Page:Federal Reporter, 1st Series, Volume 8.djvu/509

 HOBABT V. JOHNSON. 495^ �It is admitted that this New Jersey statute took effect before the defendant became the owner of the shareS' in question, although the date when she became sueh owner is not set forth in the answer. It is contended for the defendant that the liability created by the act of congress is in the nature of a liability of suretyship, and that this suit is one to enforce a promise or undertaking to pay the debt of another, and is, therefore, within the proviso of the New Jersey statute, and a recovery cannot be had against the defendant on Buch promise. This view does not appear to be tenable. ihe contract made by the shareholder is entered into by the act of be- coming a shareholder. Every creditor of the bank, becoming such, becomes, eo instante, a creditor of the shareholder in respect to the liability in question. The shareholder becomes thereby a principal debtor. The debt of the bank is his debt at the instant of its crea- tion, and the debt of the bank is referred to unly as a measure of the debt of the shareholder. It is true that the payment of the debt of the bank by the bank extinguishes the debt of the shareholder ; but the idea of guaranty or suretyship, or of a promise to pay the debt or answer for the liability of anotKier, is altogether destroyeoi by the fact that the debt of the bank is incurred for the benefit of the share- holders exclus! vely, and is thus the debt of the shareholder as a principal. The shareholder bas no remedy over against the bank or against his co-stockholders. This inherent idea of guaranty or sure- tyship is wanting. As the case is not within the proviso of the New Jersey statute, that statute makes the defendant liable on her con- tract. �Moreover, it must be assumed, either that the defendant had a separate estate, or contracted with a view to create, by owning the stock, a separate estate. . In either view the contract w:as for 'her benefit, as the holder of a separate estate. Under such circumstances, by way of estoppel, she will not be allowed to claim and enjoy, as regards the bank and creditors, and her oo-shareholders, the benefit of her position as a shareholder and then i^epudiate the statutory obligation attached to it. Mrs. Mathewman's Case, L. H. 3 Eq. Cases, 781; In re The lieciprocity Bank, 22 N. Y. 9; Nat. Bank v. Case, 99 U. S. 628. �There must be judgment for the plaintiff on the demurrer. ��� �