the same grounds, as in truth it does not. Precedents might be still further multiplied upon this point.

In Nevitt v. The Bank of Port Gibson, 6 Smed. & M. 513, already referred to, nearly all the learning on this subject was exhausted, it having been twice argued with singular diligence and ability. And there, as everywhere else where the question has been raised, a majority of the court held, that the property and debts due to and belonging to the bank were a trust fund, subject to the cognizance and control of a court of equity, for the benefit of creditors. It is true, that Mr. Justice Thatcher, for whose ability I entertain a profound and undissembled respect, did not concur, but delivered a dissenting opinion. But I must think that the legal world, with great unanimity, will hold, that the science of jurisprudence is deplorably defective, if the assets of a corporation, and among these the capital stock authorized to be invested, and to which the public looks with confidence for security and indemnity, can not be rescued "as planks from the wreck," and saved for depositors, bill holders, and other creditors; and that although a corporation is dissolved, with or without legislative interference, that a court of equity will devise a mode, for the purposes of remedy, to hold the true parties to their just obligations.

The case of Hume v. The Winyaw and Wando Canal Company, 1 Carolina L. J. 217, carries this doctrine much further. Chancellor Desaussure was of the opinion that the individual corpo. rators would be liable in equity for debts, contracted with their consent, beyond the amount of their capital stock, on the same principle that they are bound for their subscriptions to the capital, unless their liability is limited by the terms of the charter, as it may be, by express provision to that effect. And there are not wanting jurists of great respectability, who think that "no principle can be more equitable than this, and none more just." We decline, however, indorsing the doctrine to this extent, not caring to go beyond the case made by the record, to provoke a controversy with those who "fear there is a tendency in the judicial mind of the age, to seek first for the equity of the case, as it is termed, and then for the law to support it," which complaint, by the way, I take to be a merited compliment to the purer and more elevated morality which adorns the pages of modern jurisprudence. I am content, however, to abide by the equity" of the Hardwickes, the Thurlows, and the Eldons of England; of the Marshalls, the Washingtons, and the Kents" (and Storys) "of the United States-an equity without discretion, fixed as

the principles of the common law, and like it, worthy of the freemen of whose fortunes it disposes."

It has been contended by one of the learned counsel for the defendant in error, that the amount paid in on the shares, and not the sum specified in the charter, constituted the capital stock of this bank. It will be perceived, however, that the act itself has settled this question, designating, as it does in so many words, the million of dollars authorized to be subscribed for its capital stock.

Vice-Chancellor Sandford, in Barry v. The Merchants' Ex-. change Co., 1 Sandf. Ch. 280, has given a definition of what is meant by the capital stock of a corporation. "It is," says he, "the aggregate amount of the funds of the corporation, which are combined together under a charter, for the attainment of some common object of public convenience or private utility. The amount is usually fixed in the act of incorporation, although it is sometimes otherwise. It is thus limited in reference to the convenience of the intended corporators, and for the information and security of the public at large. To the corporation, it prescribes the amount and subdivisions of their respective contributions to the common fund, the voice which each shall have in its control and management, and the apportionment of the profits of the enterprise. To the community, it announces the extent of the means contributed and forming the basis of the dealings of the corporate body, and enables every man to judge of its ability to meet its engagements and perform what it undertakes. And when, as in most instances, the statute requires the stock to be paid in before the corporation can transact business, security to those contracting with it is thereby superadded to the information of its resources. These objects, for the public benefit, are sometimes defeated by fraud and deception; but they are such as the legislature have in view in limiting the amount of the capital stock, and requiring a specified sum or proportion to be paid in."

The capital stock of a corporation, like that of a limited partnership or joint-stock company, under the act of this state, of 1837, Hotchkiss, 373, is the amount fixed upon by the partners or associates as their stake in the concern. Upon this, they get credit and transact business. It may not all be actually paid in, still they are liable to the public for the amount thus fixed. Additions, on the other hand, may be made to the original stock, by a successful prosecution of the business; still these profits do not constitute capital.

But while it is conceded that this may be a sound exposition of the law, as applicable to railroad and manufacturing corporations, it is argued that it is otherwise as to banking com panies; and the reason assigned is, that they do business only on the capital actually paid in, and moreover, that in this state they publish by authority of law, for the information of the community, semi-annually, under oath, a true statement of their condition, which is notice to everybody. The answer to this is, that the books make no such distinction; and when it is recollected that this corporation, like most other banking institutions in this state, is permitted, expressly by its charter, to contract debts by bond, bill, or other security, to three times the amount of the capital stock actually paid in, and over and above the specie deposited in its vaults for safe keeping, Prince, 127, it would seem that the principle upon which the complainant proposes to recover, would apply with peculiar force to these moneyed corporations. That is to say, that if upon two hundred and fifty thousand dollars paid in, the bank is authorized to contract liabilities to the amount of seven hundred and fifty thousand dollars, if in any case equity would decree that so much of the unpaid stock should be contributed as was necessary to extinguish the liabilities of the corporation, it would be this. And does experience prove that banks are less likely to contract debts beyond their means than other corporations?

On the contrary, their history demonstrates that there is no business so liable to be overdone, because none which holds out more tempting prospects to grow suddenly rich-none has been managed in a more reckless and improvident manner. A periodical madness seems to pervade the Union upon this subject, from which none are exempt. "The cool and sagacious sons of New England, the impetuous and impulsive children of the south, and the hardy and adventurous men of the west, have all performed the same circuit." Prudent and conscientious bankers (and there are many such among us) need not and will not complain of the checks thus thrown around their business. But be that as it may, any system of laws is essentially vicious, which allows natural or artificial persons to prey upon a credulous public, without let or hinderance. It is admitted that the country has sustained infinitely more injury from the circulation of worthless paper, than from the issue of spurious coin; and the financial abilities of the ablest statesmen have been tasked to the utmost to prevent a recurrence of the disasters produced from this cause in past years. At last the legislatures of the

several states, determining to protect those who were incapable of protecting themselves, have caused provisions to be inserted in modern charters, making each member, to a certain extent at least, personally liable, in his private estate, for the company debts; and the courts, in some respects, have applied the principle of copartnership to private corporations. Due regard for the interest of the community, in my humble judgment, requires that those regulations and decisions, instead of being relaxed by the courts, should be rigidly enforced. They would be recreant to their duty, in any wise to impair the security thus afforded, and perhaps the very best that could be devised against overissues or depreciation.

The third section of the charter declares, that "if there shall be failure in the payment of any sum subscribed for by any person, copartnership, or body politic, when the same is required to be paid by this act, the share or shares upon which such failure shall happen or accrue shall be, for such failure, forfeited, and may be again sold and disposed of in such manner as the directors shall order and provide, and the proceeds from such sale, together with the sum or sums which may have been paid thereon, shall revert to the benefit of said corporation:" Prince, 125.

Now, it is argued, that a court of equity can not coerce the contribution of the unpaid stock, because the stockholder has the right, under this clause in the charter, to abandon his shares altogether, even without the consent of the corporation, during its existence. We apprehend the law to be otherwise. This provision in the charter was inserted for the benefit of the corporation, and not of the stockholder. It was thought that this provision would coerce punctuality in paying the calls upon the stockholders, and if not, that it would secure to the company the speedy receipt of the money, by the sale of the stock.

And where the statute, as here, gives to a corporation the power to sell the shares of a delinquent stockholder, the remedy is cumulative, and does not impair the right to compel payment by action: Instone v. Bridge Co., 2 Bibb, 577 [5 Am. Dec. 638]; Tar River Navigation Co. v. Neal, 3 Hawks, 520; Highland Turn. Co. v. McKean, 11 Johns. 98; Hartford etc. R. Co. v. Kennedy, 12 Conn. 499; Dutchess Cotton Mfg. Co. v. Davis, 14 Johns. 238 [7 Am. Dec. 459]; Herkimer Mfg. & Hyd. Co. v. Small, 21 Wend. 273; Troy Turn. & R. R. Co. v. McChesney, Id. 296; Bean v. Cahawba etc. R. R. Co., 3 Ala. 660; Selma and Tenn. R. R. Co. v. Tipton, 5 Id. 787 [39 Am. Dec. 344]; Grata

▼. Redd, 4 A. K. Marsh. 103; Delaware etc. Can. Nav. Co. v. Sansom, 1 Binn. 70; Carlisle v. Cahawba etc. R. R. Co., 4 Ala. 70; Gosher. Turn. Co. v. Hurtin, 9 Johns. 217 [6 Am. Dec. 273].

I would add merely, that the decree to be rendered can and should be so molded as to give to the stockholders all the privileges to which they would have been entitled under the charter, had the stock been called in by the directors during the existence of the corporation.

As to the statute of limitations, it need only be said, that this is a case of a direct trust, purely technical, not cognizable at law, but falling within the proper, peculiar, and exclusive jurisdiction of a court of equity; and, consequently, one not subject to the presumption of satisfaction or payment or waiver: Bennett v. Colley, 2 Myl. & K. 225; Wedderburn v. Wedderburn, 4 Myl. & Cr. 52; Beaumont v. Boultbee, 5 Ves. 485; Gregory v. Gregory, Sir G. Cooper, 201; Townsend v. Townsend, 1 Cox, 28, 34; Chalmer v. Bradley, 1 Jac. & W. 51; Beckford et al. v. Wade, 17 Ves. 87. Not only is this claim not subject to the statute of limitations, but the doctrine of stale demand does not apply to it; for the bill was filed in five years after the liability accrued. The right to go into equity accrued from the time when the legal assets of the corporation were exhausted; in other words, when the complainant could no longer make his remedy against the company available at law. The return of nulla bona on the execution is dated in April, 1843, and the bill was filed in April, 1848, just five years thereafter.

Our judgment then is, that there was equity in the complainant's bill; that notwithstanding the dissolution of the corporation, by a forfeiture of its franchises, the obligations of its contracts survived, and that the creditors have a right to enforce their claims against any property belonging to the corporation, which has not passed into the hands of bona fide purchasers, and that so much of the capital stock originally subscribed for, as remains unpaid, is a trust fund for the payment of debts, subject to be reached in a court of equity, and made available for this purpose.

Finally, it is said that this bill was rightfully dismissed, because the proper parties were not before the court; that it was a creditors' bill, showing upon its face that there were other creditors, without stating who they were or the amount of their claims; that it was apparent, also, that there were other stockholders alike liable with the defendant, and no sufficient reason or excuse is alleged for not proceeding against them also; and