Page:Federal Reporter, 1st Series, Volume 5.djvu/420

 408 FEDERAL REPORTER. �tion extravagantiy in excess of ita real value. If they had really contracted any obligation to take and pay for the stock, they could not acquit themselves of it by such a deviee. Sanger v. Upton, 91 U. S. 60; 7'roy T. e H. Co. \. Mc- Chesney, Hl Wend. 296; Lake Ont. li. Co. v. Mason, 16 N. Y. 459; Wilson v. United Ins. Co. 14 John. 228; Goshen d M. Turnpk. Co. v. Hurtin, 9 John. 217. �: To call the stock fuUy paid up is to admit the obligation to take and pay for it, and to suppose that obligation to bave been fulfiUed in a mode the law will not permit. In my view no such obligation ex cpntractu was at any time created. If the liability to pay the nominal par value of the stock for the benefit of creditors exists, it must arise from the positive provisions of the statutes, and not from the contracts of the parties. This question I will now proceed to examine. The statutory provision by which this liability is supposed to be created is found in the 349th section of the Code of Civil Procedure. The previens sections of the article of the Code contain- detailed and minute provisions regulating the levy- ing of assessments ; then to the sale of delinquent stock. �Section 349 provides that "on the day specified for declar- ing the stock delinquent, or at any time subsequent thereto and before the sale of the delinquent stock, the board of di- rectors may eleet to waive further proceedings under this chapter, for the collection of delinquent assessments, or any yart or portion thereof, and may elect to proceed by action to recover the amount of the assessment and the costs and expenscs already incurred, or any part or portion thereof." �It is this last clause which is supposed to create a legal liability on the part of of the stockholders to pay assessments up to the par value of the stock, when necessary to satisfy the indebtedness of the corporation. �But to this view there are grave, and, in my judgment, in- superable objections. �1. The statute does not, in tenns, declare or create the lia- bility. It merely authorizes the directors "to elect to pro- ceed by action to recover the amount of the assessments." Its language would be satisfied by restricting its operation to ����