Page:Federal Reporter, 1st Series, Volume 10.djvu/357

 CUYKENDALL V. MILES. 343 �Bon, Stockholders, §§ 80-86; Corning v. McCullough, 1 N. Y. 47; Carvcr v. Braintrec Manitfg Co. 2 Story, 432. See Crea&e v. Bahcock, 10 Metc. 557. �In the cases cited by the defendant {Erichson v. Nesmith, 16 Gray, 221; 4 Allen, 2.S3; 46 N. H. 371) the courts of Massachusetts re- fused to sustain an action at law or a bill in equity against one stock- holder of a New Hampsbire corporation, and the courts of New Hampshire approved the decision ; but the ground was, not that the statute of New Hampshire was penal, but that it provided a specifie remedy in behalf of all ereditors against all shareholders, and that this remedy could not be conveniently pursued excepting in the do- mestic forum. According to the reasoning of those cases, this action may be maintained, for the laws of New York, as we have seen, permit a similar action to be brought. �No one can contend that the assessment of national bank shares may not be enforced wherever shareholders are found. Casey v. Galli, 94 U. S. 672. The technical reason is that the act of congress operates throughout the country, while the laws of New York are local. But what reason is there, upon principle, why the courts should refuse to enforce the same remedy against the same person for the same liability when the charter happens to be a state charter which has not been turned into a national charter, as it may be at any time by a resolution of the shareholders ? �The decisions which bear directly upon the point in controversy are few. I have found none that deny the exercise of comity on the ground that such a statute is penal, or, indeed, upon any other. On the contrary, such actions were sustained in the following cases : Bond V. Applcton, 8 Mass. 473; Paine v. Stewart, 33 Conn. 516; Casey v. Galli, 94 U. S. 672 ; Sackett's Harbor Bank v. Blake, 3 Rich. Eq. 225; Ex parte Van Riper, 20 Wend. 614; Turnbull v. Paysan, 95 U. S. 418. In the last case the defendant had not paid up bis orig- inal subscription in fnll, but the assessment was under a statute which made him liable beyond his capital stock, and does not appear to have been sustained specially on the first ground. �The statute relied on by the plaintiff provides that all stockholders shall be liable to an amount equal to that of their stock, until the whole of the capital stock fixed and limited by the company shall have been paid in and a certificate thereof shall have been filed. In 80 far as the law makes shareholders responsible for a neglect of officers to file a certificate, it resembles the case in 26 Mo., above cited ; but it differs in the very important circumstances that the lia- ��� �