Matter of The Hollister Bank. proportion to the amount of their stock, for the debts due by the association to such creditors. It is, I think, sufficiently plain that such an obligation or agreement would impose upon each of the parties to it a responsibility for a proportionate share of the debts. That this rate or proportion has reference to the amount of stock held by each, as compared with the whole stock and the debts, appear from the 16th section of the act. This section directs that the referee to be appointed by the Supreme Court shall apportion the debts of the corporation contracted after January 1st, 1850, and remaining unpaid, among the stockholders, "ratably in proportion to their stock, according to the principles in this act declared." By the 18th section, the referee is directed to ascertain the persons who are chargeable as stockholders, and the amount chargeable to each, according to the rules and principles declared in this act. This apportionment of liability by the referee, upon the principle of proportion to the stock, when confirmed by the court, becomes the judgment, declaring and enforcing the liability created by the act. There is but one such apportionment and consequent judgment against each stockholder provided for, and but one contemplated by the act. Besides, the clause which has just been adverted to, the responsibility created by this act, is qualified by the provision, which is also contained in the first section, that such responsibility is to be enforced as thereinafter provided and not otherwise, that is only in and by the special proceeding given and regulated by the act. Suits by individual creditors against a single stockholder, such as were sustained under the manufacturing law of 1811, in the case of the Bank of Poughkeepsie v. Ibbotson, are intended to be cut off by this clause; and the only mode of establishing and enforcing the responsibility of stockholders in these associations is by this special proceeding to which they must all be parties, and in which an account of each with the corporation, for payments made or debts assumed, as well as an account of the ratable portion of stock held by each, is to be taken, and judgment given accordingly once for all. As I have already Metropolitan Bank v. Van Dyck. said, this proceeding is complete as well as final. The act contains no authority for a second assessment or a second application, and I discover no provisions in the law from which it could be inferred that any such subsequent assessment to make good deficiencies in the collection of the first, was con templated by the framers of the act. The act provides how a new apportionment is to be made, in case the first apportionment is reversed or so modified as to make it necessary (§ 29), and this express provision is entitled to some weight, as an exclusion of authority to make a second apportionment, while the first remains in force, neither reversed nor modified. Upon the whole, I am of opinion that the liability imposed by this statute upon the stockholders of banking associations, is a several liability for a ratable and equal share of the debts, in proportion to the whole debts and the whole capital stock, and not a liability to each creditor until he is paid, limited only by the amount of stock held by the stockholder, and that the statute gives no authority or jurisdiction to make more than one judgment, the first apportionment and judgment remaining unreversed. I am, therefore, of opinion that the order appealed from should be reversed with costs. All the judges concurring. Order reversed. THE METROPOLITAN BANK and THE SHOE AND LEATHER BANK v. VAN DYCK, Superintendent of the Bank Depart ment: MEYER v. ROOSEVELT. The act of Congress passed February 25, 1862 (ch. 33), making certain treasury notes of the United States a legal tender in payment of debts between private persons, is constitutional and valid. The power to borrow money on the credit of the United States carries with it, it seems, the power to attach the quality of a legal tender to the notes issued, when, in the judgment of Congress, it is necessary to make them effectual for the purpose of borrowing. Metropolitan Bank v. Van Dyck. The validity of this provision, as an exercise by Congress of the power to regulate commerce, discussed and maintained by MARVIN, J. The provision of the Constitution of this State (art. 8, § 6), that the legislature shall require the redemption in specie of all bills and notes put in circulation as money, is not self-executing, so that the refusal of a bank to redeem its bills in specie authorizes the Bank Superintendent to sell the securities deposited with him. Until the legislature shall require the redemption of bank bills in specie, an offer to pay in treasury notes made a legal tender by act of Congress is sufficient under the general banking law (ch. 260 of 1838, § 4), which only authorizes a sale of the securities upon default in paying such bills in "lawful money of the United States." THE respondents in the first above entitled cause are banking associations, organized under the general banking law of this State, and the several acts amendatory thereof, and are located and doing business in the city of New York. By the provisions of those acts, the said banks were required to deposit securities with the bank department for the redemption and payment of the bills or circulating notes issued by such banks respectively. Upon default of any such bank, upon lawful demand, to pay any such note or bill "in the lawful money of the United States," the holder of such note was authorized to cause the same to be protested, and the superintendent of the bank department, on receiving such protest, is directed to take the proceedings prescribed by said act, to compel payment thereof, out of the securities so deposited with him for that purpose, and if need be to sell the same. (Chap. 260 of 1838, § 4.) On the 26th of March, 1863, one D. Valentine, being the owner and holder of a bill or note issued by each of the respondents, of the denomination of ten dollars, presented the same at their several banks, and demanded payment thereof in the gold or silver coin of the United States, which was refused by the respondents, but each tendered to him, and offered to pay the said note or bill in a. note of the donomination of ten dollars, issued by the secretary of the treasury, upon the credit of the United States, under and by virtue of the act of the Congress of the United States, entitled "an act to authorize the issue of United States SMITH.-VOL. XIII. 51 Metropolitan Bank v. Van Dyck. notes, and for the redemption or funding thereof, and for funding the floating debt of the United States," approved February 25, 1862. Thereupon Valentine caused the notes to be protested, and the protest thereof to be filed with the appellant, and the appellant gave notice, requiring said respondents to pay their respective notes, within fifteen days, in gold or silver coin, or in default the appellant would proceed to sell the securities so deposited with him, and also proceed to make redemption thereof, pursuant to the requirements of said acts. Upon an agreed case, pursuant to section 372 of the Code of Procedure, the following questions were submitted to the Supreme Court at general term, for decision: 1. Whether the aforesaid act of Congress, approved February 25, 1862, is constitutional and valid, and also, whether the refusal of the plaintiffs to redeem their said notes so issued by them, upon demand, in the gold or silver coin of the United States, and their offer to redeem their said notes in the notes of equal denomination issued as aforesaid, by authority of Congress, was a failure or refusal to redeem their notes in the lawful money of the United States. 2. If the court be of the opinion that the said act is consti tutional, and that the plaintiffs offered to redeem their notes in the lawful money of the United States, then judgment is to be entered restraining the defendant, as superintendent, from taking any further steps from redeeming any of the notes of the plaintiffs, in cases where the plaintiffs have offered to redeem in the legal tender notes of the United States, and that he be restrained from taking any steps towards the sale of the stocks or trust funds in his hands belonging to the plaintiffs. But if, on the contrary, the court be of the opinion that the said act of Congress is unconstitutional, and that a refusal to redeem in gold or silver coin of the United States, is a refusal to redeem in the lawful money of the United States, then a judgment was to be entered dismissing the complaint of the plaintiffs. In this action, the Supreme Court, in the third judicial dis trict, held the said act of Congress to be constitutional and Metropolitan Bank v. Van Dyck. valid, and that a tender made in the treasury notes issued by virtue and in pursuance of said act, was a good and legal tender for all debts mentioned therein, and that the tender made by the plaintiffs to redeem their circulating notes in the said. above described treasury notes, was a tender and offer to redeem their said notes in the lawful money of the United.. States. The court thereupon gave to the plaintiffs the relief asked for in their complaint. In the second above entitled cause, the facts agreed upon, in the case submitted to the Supreme Court under the same section of the Code, were: That the plaintiff, Lewis H. Meyer, had become the owner in fee, in May, 1861, of certain premises, subject to a mortgage to the defendant to secure the sum of $8,000. On the 23d of August, 1854, one Samuel Bowne was the owner in fee of said premises, and procured a loan from the defendant of the sum of $8,000, to secure the payment of which, on the 23d of August, 1857, he made and executed to the defendant his bond in the penal sum of $16,000, "lawful money of the United States of America," conditioned for the payment of the just and full sum of $8,000, on said 23d of August, 1857, with interest thereor at the rate of seven per cent, payable semi-annually. To secure the payment of his said bond, the said Bowne and his wife made and exe cuted a mortgage on said premises, bearing even date with said bond, which recited that said Bowne was justly indebted to the defendant "in the sum of eight thousand dollars lawful money of the United States of America." The mortgaged premises were conveyed to the plaintiff, and he assumed the payment of said mortgage. On the 11th of June, 1862, the plaintiff desiring to pay off and cancel said mortgage, tendered to the defendant the sum of $8,170, being the amount due for principal and interest on said mortgage up to the said 11th of June, 1862, in notes of the United States, issued under and by virtue of the act of Congress, approved February 25, 1862. The defendant refused to receive the same as a legal tender, and claimed that the repayment of said money should be made in gold coin of the United |