Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/725

 CHAP. XIII.] SHAREHOLDERS AND CREDITORS. [§ 708. begun one. 1 Unpaid subscriptions, moreover, being part of the assets of the corporation, pass by a decree in bankruptcy to its assignee ; after which he and not the creditors should sue for them. And the mere fact that the assignee has delayed for two years in bringing suit does not enable creditors to sue. 2 § 708. Creditors may also restrain shareholders from with- drawing the corporate funds to the injury of the former, and can recover such funds from shareholders who have im- properly received them. 3 For instance, the share- Ri „ htsof holders of an insolvent bank are not entitled to re- creditors ceive or divide among themselves any of its assets snare- until its debts and liabilities are fully discharged. 4 pr0 periy And an action may be maintained by the receiver ^g^p^." of an insolvent corporation against its shareholders rate funds. to recover sums received by them as dividends when the cor- poration was insolvent. 5 But where dividends have been holders for the balance of their un- paid subscriptions in order to pay creditors, until the whole amount of the corporate indebtedness is deter- mined and the liability of each share- holder fixed. Chandler v. Keith, 42 Iowa, 99; Mann u. Pentz, 3 New York, 415. But see Dayton v. Borst, 31 N. Y. 435. iRankine v. Elliot, 16 N. Y. 377; Brown v. Brink, Rec'r, 57 Neb. 600. See § 690, note. In a creditor's action against an insolvent corporation for the ap- pointment of a receiver, a court has no jurisdiction to grant an inter- locutory order makiug an assess- ment on the unpaid stock, as against shareholders not parties to the bill, the bill containing no allegation that they are too numerous to be made parties. Lamar Ins. Co. v. Hildreth, 55 Iowa, 248. 2 Lane v. Nickerson, 99 111. 284. But a bill brought by creditors, alleging collusion between the cor- poration, its assignee, and its debt- 45 ors, may be sustained. Stocks v. Van Leonard, 8 Ga. 511. s Bartlett v. Drew, 57 N. Y. 587; Singer v. Hutchinson, 183 111. 606. See § 656. 4 Wood v. Dummer, 3 Mason, 308; Hollister v. Hollister Bank, 2 Keyes (N. Y.), 245. 6 Osgood v. Lay tin, 3 Keyes (N. Y.), 521; Lexington Life, etc., Ins. Co. v. Page, 17 B. Mon. (Ky.)412; Grant, Assignee, v. Ross, 100 Ky. 44; Grant v. Southern Contract Co., 104 Ky. 781; Davenport, Rec'r v. Lines, 72 Conn. 118. Especially if the divi- dends were paid out of capital. William v. Boice, 38 N. J. Eq. 364. Although a statute makes the direct- ors personally liable for all divi- dends paid out of capital. lb.; §§ 566, 567. It has been held that a receiver of a national bank, upon the corporation's becoming insolvent, cannot recover dividends paid out of capital if the corporation was solvent at the time, and the stock- holder received them in good faith. 705