86 FEDERAL REPORTER.'
but a 'careful consideration of the merits of the case has led us tOo theS'ame result as would a granting of the motion. For this reason we hMe given it no consideration. The decree below is affirmed, with costs. ' '
HOW A'RTH 'T. ELLWANGER.
SAME v; KENT. SAME v.
(Circuit Court, N.D. New York. March 31, 1898.) , Nos. 3,211-3,213. Under the constitution and ,statutes of Washington, which provide: "That each stockholder of any banking · ' . . association shall be individually and personally liable. equally and ratablY,and not one for another, for all the contracts. debts; andengagenients. of such corporation or association accruing Whl}.e ![ltockholders to. the extent of the amount of their stock therein, Il<t the ,par value tjlereQf, .In .addition to the amount invested in such sllal'es;"..;..an action' toenfor<;e'such liability may be maintained by a receiver. ' ,' ,. , ,. ' : . 2. SAME-LEVY' Ol' ASSEsSlrENT. The order$' anddecree<1' of the'superlQr collrt of Washington in appointing baDk, IlBCertaining the deficiency, and directing a receiver of aJ;l Insolvent an a.ssessIJ;lent on stockholders, ar,e IJlnding on stockholders Who are not '" " , parties to the proceedings. 1.
BANKS ANDBANll;ING-LIABILITY OF STOCKHOLDERS-SUIT BY RECEIVER.
At Law;, ,Tried; by, the court. These actions are brought against the ,defendants who :were stockholders of of Tacoma, Wa$,., a Uability created by the law the Traders' of that stll,te .!-Vaking them; responsible ratably to the extent of thelr'$tock'fpr all debts ,of the bank while they remained stockholders. at Tll,e(lefendants are The plaintiff,.is ac1tillen of citizens of New. York,restdiIlg at :1;tQchester. , On the 19th' day of May, 1894, the plaintiff was appointed receiver of the Traders' Bank by an order of the superior court, of Washingtonmllde du: 4n action commenced against said bank by Henry Hewett,Jr.. and ·Gl¥lrge Browne in which It was adjudged that the bank had suspimded business and was Insolvent. The plaintiff dUly qualltl,ed as receiVel"atId has since acted assueh.On the 12th of September, 1894, tlie court made fin order 'In said aCtion permitting certain stockholders to intervene of tbe bank. On the for the beuelit,of thetnseltes and.' all 2()th of October all the (iefllndants, , B. W lodworth, were by order of the court upon their own petition made parties to the said action. After applying all the property of the, bank to the payment of its debts there remained a deficlencY,which, ;on Martlh IT,,118m, :was .adjusted and 'adjudged by the court to be' the: sum lof $131,670. ,'j)bei plaintU'I' was tllEjreupon directed by the lID o.f per cent. and bring court to levy uP9n suit against those wpp, afterdemap.d, refused tC1 pay. The amounts assessed' the ,respe<;titely were,' dnly demanded and payment " . , " , I " i I. " · thereof refused.
f?r M. B:. McMath,'for defendant
' ' ;WOOdW?fth,' ','
OOXE,!?istrict: Judge; ,It ftiot'disputed 'that the defendants were, stockhoW.ersof' tlie' the bartkbecame insol'Vent,' that tne'plaintiff Ii ppoiWfed' that a large" deficiency 'was tIui.t' an I l1siessment ''\ths levied by the receiver· upon
the defendants and that all this was done under and pursnant to the constitution and laws -Of Washington alid in 'c6iiformity to the orders and decrl'cs of the superior court oHhat:state. The first proposition argued by the defendants is that the plaintiff, as receiver, is not entitled to maintain the action. The constitution and statutes of Washington (CQnst. art. 12, § 11) provide: "That eaeh stockholder ot any' banking · · · association shall 'be Indi-
vidually and personally liable" equally and ratably, and not one for another;: for all the contracts, debts, and engagements of such corporation or assoeiatlon accruIng while they remain stockliolders to the extent of' the,' amount of their, stoek therein, at the par value thereof, in additloll to the amouh,t invested In such ,. ': ' shares."
The courts of Washington have decided that this liability can only be enforced by a receiver under the direction of the court. Cole v. Railroad 00;,9 Wlish.487, 37 Pac. 700; Wilson v. Book; 13 Wash. 676,43 Pac. 939; Hardin v. Sweeney, 14 ,Wash. 129, 44P.ac. 138; Watterson v. Masterson, 15 Wash. 511, . .1041. .The practical effect of a ruling that a receiver cannot maintain the suit would be to render the law nugatory as to all but resident stockholders. The Washington courts 'having ruled'that a receiver only can bring the suit, it is manifest, should the federal courts and other state courts hold that he cannot maintain the action, that the defendants not only but all stockholders beyond the jurisdiction of the Washington courts willescapea liabi'lity intended to'oe uniform and for the' benefit of all the creditors. ' , The precise question was involved in Sheafe v. ,La.riIller, 79 Fed. 921,: and was answered adversely to the defendants' contention. The case aroSe under. the si:une law, and, upon the facts, was almost identical with the casein hand. See, also, Schultz v. Insurance Co., 77 Fed. 375,387; Avery v. Trust Co., 72 Fed. 700; Fed. 892. Failey v. Talbee, Again it is argued that theorders and decrees of the Washington court were nOt binding upon the defendants, and in support of this view variour;l alleged in the proceeding-s are pointed out. The Kent and Ellwanger were parties to the Washington action and. l\re therefore in no position to attack the jndgment of the court in a collateral proceed.ing. The defendant. Woodworth was not a party. But whether parties or not the law seems clear that the stockholders are bound by the order making the assessment. Hawkins v. Glenn, 131 D. S. 319, 9. Sup. at. 739. In Sheafe v. Larimer,supra, the court says: "
"In this case It must be held that It is not open to the defendant to question the validity of the assessment order, on the ground that the stockholders were not personally notified of the application for the order, or for the reason that the stockholders should not have been assessed until the other assets of the corporation had been wholly exhausted."
'l'he actions are not barred by the statute of limitations for the reason that the cause of action did not acct·ue to the receiver prior to the assessment and that was not made until March 17, 1897. The actions were commenced two months thereafter. It follows that the plaintiff is entitled to judgment as demanded in the complaints, respectively, with interest at the rate of 6 per cent. per annum from \fay 18, 1897, and costs.
86 FEDERAL JtEPORTER·
.SMITHv. NEWELL et aL (Circuit Coun, D. utah. No. 191.
i. }IrNERAL CLAIM-LocATION MARKS-SUFFICIENCY·
March 21, 1898.)
. Location of a mineral claim. parallelogram in shape, was marked upon thl:' ground by placing at each corner stakes about 4 feet high, and sImilar stakes at the discovery point, and at points upon the side lines. On the discovery stake, and upon a tree aboJjt 20 feet therefrom. were placed name of the claim and its description, date notices of lqc,ation. containing of location. and the names of the locators. Held, that the claim was sufficiently Indicated upon the ground, though all of the stakes were not marked with the name of the claim.
SAME-OBLITERATION OF .MARKS.
When a mineral claim is once. properly marked upon the ground. the rights of the locators are not affected by the subsequent obliteration of the marks. or the remova!of the notice without their fault.
8. SAME-RECORD-SUFFICIENCY OF DESCRIPTION.
A recorded notice of location, in::1tS description or; a claim, erroneously referred to the "southeasterly" . end .of another claim, when the claim had no such boundary, and described a d18tance of 400 ;feet as "4," and gave the courBe8 of a certain boundary Hoe as "northerly" an.d "southerly," when the courses of such line were not true north and south. The' notice correctly described the location with reference 'to a well-established line of another claim, and with the aid of the location stakes the lines of the claim could be easily ascertained,. by applying the description of the record to the stakes and monuments. Held, that the, description was sufficient.
.. SAME-PRIOR LOCATION-PRESUMPTION OF DISQOVERY;.
Proof of a record of a prior location, and the marking of it on the ground, wlll not defeat a subsequent location, in the absence of proof of a discovery by the prior locators. The record and the fnarklng are not sufficient to . authorize the court to presumealliscoyery.
Booth, Lee & ,Gray and Morris L.;Ritchie, for plaintiff. Brown & Henderson and D. C. McLaughlin, for defendants. MARSHALL, District Judge. This suit is broughtin pursuance of an adverse claim filed in the land office under section 2326 of the Revised Statutes of the United States, 'by the plaintiff, who claimsto own the Alta Belle mining claim, against the application of the defendants fora patent for the Dutchman lode. The plaintiff's claim was located on May 25, 1894; the defendants', on January 1, 1889. It is not contended that the Dutchman lode was abandoned; or subject to forfeiture for failure to do the required annual work thereon; but the right of the plaintiff to recover depends on the establishment of the original invalidity of the Dutchman location. That no valjd location of the Dutchman was made is claimed on three grounds: (1) That the claim was not marked on the ground, so that its boundaries could be readily traced; (2) that the record of the claim did not contain such a description of it as to identify it; (3) that at the time of the location of the Dutchman the premises were not subject to the location, but constituted a part of the Black Rock No.1 and the Black Rock No.2 claims. These objections will be considered in their order. 1. The evidence shows that on January 1, 1889, the locators of the Dutchman placed at each corner of the claim substantial stakes, about