oourt.The questionsilnvolvedinitiverepassed upon by the chancery eourtof hadjurisdictiono'f thesilbject·matter, and the partieS'vlWere the Samei l ' All questions now raised could have been raised there; In legal presumption, they wel'e.Withthe entering of the judgment by that court, all matters involved in that issue passed, as the partielJ the possibility of litigation afterwardsa:ndelsewhere, ;intO the conclusiveness ofa final decree of that court. "Th.at complete answer to·the present bill, and the
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In re CERTAIN STOCKBOLDERSOF THE CALIFORNIA NAT. BANK OF , SAN DIEGO.
(Dilltrict Court, S. D. November 28, 1892.)
A federal Court will nqt, even },las the power under Rev. St. § 5234, ' grant an orper receiverQf a national banlt to. compound the statutory liability of 'certain stockholders by accepting payMent of a gross sum, less than is due, in satisfaction and discharge thereof, although more molleywould thus beree.lized than bY,Proceediugs tocollecUhe same in the n,sy.a1:,', W,IloY""w",ll,ell" it appea,rsprobable, such stOCkhol,der,s b,ave fraudulently COnveJ[lld, property to avoid their legal obligations as stockholders, or to shield themSelves from injury and exposure by litigation.
M. ,T. .Allen, for petitioner. ROSS, Distriot Ju<lge. This is, an, application for an order of the court anthorizingthe receiver of the California Nationa! Bank of San Diego to compound the statutory liability of certain of itsstockhold· ers. The petition for the order sets forth the insolvency of the bank, the appointment of the receiver by the comptroller of the currency, the qualification of the receiver, and'hisentry upon the duties of his office. It further sets forth that, at the time of the suspension of the bank, 781' shares of the capital stock of the association were owned by certain named persons, in certain stated shares, residing in the states of Maryland and Pennsylvania; that subsequently, it being made to to the of the currency that the assets of the bank were not su:ffici£mt to pay' its liabilities, the comptroller, on the 5th day of May, 1892, levied. an assessment of $100 per share upon each and every share of the stock of the banlt, and directed the petitioning receiver to take the necessary proceedings to enforce to that extent the individual'liability of the shareholders. The petitioner states, upOn information .and belief, that many of the owners of the 781 shares areinsplvent;that nQt more than 40 per cent. of the amount of the assessment against those shares could be collected by process of law, and that such would be at great cost and expense; that among other information furt1ished the petitionmg receiver is that contained in the petition to the; comptroller, signed by H. H. Haines, DavidM. Taylor, and S. R. Dickey, (holders of a portion of the 781 shares of, srock,) a copy of which is attached to the petition of the
IN RE CERTAIN STOCKHOLDERS OF THE CALIFORNIA NAT. BANK.
receiver; that the holders of the 781 shares, being 41 persons in number, have proposed to the. receiver· to pay a gross sum of $30,000 in satisfaction and discharge of their liability as such shareholders; that the proposition to accept that sum of money, and compound and settle the liability of the stockholders, has been submitted to the comptroller of the currency, who has directed the receiver to petition the court for an order authorizing the settlement, a copy of which instructions is annexed to the petition; that the comptroller, however, required that all claims which any of the holders of the 781 shares may have against the trust, whether proven or unproven, should be assigmed to the receiver for the benefit of the trust.· The petitioner further represents that, in his opinion, it is for the best interests of the trust that the offer of $30,000 in cash from the holders of the 781 shares of stock, in addition to the assignment and transfer of all their claims against the trust, be accepted in full of their statutory liability. The petition of Haines, Taylor, and Dickey, addressed to the comptroller of the currency, represented, among other things, that the 781 shares of stock of the insolvent association are held by persons residing in the immediate vicinity of their residence; that of the 781 shares a large number are held by persons who are Wholly insolvent, others by persons of very limited means, from whom nothing could be collected by execution, and others by persons who would resist the Iassessment by litigation and otherwise; that they (Haines, Taylor, .and Dickey) have carefully computed the amount which could probably be realized by the trust through adverse proceedings from these 781 shares, the holders of all of which are personally known to them. /as well as their responsibility, and in their judgment it would be less Ithan 20 per cent.; that they (Haines, Taylor, and Dickey) have interiviewed the holders of the 781 with a view of inducing them to I join with the petitioners (Haines, Taylor, and Dickey) in making an offer of compromise, and through their efforts they have induced the I insolvent stockholders to consent to make partial payment, which, added to the sum to be contributed by the remaining stockholders, will make a sum largely in excess of any sum that could be collected from them all by adverse proceedings; that the acceptance of the offer of compromise would result in immediate payment to the trust of a large sum of money, and would be a saving of time, trouble, and expense of litigation, which in some cases might be determined in favor of the stockholders; that this litigation would result in long delay, and, even if successful, in the mean time those who are now thought to be solvent may become insolvent, or otherwise unable to pay any judgment that ultimately may be recovered against them; that the petitioners (Haines, Taylor, and Dickey) are authorized, on behalf of the 41 stockholders of the 781 shares whom they represent, to pay the sum of $30,000 in cash; and they ask that their proposition be accepted. In his letter of instructions to the receiver, the comptroller said:
"The three gentlemen Who make the proposition were largely instrumental in placing the stock of the bank with the holders in their immediate vicinity, and for that reasol! have some interest in shielding them from unnecessary loss or vexations through litigation. It is perfectly apparent. however. that the men who make this proposition of settlement on behalf of the others, and who would