transportation, undertakes to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to him. Stewart v. Railroad Co., 90 N. Y. 588. Upon the facts disclosed by the record it is very difficult to bring this case within that principle. All we know with respect to the duties of the agent is that he sold tickets at the station from a place behind a window in the waiting-room. It does not appear that he had any charge of the place where the plaintiff was when arrested, or that the plaintiff was, within the meaning of the decisions, in his custody, or under his protection, or that the ticket agent was intrusted by the defendant with any powers or duties with respect to the execution of contracts for the transportation of passengers. Upon the facts disclosed at the trial it would be quite difficult, if not impossible, to classify the act of the agent in pointing out the plaintiff to the police and directing his arrest as negligence or willful misconduct. There can be no doubt that a conductor or like agent of a carrier of passengers, who has them in his charge and under his care, may violate the duty which he owes to them by directing an arrest without cause, for which his principal may be held liable, but sufficient was not shown in this case to bring it within that rule. The judgment should be reversed and a new trial granted, costs to abide the event. ANDREWS, PECKHAM and GRAY, JJ., concur. EARL, J. (dissenting). The plaintiff purchased of the defendant's agent at East New York two tickets for himself and friend to Rockaway Beach and back over its railway, and immediately passed out of the depot building onto the platform outside, where he took a seat under an awning, upon a bench provided for passeugers who were awaiting trains. By the purchase of these tickets the relation of carrier and passenger was created between him and it; its agreement, implied from the facts, being that it would, upon its first train stopping at that station, carry him to his destination. The train was soon expected, and while he was there waiting for it he was entitled to a safe place to stand or sit, and it was under obligation to him that he should not be injured by the careless or willful misconduct of any of its employees or agents. Carpenter v. Railroad Co., 97 N. Y. 494. In that case, after the plaintiff had purchased his ticket for a passage on the defendant's road, and while he was standing on the platform at the depot, a postal clerk threw a mail-bag from the train which struck and injured him, and Danforth, J., writing the opinion, said: "The plaintiff was injured before the actual commencement of his journey, but he was lawfully on the platform because he was a passenger." And it was held that it is the duty of a railroad corporation to provide for a passenger a safe passage to the train he desires to take and to take reasonable care that he shall not, while on its premises, be exposed to any unnecessary danger, or to one of which it is aware; that it is bound to exercise the utmost vigilance, not only in guarding its passengers against careless interference by others, but even against violence, and if in consequence of neglecting this duty a passenger receives injury which, in view of all the circumstances, might have been reasonably anticipated, it is liable. No one will question that, if the plaintiff, while sitting upon the bench waiting for the train, had been injured by the carelessness of one of the defendant's employees, it would have been liable, and it is now well settled that where a railroad company would be liable for the careless act of its employee it would also be liable for his willful or malicious act, causing injury to a passenger whom it was bound to keep and carry safely. In White v. Railroad Co., 20 N. Y. Week. Dig. 510, it was held that, if a passenger on a street railway is ejected from the car and assaulted by the driver, when the fare has been put in the box, the company is liable, and also for causing the arrest of the passenger. In Hamel v. Ferry Co. (Sup.), 6 N. Y. Supp. 102; affirmed in this court, 125 N. Y. 707, the action was for assault and battery and false imprisonment, and it was held that the court correctly charged that, if the defendant's employee unjustifiably assaulted the plaintiff while and because plaintiff attempted to pass through a gate which the employee was in charge of, and as part of announced in the cases cited he was entitled to pro- the same transaction, and assuming to act under the defendant's authority, called in a police officer and had the plaintiff arrested, defendant was liable, and that it was immaterial whether it authorized the arrest or not. In Stewart v. Railroad Co., 90 N. Y. 588, where the plaintiff was a passenger on one of the defendant's street cars, and was unjustifiably assaulted and beaten by the driver, it was held in an action to recover damages therefor that it was liable; that the rule relieving a master from liability for a malicious injury inflicted by his servant, when not acting within the scope of his employment, does not apply as between a common carrier of passengers and a passenger; that such a carrier undertakes to protect the passenger against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger. In that case Judge Tracy, writing the opinion of the court, cited many authorities, aud among other things said: "In the present case the defendant had intrusted the execution of the contract to the driver of the car, and the plaintiff was under his protection. Any breach of the contract committed by the driver was a breach committed by the defendant. It is conceded that any injury arising from the mere negligence of the servant constitutes a breach of the contract. Had the driver, while executing the contract, carelessly and negligently injured the plaintiff, the defendant's liability would not have been doubted. Can it be less a breach of the contract that the injury was intentionally inflicted? An act which would amount to a breach of the carrier's contract if negligently done, would be equally a breach if done willfully and maliciously. It is immaterial whether a breach of contract results from the negligence or willfulness of the defendant's agent. It is the injury that was suffered by the plaintiff while in the defendant's car, and not the motive which induced it, that constitutes the gist of the action. No reason exists for holding a master liable for the negligence of servants in his employment which does not with equal force preclude him from alleging intentional default of the servant as an excuse for not performing a duty which he has undertaken. In the former case the negligence of the servant is that of the master, and that is the ground of the master's liability; in the latter the act of the servant is the act of the master, the motive of the servant making no difference in regard to the legal character of the master's default in doing his duty. ** * A rule which should make the carrier liable when the act resulting in the injury was carelessly but unintentionally done, and exonerate him when the injury was the result of the intentional act of the servant, would lead to most absurd results." In Dwinelle v. Railroad Co., 120 N. Y. 122, it was held that a railroad company, by the sale of a ticket for passage on its road, assumes the obligation and undertakes absolutely to protect the passenger against any injury from negligence or willful misconduct of its servants while performing its contract, and that whatever may be the motive which incites the servant to commit an unlawful or improper act toward the passenger during the existence of the relation of carrier and passenger, the carrier is liable for the act and its natural and legitimate consequences. In such a case too it has been held that it is wholly immaterial upon the question of the defendant's liability that the servants acted in good faith. Hamilton v. Railroad Co., 53 N. Y. 25. In that case the relation of carrier and passenger having been created by the purchase of the tickets, the plaintiff was just as much entitled to protection against the wrongful acts of the defendant's servants as if at the time of the assault upon him and his arrest he had been in one of the cars. He was in a place where he had a right to be, and where under the rules of the law We therefore see no reason to doubt that the judgment in favor of the plaintiff is right and should be affirmed with costs. FINCH, J., coucurs. CORPORATIONS-INSOLVENCY-RIGHTS OF MINNESOTA SUPREME COURT, JAN. 18, 1892. 1 a sequestration proceeding under chapter 76 of the General Statutes, upon the complaint of any interested creditor who has become a party to the proceeding. The right of creditors to compel the holders of "bonus stock to pay for it contrary to their actual agreement with the corporation rests solely on the ground of fraud, and payment can never be enforced in favor of one who became a creditor before the "bonus" stock was issued. It is not necessary that a "subsequent" creditor should allege that when he dealt with the corporation he believed that the stock had been paid for, and that he gave credit on the faith of it. Where a creditor asks for such relief against a stockholder, and it appears that ho is not the original creditor, but purchased the claims after the corporation had become insolvent, and its affairs had been placed in the hands of a receiver, he should state what he paid for the claims, or at least show that he paid a substantial consideration for them. The right of action in favor of creditors against the holders of such bonus stock does not accrue until the corporation becomes insolvent, A claim of this kind in favor of creditors against the estate of a deceased stockholder before the assets of the corporation are fully administered, is a "contingent claim" within the meaning of chapter 53 of the General Statutes. Harvey Officer, for appellant St. Paul Trust Company. Flandrau, Squires & Cutcheon and Davis, Kellogg & Severance, for respondent. MITCHELL, J. This appeal is from an order overruling a demurrer to the so-called "supplemental complaint" of the Minnesota Thresher Manufacturing Company. The Northwestern Manufacturing and Car Company was a manufacturing corporation organized in May, 1882. Upon the complaint of a judgment creditor (Hospes & Co.), after return of execution unsatisfied, judgment was rendered in May, 1884, sequestrating all its property, things in action and effects, and appointing a receiver of the same. This receivership still continues, the affairs of the corporation being not yet fully administered, but it appears that it is hopelessly insolvent, and that all the assets that have come into the hands of the receiver will not be sufficient to pay any considerable part of the debts. The Minnesota Thresher Manufacturing Company, a corporation organized in November, 1884, as creditor, became a party to the sequestration proceeding, and proved its claims against the insolvent corporation. In October, 1889, in behalf of itself and all other creditors who have exhibited their claims, it filed this complaint against certain stockholders (these appellants) of the car company in pursuance of an order of court allowing it to do so, and requiring those thus impleaded to appear and answer the complaint. The object is to recover from these stockholders the amount of certain stock held by them, but alleged never to have been paid for. What was said in Meagher Case, 50 N. W. Rep. 1114 (just decided), is equally applicable here as to the right to enforce such a liability in the sequestration proceeding upon the petition or complaint of creditors who have become parties to it. There is nothing in | this practice inconsistent with what was decided in Thresher Co. v. Langdon, 44 Minn. 37. The complaint is not the commencement of an independent action by creditors in their own behalf antagonistic to the rights of the receiver, but is filed in the sequestration proceeding itself and in aid of it. The principal question in the case is whether the complaint states facts showing that the thresher company, as creditor, is entitled to the relief prayed for, or, in other words, states a cause of action. Briefly stated the allegations of the complaint are that on May 10, 1882, Seymour, Sabin & Co. owned property of the value of several million dollars, and a business then That in order to continue supposed to be profitable. and enlarge this business, the parties interested in Seymour, Sabin & Co., with others, organized the car company, to which was sold the greater part of the assets of Seymour, Sabin & Co. at a valuation of $2,267,000, in payment of which there were issued to Seymour, Sabin & Co. shares of the preferred stock of the car company of the par value of $2,267,000, it being then and there agreed by both parties that this stock was in full payment of the property thus purchased. It is further alleged that the stockholders of Seymour, Sabin & Co., and the other persons who had agreed to become stockholders in the car company, were then desirous of issuing to themselves, and obtaining for the car company, their own benefit, a large amount of common stock of without paying therefor and without incurring any liability thereon or to pay therefor," and for that purpose, and "in order to evade and set at naught the laws of this State," they caused Seymour, Sabin & Co. to subscribe for and agree to take common stock of the car company of the par value of $1,500,000. That Seymour, Sabin & Co. thereupon subscribed for that amount of the common stock, but never paid therefor any consideration whatever, either in money or property. That thereafter these persons caused this stock to be issued to D. M. Sabin as trustee, to be by him distributed among them. That it was so distributed without receipt by him or the car company from any one of any consideration whatever, but was given by the car company and received by these parties entirely "gratuitously." The car company was at this time free from debt, but afterward became indebted to various persons for about $3,000,000. The thresher company, incorporated after the insolvency and receivership of the car company, for the purpose of securing possession of its assets, property and business, and therewith engaging in and continuing the same kind of manufacturing, prior to October 27, 1887, purchased and became the owner of unsecured claims against the car company, "bona fide and for a valuable consideration," to the aggregate amount of $1,703,000. As creditor, standing on the purchase of these debts, which were contracted after the issue of this "bonus" stock, the thresher company files this complaint to recover the par value of the stock as never having been paid for. The complaint does not allege what the consideration of these debts was, nor to whom originally owing, nor what the intervenor paid for them, nor whether any of the original creditors trusted the car company on the faith of the bonus stock having been paid for. Neither does it allege that either the thresher company or its assignors were ignorant of the bonus issue of stock, nor that they or any of them were deceived or damaged in fact by such issue, nor that the bonus stock was of any value. Neither is there any traversable allegation of any actual fraud or intent to deceive or injure creditors. A desire to get something without paying for it, and actually getting it, is not fraudulent or unlawful if the donor consents, and no one else is injured by it, and the general allegation that it was done "in order to evade and set at naught the laws of the State" of itself amounts to nothing but a mere conclusion of law. As a creditors' bill, in the ordinary sense, the complaint is manifestly insufficient. The thresher company however plants itself upon the so-called "trust-fund" doctrine that the capital stock of a corporation is a trust fund for the payment of its debts; its contention being that such a "bonus" issue of stock creates, in case of the subsequent insolvency of the corporation, a liability on part of the stockholder in favor of creditors to pay for it, notwithstanding his contract with the corporation to the contrary. This "trust-fund" doctrine, commonly called the "American doctrine," has given rise to much confusion of ideas as to its real meaning, and much conflict of decision in its application. To such an extent has this been the case that many have questioned the accuracy of the phrase, as well as doubted the necessity or expediency of inventing any such doctrine. While The a convenient phrase to express a certain general idea, it is not sufficiently precise or accurate to constitute a safe foundation upon which to build a system of legal rules. The doctrine was invented by Justice Story in Wood v. Dummer, 3 Mason, 308, which called for no such invention, the fact in that case being that a bank divided up two-thirds of its capital among its stockholders without providing funds sufficient to pay its outstanding bill-holders. Upon old and familiar principles this was a fraud on creditors. Evidently all that the eminent jurist meant by the doctrine was that corporate property must be first appropriated to the payment of the debts of the company before there can be any distribution of it among stockholders, a proposition that is sound upon the plainest principles of common honesty. In Fogg v. Blair, 133 U. S. 541, it is said that this is all the doctrine means. The expression used in Wood v. Dummer has however been taken up as a new discovery, which furnished a solution of every question on the subject. The phrase that the capital of a corporation constitutes a trust fund for the benefit of creditors," is misleading. Corporate property is not held in trust in any proper sense of the term. A trust implies two estates or interests, one equitable and one legal, one person as trustee holding the legal title, while another as the cestui que trust has the beneficial interest. Absolute control and power of disposition are inconsistent with the idea of a trust. capital of a corporation is its property. It has the whole beneficial interest in it, as well as the legal title. It may use the income and profits of it, and sell and dispose of it, the same as a natural person. It is a trustee for its creditors in the same sense and to the same extent as a natural person, but no further. This is well illustrated and clearly announced in the case of Graham v. Railway Co., 102 U. S. 148. That was a creditors' suit to reach a piece of real estate on the ground that it had been conveyed by the corporation fraudulently for a wholly inadequate consideration. The trust-fund doctrine was invoked by a subsequent creditor, and it was claimed that, as the trust had been violated, the deed should be set aside. If the premise was correct that the corporation held it in trust for creditors, the conclusion was inevitable, but the court denied the premise, saying that the corporation is in law as distinct a being as an individual is, and is entitled to hold property (if not contrary to its charter) as absolutely as an individual can hold it. Its estate is the same, its interest is the same, its possession is the same, and that there is no reason why the disposal by a corporation of any of its property should be questioned by subsequent creditors any more than a like disposal by an individual; that the same principles of law apply to each. That the phrase that "the capital of a corporation is a trust fund for the payment of its creditors" is misleading, if not inaccurate, is illustrated by the character of the actions that are frequently For ex mistakenly instituted on the strength of it. ample, in the case of Railroad Co. v. Ham, 114 U. S. 587, two roads had been consolidated, the new company acquiring the property of the old ones. A creditor of one of the old companies, on the strength of the "trust-fund" doctrine, claimed a lien on its property in the hands of the new corporation. If this property was impressed with a trust in favor of creditors in the hands of the old company, it would logically follow that it would continue so in the hands of the new one. But the court denied the relief, and in giving its construction of the "trust-fund " doctrine, said: "The property of a corporation is doubtless a trust fund for the payment of its debts in the sense that when the corporation is lawfully dissolved, and all its business wound up, or when it is insolvent, all its creditors are entitled in equity to have their debts paid out of the corporate property before any distribution thereof among stockholders. It is also true, in the case of a corporation as in the case of a natural person, that any conveyance of the property of the debtor without authority of law and in fraud of existing creditors is void." This is probably what is meant when it is sald in some cases, as in Clark v. Bever, 139 U. S. 110, that the capital of a corporation is a trust fund sub modo. If so no one will dispute it. But it means very little, for the same thing could be truthfully said of the property of an individual or a partnership. And obviously it would make no difference whether the disposition of the corporate property is to a stranger or to a stockholder, except that of course the latter could not be an innocent purchaser. There is also much confusion in regard to what the "trust-fund "doctrine applies. Some cases seem to hold that unpaid subscribed capital is a trust fund, while other assets are not; that is, so long as the subscription is unpaid, it is held in trust by the corporation, but when once paid in it ceases to be a trust fund, while other cases hold that, paid or unpaid, it is all a trust fund. The first seems to be the rule laid down in Sawyer v. Hoag, 17 Wall. 610, in which the "trustfund" doctrine was first squarely announced by that court with all the vigor and force characteristic of the great jurist who wrote the opinion. In that case a stockholder in an insurance company had given his note, as the court found the fact to be, for eighty-five per cent of his subscription to the stock of the company. After the company had become bankrupt, and the stockholder knew the fact, he bought up a claim against the company for one-third its face, and in a suit by the assignee in bankruptcy on his note set up this claim as an offset. That this would have been a fraud on the Bankrupt Act, and at least a moral fraud on policy-holders, is quite apparent without invoking the "trust-fund" doctrine, and if the note for unpaid stock was a trust fund there could have been no offset, whether the company was solvent or insolvent. In the opinion it is said that "if the subscription had been paid by the note or otherwise, the note censed thereby to be a trust fund to which creditors can look, and became ordinary assets with which directors may deal as they choose." But in Upton v. Tribilcock, 91 U. S. 45, it is stated: "The capital paid in and promised to be paid in is a fund which the trustees cannot squander or give away." While in Sanger v. Upton, 91 U. S. 56, It is said: "When debts are incurred a contract arises with the creditors that it (the capital) shall not be withdrawn or applied otherwise than upon their demands until such demands are satisfied." And in the same connection it is distinctly stated that there is Lo difference between assets paid in and subscriptions; that "unpaid stock is as much a part of this pledge and as much a part of the assets of the company as the cash which has been paid in upon it; that creditors have the same right to look to it as to any thing |