Page:Federal Reporter, 1st Series, Volume 8.djvu/507

HOBART V. JOHNSON. 492 �every direction; they necessarily intersectthecommon highways at numerous points. The raies of law to which I have referred, requir- ing equal care and caution on the part of those who run railroad trains and those who travel the highways, if obeyed, will prevent ac- cidents. We must hold all parties to its strict observance. Because this, in my judgment, is a case in which those rules were disregarded by the plaintiff, I am constrained to hold that he cannot recover, and therefore sustain the pending motion, I am the better satisfied with this ruling, because the case would, I presume, go to the supreme court, and upon the record thus made up the plaintiff can take excep- tions, and have the questions upon which he relies fully and fairly presented to that tribunal. ���HoBABT, Eeceiver, etc., v. Johnson. �{Circuit Court, S. D. New York. June 30, 1881.) �1. National Banks — Act of 1864, } 12— Nattjbb of Shabeholdbk's Liabilitt. �The liability which shareholders in national banks incur under section 12 of the act of 1864, which provides for a liability " to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares," is that of prineipals, not of sureties. �2. Nature of Liability of Shaeeholders in National Banks— Rbv. St. New �Jbksbt, (1874,) p. 469, { 5— Mabkibd Wonen. �Such a liability is not one on a " promise to pay the debt, or answer for the default or liability, of any other person," within the meaning of the proviso to section 5 of the Revised Statutes of New Jersey of 1874, p. 469. �3. ESTOPPEL. �On the principle of estoppel, one cannot take advantage of certain statutor; provisions without incurring thereby the attendant liabilities. �John II. Knox, for plaintiff. �Joseph H. Choate, for defendant. �Blatchfobd, C. J. The complaint alleges that the First National Bank of Newark, located in Newark, New Jersey, was duly organized as a bank under the act of June 3, 1864, (13 St. at Large, 99;) that on the fourteenth of June, 1880, it became insolvent; that the plain- tiff was appointed its receiver; that its assets were insufficient to pay its debts; that the comptroller of the currency, under section 12 of said act, has ordered and made an assessment on the shareholders of said bank, "equally and ratably, to the amount of 100 per centum of the par value of the shares of the capital stock of the said associa- tion beld or owned by them, respectively, at the time of its failure or suspension," and has ordered the plaintiff to institute suits to enforco ��� �