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and out, transfer would not be adequate to | relieve the seller from his liability as a stockholder if the sale was made by him to escape his impending liability, and to a person whom he knew, or had reason to know, was financially irresponsible. As the views hitherto expressed are conclusive of the meaning of the act of Congress, we deem it unnecessary to refer to the many cases from state courts of last resort construing state statutes referred to in the argument. Affirmed.

[56]*WILLIAM E. HALE, as Receiver, etc., Pe titioner.

v.

EDWARD P. ALLINSON et al.

(See S. C. Reporter's ed. 56-81.)

Courts-jurisdiction-suit by receiver in

foreign jurisdiction-equity—multiplicity

2.

3.

was appointed have held that such an action cannot be maintained by him in the courts of that state.

Equity is without jurisdiction, on the ground of the prevention of a multiplicity of suits, of a suit to enforce the statutory liability of the stockholders of a foreign corporation, in which the amount demanded is the fuli amount of the par value of the shares held by each defendant.

A suit to enforce the statutory liability of stockholders in a foreign corporation cannot be maintained in a court of equity on the theory that it is an ancillary or auxiliary proceeding brought in aid of and to enforce an equitable decree of a court of the state where the corporation resides in a suit to enforce the liability of its stockholders, where the nonresident stockholders were merely nominal parties in that suit, and no judgment was rendered against them because of a want of jurisdiction over them.

[No. 77.]

of suits-ancillary remedy-suit to en- Argued November 6, 7, 1902. Decided Janforce stockholder's liability.

1. A receiver appointed by a court of equity in the exercise of its general jurisdiction cannot, by virtue of his appointment and the direction to sue contained therein, maintain a

uary 19, 1903.

WRIT of Certiorari to the United

O`States Circuit Court of Appeals for the suit in equity in a foreign jurisdiction to en- Third Circuit to review a judgment which force the statutory liability of stockholders affirmed a judgment of the Circuit Court In an insolvent corporation, especially where for the Eastern District of Pennsylvania the courts of the state where the receiver' sustaining a demurrer to a bill to enforce NOTE. On the rights of receiver as to prop- | zens of the state in which the sult is brought, erty outside of the jurisdiction in which he is or violate its policy or laws, and that the appointed--see note to Gilman v. Hudson River suit may therefore be maintained on principles Boot & Shoe Mfg. Co. (Wis.) 23 L. R. A. 52. of comity. Castleman v. Templeman, 87 Md. On the right to enforce stockholder's liabil-546, 41 L. R. A. 367, 40 Atl. 275. ity outside of the state of incorporation-see "When an action by a foreign receiver to note to Cushing v. Perot (Pa.) 34 L. R. A. 737. collect assets, under the authority of the court On the jurisdiction of equity where the rem edy at law exists-see notes to Meldrum v. Meldrum (Colo.) 11 L. R. A. 65; Delaware, L. & W. R. Co. v. Central Stock Yards & Transit Co. (N. J. Eq.) 6 L. R. A. 855; and Tyler v. Savage, 36 L. ed. U. S. 83.

Right of receiver to enforce liability of carporate stockholder outside of the state of his appointment.

While the foreign appointment of a receiver of a corporation does not create an absolute right to sue in another state, the privilege of maintaining such suit is quite generally extended to him on principles of comity, where this will not defeat the remedies of resident creditors. See note to Gilman v. Hudson River Boot & Shoe Mfg. Co. (Wis.) 23 L. R. A. 52, on the rights of receiver as to property outside of the jurisdiction in which he is appointed.

cases

This principle has been applied to where the foreign receiver of a corporation attempts to enforce the liability of a stockholder outside of the state of his appointment. And it has been held that an action to collect the amount found due and payable may be main tained by him in a Federal court sitting in another state, where it will not violate the policy of the state or interfere with the interests of domestic creditors. Burr v. Smith, 113

Fed. 858.

And that the enforcement by a foreign receiver of the payment of subscriptions to the capital stock of the corporation, where there are no resident creditors or other persons interested in the distribution of its assets, does not injuriously affect the interests of the citi

which appointed him, works no detriment to
any citizen of this state, and is not repugnant
to its policy, it would be a provincial and nar-
row view," says Vann, J., in Howarth v. Angle.
162 N. Y. 179, 47 L. R. A. 725, 56 N. E. 489.
"for our courts to refuse to extend the usual
state comity. There is a close business con-
nection between the citizens of the different
states of the Union. Investments are freely
made in other states by the citizens of this
state, who need the aid of the courts of the
jurisdiction where the investments are made.
The comity which we expect to have extended
to citizens of our state we cannot, in justice,
refuse to citizens of other states. State lines
should not prevent justice from being done.
Our courts should not close their doors to a
receiver from another state, who comes here
armed with the title to a just claim against a
citizen of this state, and offers to establish by
common-law evidence the ability of that clt-
izen.
While we should keep control of the sub-
ject, so as to see that no discrimination is
practised against our citizens, or injustice done
them either as to the substance of the liability
or the method of procedure, when the same re-
sult is attained in practically the same way
as, under similar circumstances, would be at-
tained in the case of a domestic corporation,
there is no reason for withholding that ald
which is now afforded by the courts of almost
all enlightened countries." Here the amount
of the stockholder's liability had been definitely
ascertained, and was only his proportion of
the ascertained deficiency of assets, and it did
not appear that there was any other stock-
holder or any creditor of the corporation in
New York, or that injury would be done to

the liability of stockholders of a foreign corporation. Affirmed.

See same case below, 45 C. C. A. 270, 106 Fed. 258.

proceedings instituted, under the Minnesota statute, in the district court of Hennepin county, which court had jurisdiction, and the Minneapolis Trust Company was appointed a receiver of the corporate assets, and took possession thereof, and proceeded to the discharge of its duties. In November, 1893, one Arthur R. Rogers, who was the assignee of a judgment creditor of the corporation, whose execution against it had been returned wholly unsatisfied, filed a bill in equity in the Minnesota state court, in behalf of himself and all other creditors of the loan company, against that company and all its stockholders, for the purpose of creditors, provided for by the statutes of Minnesota. Out of about five hundred stockholders, some twenty-three only resided in the state of Minnesota and were served with process.

Statement by Mr. Justice Peckham: This case comes here by virtue of a writ of certiorari directed to the circuit court of appeals for the third circuit. It is a suit in equity brought by a foreign receiver, in [57]the United States *circuit court for the eastern district of Pennsylvania, to enforce the liability of stockholders, residing in Penn sylvania, of the Northewestern Guaranty Loan Company, a corporation of Minnesota. Demurrers were filed, setting up, among enforcing the stockholders' liability to the other grounds, that the receiver appointed under proceedings in Minnesota had no right to sue in any court of a foreign jurisdiction; also that, even if the receiver had the right to sue, there was an adequate remedy at law for whatever rights might exist in the receiver or any other person, and that no ground of equitable jurisdiction was stated. The circuit court sustained the demurrer on the ground that the remedy, if any the complainant had, was at law. 102 Fed. 790. The judgment was affirmed by the circuit court of appeals for the third circuit. 45 C. C. A. 270, 106 Fed. 258.

The facts are these: In May, 1893, the loan company was adjudged insolvent in any citizen of the state, or any established policy of the state interfered with.

So, in Pugh v. Hurtt, 52 How. Pr. 22, it was held that a receiver appointed in another state may be allowed by comity to bring suit against a resident to enforce his ability as stockholder in an insolvent corporation.

And a receiver of a foreign corporation was allowed to recover on a bill in chancery against an executrix of a deceased stockholder, in the case of Mann v. Cooke, 20 Conn. 178. In this case the shares had been surrendered by the subscriber to the company after its insolvency, and, besides this, he had paid 50 per cent of his subscription, which by his agreement was all that the company required of him.

The creditors of the loan company, as required by the court, came in and proved their debts against the company, but none of the nonresident stockholders had been served with process in the action, and not one of them appeared therein. It was adjudged that the defendants who were named as resident stockholders of the loan company, and over whom the court had acquired jurisdiction by the service of process upon them, *were liable, to the extent of the [58] claim being that such a proceeding can only be had as a result of comity between the states, and that the basis of such an exercise is that the citizens of the state granting it shall not be thereby prejudiced or injured. Admitting, for the sake of argument, the rule that comity controls as to the authority of plaintiff to sue in this state, and, as we have in effect said, the record leaves us without doubt that its exercise should be denied, because it would be in contravention of the rights of our citizens, and operate to their injury."

It would seem that the principles of comity should not require a state to extend greater consideration to a foreign receiver than he is accorded at home, and that, therefore, unless But a receiver of a corporation appointed in a similar action might be maintained by him another state will not be allowed by the ex- in the state of his appointment, he has no . ercise of comity to sue to enforce the liability standing in a foreign jurisdiction. And in a of stockholders, when it would be in contra- number of cases where his right to maintain vention of the rights of the citizens of the such a suit has been sustained (Cuykendall v. state and operate to their injury. Wyman Miles, 10 Fed. 342; Sheafe v. Larimer, 79 Fed. v. Eaton, 107 Iowa, 214, 43 L. R. A. 695, 75 921; Howarth V. Ellwanger, 86 Fed. 54: N. W. 865. Here the obligation sought to be Howarth v. Lombard, 175 Mass. 570, 49 L. enforced was a subscription to the capital R. A. 301, 56 N. E. 888; Howarth v. Angle, stock of an insurance company which was to 162 N. Y. 179, 47 L. R. A. 725, 56 N. E. be formed in two separate states and there- 489, Affirming 39 App. Div. 151, 57 N. Y. Supp. after consolidated. The consolidation was 187; Wigton v. Kenney, 51 App. Div. 215, 64 never effected, but each company, having N. Y. Supp. 924), the court has been careful changed its name, continued to do business in to refer to his power in the state of his apthe state of its incorporation. The court said:pointment.

"There is not, In view of the entire record Thus, in Howarth v. Ellwanger, 86 Fed. 54, in this case, an equitable consideration favor-supra, the court says that a receiver of a corable to a recovery against these defendants.poration is the only person who, under the The present liabilities of the Nebraska corpo- laws of the state of his appointment, can enration cannot truthfully be said to have accrued force, under the direction of the court, the In consequence of, or with reliance upon, the individual liability of the stockholders. former connection of these defendants with the enterprise from which sprang the present company. These facts are important as aiding in the solution of a legal proposition, urged by appellees, to the effect that this action cannot be maintained in Iowa, because it is brought by a receiver of a Nebraska corporation to enforce a provision of the law of that state; the

And in Howarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888. supra, the receiver was said to have, under the laws of the state of his appointment, the legal title to the fund as trustee for creditors, and to be the only person who could legally demand and collect the money.

And in Howarth v. Angle, 162 N. Y. 179,

par value of their stock, for the debts of the company. The decree also found a list of the creditors who had intervened, and the amounts due to each of them from the loan company.

In addition to giving judgments against the resident stockholders of the loan company in favor of its ascertained creditors, the court also decreed as follows:

"Tenth. That for the purpose of enforcing and collecting said judgments and all thereof and any and all liability thereon or in anywise incident thereto, and any and all liability upon the part of nonresident stockholders of said Northwestern Guaranty Loan Company, against whom no personal judgment for the ascertained liability is herein rendered, and disbursing the amounts so collected as hereinafter provided, W. E. Hale, Esq., has been by the order of this court appointed receiver, and has given bond in the sum of $25,000 and qualified as such receiver. That by the terms of said order of appointment said receiver was and hereby is authorized, empowered, and directed to take any and all appropriate or necessary steps or proceedings for the purpose of collecting the judgments herein rendered, and was and hereby is authorized, empowered, and directed to take any and all necessary or appropriate steps or proceedings against the nonresident stockholders of said defendant Northwestern Guaranty Loan Company against whom no personal judgment herein has been ordered, for the enforcement and realization upon their aforesaid stockholders' liability, and to that 47 L. R. A. 725, 56 N. E. 489, supra, the court was careful to point out that the receiver, by the law of the state where he was appointed, had title to the right of action against stockholders to enforce their liability.

So, in Sheafe v. Larimer, 79 Fed. 921, supra, a decision of the state of the receiver's appointment was referred to as showing that the statutory liability imposed by the statutes of that state on corporate stockholders could be -enforced by the receiver.

Likewise, in Cuykendall v. Miles, 10 Fed. 342, supra, It appeared that the receiver could maintain such an action in the state of his appointment.

In Burr v. Smith, 113 Fed. 858, supra, It appeared that the statutes of the state of the receiver's appointment provided that stockholders' liabilities should be enforced by a receiver in his own name, both within and without the state.

And in Wigton v. Kenney, 51 App. Div. 215. 64 N. Y. Supp. 924, supra, which sustained an order overruling a demurrer to the receiver's complaint, such complaint contained an allegation that the receiver was authorized to maintain and bring the action.

And because a Kansas receiver of the assets of a corporation was without power to maintain a suit to enforce the statutory liability of a stockholder in that state, by reason of his failure to take the steps which the statutes of that state make a prerequisite to such enforcement, the court in Evans v. Nellis, 187 U. S. 271, ante, 173, 23 Sup. Ct. Rep. 74, held that he could maintain no such action in a Federal court sitting in another state. "It is manifest," says Mr. Justice White, in deliver ing the opinion of the court, "that the r

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end said receiver be and hereby is authorized, empowered, and directed to institute and prosecute all such actions or proceedings in foreign jurisdictions as may be necessary or appropriate to this end."

The decree also provided that jurisdiction of the cause should be retained until the adjustment of the several rights and liabilities of the respective parties.

Thereupon the receiver thus appointed commenced this suit in equity to recover from the resident stockholders in Pennsylvania the full amount of the par value of the shares of stock held by them. Rogers, the assignee of the judgment creditor in the Minnesota action, was joined as complainant in this *suit with the receiver, and a de-[59] murrer having been interposed on the ground, among others, of this joinder, the circuit court, upon the trial and upon the application of complainant, granted leave to dismiss the assignee as a party, and the case proceeded thereafter in the name of the receiver alone.

Mr. M. H. Boutelle argued the cause, and, with Messrs. William E. Hale, Charles C. Lister, and A. L. Pincoffs, filed a brief for petitioner:

The statutory stock-liability imposed by the laws of corporate domicil is contractual in character, and enforceable in any court where jurisdiction of the parties may be obtained.

Hawthorne v. Calef, 2 Wall. 10, 17 L. ed. 776; Carrol v. Green, 92 U. S. 509, 23 L. ed. 738; Flash v. Conn, 109 U. S. 371, 27 L. ceiver had no authority to bring this suit, even in the courts of the state of Kansas, and he clearly, therefore, had no power to prosecute such action in the courts of another jurisdiction."

The decision in HALE v. ALLINSON likewise rests upon the facts that the appointment of the receiver was not authorized by any statute, but was merely in the exercise of the general powers of a court of equity, and that he had no title to the fund, and could not maintain such an action in the courts of the state where he was appointed.. And the diverse conclusions reached by the lower Federal courts as to the right of such a receiver to maintain an action to enforce a stockholder's liability outside the state of his appointment seem to have proceeded from different views with respect to the nature of such appointment.

Thus, in Hale v. Hardon, 37 C. C. A. 240, 95 Fed. 747, it was held, Reversing 89 Fed. 283, that the appointment of a receiver by a Minnesota court in a proceeding by creditors to wind up the affairs of a domestic corporation and enforce the liability of stockholders for its debts, being contemplated by the Minnesota statutes and in the general course of equity or legal procedure in that state, such a receiver might, on principles of comity, be permitted to maintain an action at law to enforce such liability in the courts of another jurisdiction. This ruling was followed in Hale v. Tyler, 104 Fed. 757.

But in Hilliker v. Hale, 54 C. C. A. 252, 117 Fed. 220, it was held, Reversing 109 Fed. 273, that such a receiver, not being appointed, under the authority of any statute, but simply under the general equity powers of the court, with instructions to proceed against nonresi

1902.

ed. 966, 3 Sup. Ct. Rep. 263; Whitman v. National Bank, 176 U. S. 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477; Hancock Nat. Bank v. Farnum, 176 U. S. 640, 44 L. ed. 619. 20 Sup. Ct. Rep. 506; Pinney v. Nelson, 183 U. S. 144, 46 L. ed. 125, 22 Sup. Ct. Rep. 52. Where such liability contemplates the creation of a fund, the purposes in this regard may be best accomplished through the medium of a receiver.

2 Morawetz, Priv. Corp. § 902.

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the now thoroughly established doctrines of
comity sustained by nearly every state in
the Union, as to deprive the conclusions
there announced of the force otherwise at-
tributable thereto.

The modern rule sustained by the great weight of authority, and applicable, in this regard, indiscriminately to statutory as well as receivers of courts of equity, is that a receiver will be permitted to sue and defend, as foreign receiver, in all courts of other In some jurisdictions the administration states than that in which he is appointed, of this quasi-asset is conferred upon the gen- on the principles of comity, except where the eral receiver of the corporation, but, by the rights of citizens of the state of the forum clear weight of authority, unless power in are prejudiced thereby, or where it would be this respect be conferred by special enact-in contravention of the policy of such state. ment, the general receiver has no interest in the right in question.

Ochiltree v. Iowa Railroad Contracting Co. 21 Wall. 249, 22 L. ed. 546; 2 Cook, Stock & Stockholders, § 218; 2 Morawetz, Priv. Corp. § 849; Gluck & B. Receivers, 2d ed. 266; Hancock Nat. Bank v. Ellis, 172 Mass. 47, 42 L. R. A. 396, 51 N. E. 207.

Smith, Receiverships, 167 (f). See also 2 Beach Modern Eq. Pr. § 747; Beach, Receivers, § 682; High, Receivers, 2d ed. § 241; Gluck & B. Receivers 2d ed. 34 et seq., 222; 20 Am. & Eng. Enc. Law, p. 244.

The general rule of comity prevails in Pennsylvania.

Bagby v. Atlantic, M. & O. R. Co. 86 Pa. 291. The demand asserted is not opposed to any re-policy of the local law of that commonwealth. re

The laws of Minnesota provide in such cases for the appointment of a special ceiver as representative of creditors in spect to this special liability.

Hale v. Hardon, 37 C. C. A. 240, 95 Fed. 747; Childs v. Cleaves, 95 Me. 498, 50 Atl. 714; Hanson v. Davison, 73 Minn. 454, 76 N. W. 254.

The basis of decision in Booth v. Clark, 17 How. 322, 15 L. ed. 164, predicated, as was that case, of a denial of all comity between the states, has been so far removed by dent stockholders and hold the moneys col- | lected, subject to the further orders of the court, could not maintain an action at law on such liability in a foreign jurisdiction, as he was vested with no title, but was merely acting as the agent of the court.

In Hale v. Coffin, 114 Fed. 567, the court was necessary to the conheld that since clusions of the circult court of appeals in Hale v. Hardon, 37 C. C. A. 240, 95 Fed. 747, supra, that under the laws of Minnesota there was something which vested in the receiver, sufficient to enable him to maintain a suit at common law, such a receiver might maintain a suit in equity to enforce the stockholder's liability, in a Federal court sitting in a state where the common-law rule prevails, which requires plain tiff to have title, although no action at law could be sustained.

And it has been held that a receiver appointed in a suit to enforce the statutory llability of stockholders in a corporation for the benefit of all creditors may, although appointed without specific legislative authority, but in accordance with the usages of equity, maintain name in another jurisdica suit in his own tion. Kirtley v. Holmes, 52 L. R. A. 738, 46 C. C. A. 102, 107 Fed. 1.

And the right of the receiver of a foreign corporation to collect an unpaid subscription to its stock was sustained in Dayton v. Borst, 31 N. Y. 435, without showing that any statute of the state in which he was appointed authorized such proceeding.

A suit by a receiver of an Iowa corporation to enforce the individual liability of stockholders to the creditors of the corporation under Iowa Acts 18th Gen. Assem.. chap. 208. was dismissed in Steinke v. Loofbourow, 17

Aultman's Appeal, 98 Pa. 505; Cushing v. Perot, 175 Pa. 66, 34 L. R. A. 737, 34 Atl. 447.

Neither local creditors nor any other creditors may avail themselves of this liability, or assert any rights whatsoever therein, otherwise than on full compliance with the several conditions of the law of the domicil.

Terry v. Little, 101 U. S. 216, 25 L. ed. 864. Utah, 252, 54 Pac. 120, on the ground that the the suit. No question of comity appears to receiver was not the proper person to bring court's attention does not seem to have been have been considered in this case, and the called to State ex rel. Stone v. Union Stock Yards State Bank, 103 Iowa, 549, 70 N. W. 752, 72 N. W. 1076, in which the receiver was held to be the proper party to bring suit under this statute.

In Wigton v. Bosler, 102 Fed. 70, It was an action in the also held that a receiver appointed by an Iowa court could not maintain The court courts of another jurisdiction to enforce the statutory liability of stockholders. refers to the fact that the liability under the Iowa statute, as stated in the declaration, is to the creditors of the corporation, but does not seem to regard this as essential to justify its refusal to entertain the suit, and it assumes that the effect of the Iowa statutes is

in fact to make the liability which they create an asset of the corporation.

Assessments on members of a foreign benefit society which had become insolvent were collected in Baldwin v. Hosmer, 101 Mich. 119, 25 L. R. A. 739, 59 N. W. 432, by an ancillary recelver.

The statute of limitations of the state in

which a corporation was domiciled governs an
to enforce the liability of a stock-
company
action in another state by a receiver of the
holder under the statute of the former state.
Andrews v. Bacon, 38 Fed. 777.

On the general question of the right to en-
stockholder's liability outside of the
force a
state of incorporation, see the exhaustive note
383
appended to the case of Cushing v. Perot (Pa.)
34 L. R. A. 737.

Shields v. Thomas, 18 How. 253, 15 L. ed. 368.

Local creditors have no other or different | though the original decree was for the payrights than any others, and all are referable ment of money. in this regard to the laws of the domicil prescribing equality for creditors in common. Childs v. Cleaves, 95 Me. 498, 50 Atl. 714. The power of appointment may be referred both to the express provisions of the Minnesota statutes and the general equity powers exercised by courts of chancery in analogous

cases.

.

Hale v. Hardon, 37 C. C. A. 240, 95 Fed. 747; Childs v. Cleaves, 95 Me. 498, 50 Atl. 714; Zieverink v. Kemper, 50 Ohio St. 208, 34 N. E. 250.

Such an appointment is obviously calculated to effectuate the general objects and purposes, in that, without it, no practical means have ever yet been suggested for insuring harmony in the administration and efficiency in the proceedings contemplated.

Childs v. Cleaves, 95 Me. 498, 50 Atl. 714. The creditors to the original proceeding, being parties to that proceeding, are bound by the decree vesting their rights in the premises in a receiver.

High, Receivers, § 37.

A payment to that receiver unquestionably relieves the stockholder from any further liability.

Castleman v. Templeman, 87 Md. 546, 41 L. R. A. 367, 40 Atl. 275.

The receiver may not inaptly be termed one of the statutory agencies provided by the laws of the domicil in case of the insolvency of the corporation. It is immaterial in this regard whether this agency be committed to a specially designated official, or generally to a person to be designated by an appropriate court for the purposes contemplated.

Relfe v. Rundle, 103 U. S. 222, sub nom. Life Asso. of America . Rundle, 26 L. ed. 337; Parsons v. Charter Oak L. Ins. Co. 31 Fed. 305.

The result, both as respects the character of the agency itself and the implied assent thereto by the stockholders, must, of necessity, be the same.

Hale v. Дardon, 37 C. C. A. 240, 95 Fed.

747. See also Howarth v. Angle, 162 N. Y. 179, 47 L. R. A. 725, 56 N. E. 489; Tompkins v. Blakey, 70 N. H. 584, 49 Atl. 111; Howarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888; Childs v. Cleaves, 95 Me. 498, 50 Atl. 714.

The receiver, upon the happening of the specified contingency,-the corporation's insolvency, became a substituted promisee, and asserted the obligation as a matter of right and as running to himself directly.

Fish v. Smith, 73 Conn. 377, 47 Atl. 711. No question has been or can be made of the chancery jurisdiction in cases where the object of the suit is the enforcement or carrying into effect of the decree of the court itself, or other courts of equity.

Story, Eq. Pl. §§ 429-431; Mitford, Eq. Pl. 95; Cooper, Eq. Pl. 98, 99; 2 Beach Modern, Eq. Pr. § 903; Shainwald v. Lewis, 69 Fed. 487.

Jurisdiction exists on this ground al

The decree of the Minnesota court, in so far as it adjudicated by its decree the amount of the corporate debts, the assets available for the liquidation thereof, and the deficiency to be contributed by the stockholders, was a decree against appellees, binding and conclusive upon them by representation to the extent indicated, until impeached for fraud.

Hawkins v. Glenn, 131 U. S. 329, 33 L. ed. 191, 9 Sup. Ct. Rep. 739.

Jurisdiction existed on the ground of avoiding a multiplicity of suits.

Garrison v. Memphis Ins. Co. 19 How. 312, 15 L. ed. 656; Oelrichs v. Spain, 15 Wall. 211, sub nom. Oelrichs v. Williams, 21 L. ed. 43; Kilbourn v. Sunderland, 130 U. S. 505, 32 L. ed. 1005, 9 Sup. Ct. Rep. 594; Wylie v. Coxe, 15 How. 415, 14 L. ed. 753; May v. Le Claire, 11 Wall. 217, 20 L. ed. 50; 1 Pom. Eq. Jur. §§ 255-259-260; See also generally 1 Dan. Ch. Pr. ed. 1845, 445, 446; York v. Pilkington, 1 Atk. 282; London v. Perkins, 3 Bro. P. C. 602; Tenham v. Herbert, 2 Atk. 483; Bailey v. Tillinghast, 40 C. C. A. 93, 99 Fed. 801; Hayden v. Thompson, 17 C. C. A. 592, 36 U. S. App. 361, 71 Fed. 60; Cockrill v. Cooper, 29 C. C. A. 529, 57 U. S. App. 576, 86 Fed. 7.

The circumstances of each case must determine the application of the rule.

Rich v. Braxton, 158 U. S. 405, 39 L. ed. 1032, 15 Sup. Ct. Rep. 1006; Payne v. Kook, 7 Wall. 430, 1 L. ed. 262; Watson v. Sutherland, 5 Wall. 74, 18 L. ed. 580.

The assumption that the only defense open is that of payment or nonstockholding is anticipation. On the demurrers there are no defenses in either regard. The facts stand admitted. The case is thus bereft of a single substantial element save that common to all and involved in the common grounds asserted by the demurrers. missioners of Sewers v. Glasse, 41 L. J. Ch. Powell v. Powis, 1 Young & J. 159; Com

N. S. 409.

The ground of avoiding multiplicity of suits, in and of itself, and without regard either to the character of the right asserted or the relief demanded, constitutes a distinct element of jurisdiction.

1 Pom. Eq. Jur. § 243.

The prevention of multiplicity of suits as an independent jurisdictional ground has been frequently recognized in the Federal precedents.

Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Louisville, N. A. & C. R. Co. v. Ohio Valley Improv. & Contract Co. 57 Fed. 42; 1 Pom. Eq. Jur. § 243;. McConnaughy v. Pennoyer, 43 Fed. 339; Hyman v. Wheeler, 33 Fed. 629; De Forest v. Thompson, 40 Fed. 375.

If the receiver cannot enforce the liability, it follows that there is no one who can maintain the requisite action for its enforcement.

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