Page:Federal Reporter, 1st Series, Volume 10.djvu/611

 HIBBRNU INS. CO. V. ST. LOtlIS & NEW ORLEANS TEANSP. 00. 599 �It must be admitted that someof the views expressed in that opin- ion go very far towards sustainiiig the plaintifi's proposition, yet cannot be held to go expressly to the extent here clainaed, as cover- ing claims at large not dependent on the same testimony or transac- tions. The plaintiff's demands by subrogation are for two distinct causes of action against the Babbage Transportation Company. It is charged that Lowery was president and principal stockholder of said Company. As such officer and stockholder no cause of action existed against him personally. Why, then, should he be made a party defendant to this suit ? It is said that by force of the Missouri stat- ute he could in given contingencies be compelled to respond, to, a cer- tain estent at least, to the demands against the corporation. But is this a proceeding to enforce a supposed liability against him as a stockholder ? and, if so, why is not the same done pursuant to the Mis- souri statute, 80 that he may be compelled to respond individually to plaintiff's demand ? But the bill is based on another theory to which he is not a necessary or proper party; otherwise adecree ■would.have to be rendered against him individually. He is not charged with insolvency; nor are any of the facts averred whereby he would become personally liable for the debts of the Babbage Transportation Com- pany. If he were, the proceedings at law against him would be full and adequate under the Missouri statute. The extended theory of the bill is that there are outstanding demands against the Babbage Transportation Company not reduced to judgment nor supported by a lien; that in that condition of affairs that cofflpany transferred all its property without consideration, and therefore fraudulently, as against existing creditors, to the other corporation, with full knowledge on the part of the latter that there were such outstanding demands ; that the only means of enforcing those demands is to compel the lat- ter Company to hold the property thus received by it subject to such demands when established. The peculiarities of the law concerning the formation and dissolution of corporations under the Missouri stat- utes provoked a sharp comment from Justice Miller a few yearg ago, 80 far as they were designed to affeot proceedings in admiralty. His remarks might have been properly extended to other proceedings. The case bef ore the court is illustrative. A corporation having incurred liabilities, is. dissolved, practically, by transferring all its property to another corporation, formed possibly for the very purpose of leav- iog the creditors of the former (creditors at large) without any ade- quate means of realizing their just dues. There is too much of this, ��� �