Page:Federal Reporter, 1st Series, Volume 7.djvu/544

 682 FBDEBAIi BEPOBTBB. �answer the premises, but not on oath; and may be or- dered to apply to the payment of said sums and interest, such property and effects belonging to said corporation, and the proceeds of the same, as may be in their possession or control; and, if these are insufficient, may be ordered to pay said sums and interest out of their individual property and effects. The demurrer to this bill must be sustained. �1. There are no allegations or charges by which it is pos- sible to ascertain whether the shareholders of the Company, or either of them, are accountable for the assets, or any of them. It appears that in 1876 all the remaining assets were made over to one stockholder, but whether he paid money down for them, or took them for a debt to him8elf,or for debts of the company which be had paid, or under what other cireumstances, I cannot tell. It is settled in this country that the capital is a sort of trust fund for creditors ; and if it is taken back by its owners and divided among them before the debts are paid, a bill will lie to subject the assets so divided in the hands of the shareholders to an equitable lien for the debts ; and if the creditbr is one against whom the statute of limitations does not avail, no doubt the bill will lie even at a remote time. Whether such a division bas been made of these assets, the bill does not inform me. �2. There is nothing in the bill to show why Aristides Talbot, the receiver, is made a party. If the assets were bought of him and paid for, he might be called to account for the purchase money in the state court; and, under some pos- sible cireumstances, might be sued in this court. Whether the facts would bring this case within that rule in either court the bill does not disclose. It is nowhere charged that Talbot was ever notified of the existence of this debt. If not, he is under no personal liability in respect to it. �3. No reason is given for subjecting the stockholders personally to the payment of this debt if the assets fail. In a manufacturing corporation, organized under the laws of Massachusetts, the shareholders are Uable for debts if the capital bas not been fully paid up, or if certain annual notices have not been given ; but nothing of the sort is alleged bere. ��� �