an insolvent bank to enforce the personal liability of a stockholder for the payment of his claim did not give him a prior right or lien on the fund, when collected, to the exclusion of all other creditors of the bank; and the fact that such creditor was prevented from obtaining final judgment in his suit by injunction on bill filed by other creditors made no difference; and in St te Savings Ass'n v. Kellogg, 63 Mo. 540, it was also held that the institution of a suit against a stockholder for a corporate debt did not operate as a lien upon his liability, so as to hold him therefor against a senior judgment and execution obtained in another action commenced later; and see also Marks v. Muihall, 13 Mo. App. 590; Bittner v. Lee, 25 Id. 559. But “when the proceeding to enforce the statutory liability is in equity, there can be, upon plain principles, no priority among creditors": Cook on Stock and Stockholders, sec. 228.

ACTIONS BY STOCKHOLDERS AGAINST OTHER STOCKHOLDERS-CONTRIBUTION. — It has already been observed that stockholders made individually liable for corporate debts are considered partners to such an extent that one stockholder who is also a creditor of the corporation cannot maintain an action at law against other stockholders: Bailey v. Bancker, 3 Hill, 188; 38 Am. Dec. 625; Wait v. Ferguson, 14 Abb. Pr. 379; Beers v. Waterbury, 8 Bosw. 396, 413; Richardson v. Abendroth, 43 Barb. 162; Clark v. Myers, 11 Hun, 608; Thompson v. Meisser, 108 Ill. 359; Perkins v. Sanders, 56 Miss. 733; compare Woodruff etc. Iron Works v. Chittenden, 4 Bosw. 406; and, at all events, even if the rule be not placed on this ground, there are inherent difficulties in the suit at law: Seo Mathez v. Neidig, 2 N. Y. 100, 104; Garrison v. Howe, 17 Id. 458, 463. But where a stockholder is thus a creditor, or where he has been compelled to pay more than his share of a debt of the corporation to a creditor, he has a claim for contribution in equity against the other stockholders, who are liable for the debt: Beers v. Waterbury, Clark v. Myers, Perkins v. Sanders, supra; Judson v. Rossie Galena Co., 9 Paige, 598, 603; 38 Am. Dec. 569; Aspinwall v. Torrance, 1 Lans. 381; Garrison v. Howe, 17 N. Y. 458, 463; Aspinwall v. Sacchi, 57 Id. 331; Mathez v. Neidig, 72 Id. 100, 104; and see Polk v. Reynolds, 54 Ind. 449; Ward v. Polk, 70 Id. 309; Cook on Stock and Stockholders, sec. 229. He has, however, it is held, no right against another stockholder, under a statute making stockholders liable to creditors of the corporation to an extent equal to their unpaid subscriptions, while his own subscription remains unpaid: Weber v. Fickey, 47 Md. 196; Franklin v. Menown, 10 Mo. App. 570. So it has been held that a suit in equity for contribution, brought by a member of a corporation who had paid a debt of a corporation, against other members, cannot be maintained until the complainant had first applied and exhausted all property of the corporation: Gray v. Coffin, 9 Cush. 192. But in Smith v. Londoner, 5 Col. 365, it was decided that where a statute provided that the stockholders of a corporation "shall be severally individually liable to the creditors of the company in which they are stockholders, to the amount of unpaid stock held by them respectively, for all debts and contracts made by such company," a stockholder, who was also a creditor, but who had paid in full for his stock, and consequently was not individually liable for the debts of the company, might maintain an action at law against another stockholder, and recover to the amount of unpaid stock held by him. As to the right of a stockholder to enforce contribution under special statutes, sec Andrews v. Callender, 13 Pick. 484; Thayer v. Union Tool Co., 4 Gray, 75; Potter v. Stevens Machine Co., 127 Mass. 592; 34 Am. Rep. 428; Brinham v. Wellersburg Coal Co., 47 Pa. St. 43. If a stockholder himself cannot proceed in a special way, provided by stat

1

ute, against other stockholders, one to whom he has assigned his claim fər the sole purpose of enforcing such liability stands in no better position: Thayer v. Union Tool Co., 4 Gray, 75; Potter v. Stevens Machine Co., 127 Mass. 592; 34 Am. Rep. 428; and see also Richardson v. Abendroth, 43 Barb. 162.

The liability for contribution is co-extensive with the liability for the debt; and therefore all persons who are so liable are proper contributors: Sayles v. Bates, 15 R. I. 342.

STOCKHOLDER'S RIGHT TO SET OFF DEBT DUE HIM BY CORPORATION IN ACTION TO ENFORCE HIS STATUTORY LIABILITY. It has been heretofore shown that a stockholder cannot set off a debt due him by the corporation in a creditor's suit to compel the payment of his unpaid subscriptions. It would seem that a like rule should obtain in equitable actions against stockholders to enforce their statutory liability, where it is held that the statute creates a fund out of which the creditors are to be paid ratably: See Cook on Stock and Stockholders, sec. 227; 2 Morawetz on Corporations, sec. 898; also In re Empire City Bank, 18 N. Y. 119, 227; Buchanan v. Meisser, 105 Ill. 638; Thompson v. Meisser, 108 Id. 359; Thebus v. Smiley, 110 Id. 316; Burnap v. Haskins Steam Engine Co., 127 Mass. 586; Matthews v. Albert, 24 Md. 527; compare Briggs v. Penniman, 8 Cow. 387; 18 Am. Dec. 454; but the cases are far from satisfactory; and in New York, in actions to enforce the liability of stockholders under the act of 1848, by which they are made "severally individually " liable to the creditors of the company to an amount equal to the amount of stock held by them respectively, it is held by recent cases that if the stockholder sued is himself a creditor of the corporation to an amount equal to his statutory liability, he may set up that fact as an equitable defense; but not where the amount of his claim is less than such liability: Mathez v. Neidig, 72 N. Y. 100, 105; Agate v. Sands, 73 Id. 620; Wheeler v. Millar, 90 Id. 353. Thus, says Finch, J., in Wheeler v. Millar, supra: "If the stockholder sued is himself such creditor to an amount equaling his statutory liability, he has quite as good a right to the fund which is pursued as the pursuer. Indeed, he has the better right, because it is already in his possession, and it would be inequitable to take it from him for the benefit of another creditor who has no superior equity. But the stockholder must be really a creditor of the company. He must stand in a relation to it which in equity and justice is as strong as that of the assailant.

But here the facts show that the stockholder is not a creditor when accounts are adjusted, and has no equity against the fund in his hands. He is bound first to pay his own debt to the company, and is in the end not its creditor at all. If, after paying his debt, the company still owed him, to the extent of that balance, he would have an equitable defense. But the balance is the other way. Equitably he is the debtor of the company, with his claim against it extinguished, and has nothing upon which to found an equitable claim against the statutory liability." See also Remington v. King, 11 Abb. Pr. 278. In Missouri, in the special statutory procceding against a stockholder, he is allowed to offset a debt due him from the corporation: Jerman's Adm'r v. Benton, 79 Mo. 148; Webber v. Leighton, 8 Mo. App. 502; Merchants' Ins. Co. v. Hill, 12 Id. 148; but where an unsatisfied judgment in favor of a stockholder and against the corporation has been allowed as a setoff in a former proceeding by another creditor against such stockholder, this cannot avail in a subsequent proceeding against him, such judgment having been in the mean time satisfied: Simmonds v. Heman, 17 Id. 444. And in Georgia, applying the principle that a stockholder may reduce or discharge

hiз proportionate individual liability by payment to one creditor before suit brought by another, it is held that a bona fide debt of a stockholder against the corporation may be set off by him in a suit to enforce his liability: Boyd v. Hall, 56 Ga. 563.

ESTOPPELS IN ACTIONS TO ENFORCE STATUTORY LIABILITY OF STOCKHOLDERS FOR CORPORATE DEBTS.-As in the case of creditor's suits to compel the payment of unpaid subscriptions by stockholders, in actions to enforce their statutory liability for the corporate debts, they are estopped from denying that the corporation was legally organized: Corwith v. Culver, 69 III. 502; Wheelock v. Kost, 77 Id. 296; McCarthy v. Lavasche, 89 Id. 270; 31 Am Rep. 83; Shafer v. Moriarity, 46 Ind. 9; Hager v. Cleveland, 36 Md. 476; Hammond v. Straus, 53 Id. 1, 15; Eaton v. Aspinwall, 19 N. Y. 119; Abbott v. Aspinwall, 26 Id. 202; Aspinwall v. Sacchi, 57 Id. 331; Perkins v. Hatch, 4 Hun, 137; McHose v. Wheeler, 45 Pa. St. 32; Slocum v. Providence Steam etc. Co., 10 R. I. 112; Keyser v. Hitz, 2 Mackey, 473; Casey v. Galli, 94 U. S. 673; and where an attempt has been made to increase the capital stock of a corporation, stockholders who have voted for the increase, accepted their share of the additional stock, and received dividends thereon, as against creditors are estopped from questioning the validity of the increase to escape their individual liability: Veeder v. Mudgett, 95 N. Y. 295.

STATUTE OF LIMITATIONS IN ACTIONS TO ENFORCE STOCKHOLDER'S STATUTORY LIABILITY.—Where the liability of a stockholder is immediate and primary, and not contingent upon obtaining a judgment against the corporation, the statute of limitations plainly begins to run against the stockholder at the same time it begins to run against the corporation: Cook on Stock and Stockholders, sec. 227; Mitchell v. Beckman, 64 Cal. 117; Stillphen v. Ware, 45 Id. 116; and see Conklin v. Furman, 57 Barb.484; 8 Abb. Pr., N. S., 161, affirmed in 48 N. Y. 527; but where a creditor is first obliged to obtain a judgment on his claim against the corporation, and have an execution issued thereon and returned unsatisfied, the statute does not begin to run in favor of a stockholder until the return of the execution: Cook on Stock and Stockholders, sec. 227; Handy v. Draper, 89 N. Y. 334; and see Shellington v. Howland, 53 Id. 371. Where the individual liability of stockholders arose under the charter, "upon failure of the bank," the liability gave at once the right to sue, and consequently the statute began to run at the same time: Carrol v. Green, 92 U. S. 509, 511; and see Godfrey v. Terry, 97 Id. 171; Terry v. McLure, 103 Id. 442.

The liability of the stockholder has been held to be a liability "created by law," within the meaning of a section of the statute of limitations: Green v. Beckman, 59 Cal. 545; Moore v. Boyd, 15 Pac. Rep. 670 (Cal.); Hawkins v. Furnace Co., 40 Ohio St. 507; and to be a debt grounded upon a "contract without specialty": Terry v. Calnan, 13 S. C. 220; Carrol v. Green, 92 U. S. 509; and a debt "founded on specialty ": Atwood v. Rhode Island Agricultural Bank, 1 R. I. 376; Bullard v. Bell, 1 Mason, 243; but not a liability upon a "statute" for a 'forfeiture”: Corning v. McCullough, 1 N. Y. 47; 49 Am. Dec. 287; overruling Freeland v. McCullough, 1 Denio, 412; 43 Am. Dec. 685; and holding that the only limitation provided for a suit against a stockholder was six years, within which actions of account, assumpsit, or on the case founded on any contract or liability, express or implied, are to be commenced; but see Lawler v. Burt, 7 Ohio St. 340; and compare Gridley v. Barnes, 103 III. 211. STOCKHOLDER'S Discharge in Bankruptcy as Affecting Statutory LiaBILITY FOR CORPORATE DEBTS. - A discharge in bankruptcy releases a shareholder of a national bank from his statutory liability to creditors of the bank, where, at the time of his discharge, the claims of the creditors were prov.

able, and not merely contingent: Irons v. Manufacturers' Nat. Bank, 27 Fed. Rep. 591; 17 Id. 308. But it is otherwise held, the liability of stockholders for the debts of the corporation is not a "debt" which can be proved against their estates in insolvency: Kelton v. Phillips, 3 Met. 61; Bangs v. Lincoln, 10 Gray, 600.

STATE V. NEVIN.

[19 NEVADA, 162.]

PUBLIC OFFICERS WHO ARE INtrusted with PUBLIC FUNDS, and required to give bonds for the faithful discharge of their official duties, are not mere bailees of the money, to be exonerated by the exercise of ordinary care and diligence. Their liability is fixed by their bonds; and the fact that money is stolen from them, without any fault or negligence upon their part, does not release them from liability thereon.

BOND REQUIRING FAITHFUL PERFORMANCE OF OFFICIAL DUTY IS AS BINDING upon the principal and his sureties as if all the statutory duties of the officer were inserted in it.

COUNTY TREASURER IS REquired to SAFELY KEEP PUBLIC MONEY, by the

Compiled Laws of Nevada, and pay it out only as provided by law. STATE IS NOT COMPELLED TO WAIT UNTIL CLOSE OF COUNTY TREASURER'S TERM OF OFFICE before commencing an action upon his bond, where he admits the defalcation, and claims the right to interpose the defense of a robbery of the funds.

ACTION against the county treasurer and his sureties upon his official bond. The facts are stated in the opinion.

W. E. F. Deal and William Woodburn, for the appellants. W. H. Davenport, attorney-general, and J. A. Stephens, district attorney, for the respondent.

By Court, HAWLEY, J. This action was brought against the county treasurer of Storey County, and the sureties upon his official bonds, to recover an amount of money admitted to be deficient in the accounts of the county treasurer. The answer alleges that the money was forcibly taken by robbers from the treasurer and carried away by irresistible force, "without any fault or negligence or want of reasonable care or diligence in the preservation and care of said sum of money, so that said sum of money was entirely lost to the treasury of said county, and no part thereof has ever been recovered." The district court sustained a demurrer, which was interposed to this answer, upon the ground that the facts stated did not constitute any defense to the cause of action.

Was this ruling of the court correct? The conditions named in the official bonds "is such that if the above-bounden Den

nis Nevin shall well and truly and faithfully perform and execute the duties of treasurer of the county of Storey now required of him by law, and shall well, truly, and faithfully execute and perform all the duties of such office of treasurer required by any law to be enacted subsequently to the execu tion of this bond, then this obligation to be void and of no effect; otherwise to be and remain in full force and effect.” Appellant insists that his responsibility under this contract is simply that which the common law imposes upon a bailee for hire; that he is not in any sense an insurer of the moneys in his custody, and should not be held responsible for the money that was stolen from him, and taken by the use of irresistible force, without any negligence or fault or want of care on his part. The great weight of the authorities upon this subject are adverse to the views contended for by appellant. The general rule upon this subject is to the effect that public officers who are intrusted with public funds, and required to give bonds for the faithful discharge of their official duties, are not mere bailees of the money, to be exonerated by the exercise of ordinary care and diligence; that their liability is fixed by their bond; and that the fact that money is stolen from them without any fault or negligence upon their part does not release them from liability on their official bonds.

Recognizing the almost universality of this rule, appellant contends that the decisions against him are founded upon the peculiar wording of the bonds, or provisions of the statute, to the effect that the officer shall safely keep and pay over all moneys coming into his hands. It is true that in United States v. Prescott, 3 How. 588, Commonwealth v. Comly, 3 Pa. St. 374, State v. Harper, 6 Ohio St. 610, 67 Am. Dec. 363, Inhabitants of Hancock v. Hazzard, 12 Cush. 112, 59 Am. Dec. 171, and other cases, considerable stress is placed upon this language in the bond. Thus in United States v. Prescott, supra, the court said: "The condition of the bond has been broken, as the defendant, Prescott, failed to pay over the money received by him when required to do so; and the question is, whether he shall be exonerated from the condition of his bond, on the ground that the money had been stolen from him. The objection to this defense is, that it is not within the condition of the bond, and this would seem to be conclusive. The contract was entered into on his part, and there is no allegation of failure on the part of the government. How, then, can Prescott be discharged from his bond? He knew the extent of his obligation when he