¶1(dissenting). This is not a suit by creditors to enforce the statutory liability of stockholders for assessments on shares of stock, therefore the statute of limitations is not, I think, involved. This is a proceeding to wind up an insolvent banking corporation, of which appellant was both depositor and stockholder. As a depositor of the bank he occupied the relation of creditor, and as a stockholder he was a debtor to the extent of the unpaid subscription on his stock. While both of those relations subsisted, and before the statute of limitations barred the assertion of any rights or the enforcement of any obligations with respect thereto, the chancery court by proper decree established the claim of appellant as a creditor, -but in the same decree the court annexed a condition to the allowance making it subject to settlement with the appellant of his liability as a stockholder. No appeal was taken from that decree. Appellant waited out the period of limitation for institution of an independent action against him to enforce his obligation as a stockholder to the creditors of the bank, and now asks the court to ignore the express condition upon which his claim as a creditor was allowed and to require the receiver to pay his claim despite the fact that he was, at the time the court allowed his claim, under legal obligation to the other depositors to hand over a much larger sum to reimburse such depositors for their losses.
¶2The proceedings are in a court of equity, and it is contrary to principles of equity to permit appellant to assert his rights under the decree conditionally allowing his claim more than nine years ago, without requiring him to abide by the conditions specified in the decree' To apply the statute of limitations to that state of facts is, in my opinion, to transform the statute from a shield •of protection into a sword of injustice. The original decree allowing the claim is still in force with its conditions annexed, and appellant should be required to abide by the conditions before he can be permitted to reap any benefits under it.