Page:Federal Reporter, 1st Series, Volume 8.djvu/72

58 FEDERAL REPORTES. �of their stock therein, at the par value thereof, in addition to the amount invested in such shares; and section 5234 authorizes the comptroller of the ourrency, on proof of the existence of certain conditions, not necessary to be specified here, to appoint a receiver, whose duty it shall be to enforoe such individual liability of the stockholders. �The plaintiff is the receiver of the First National Bank of Newark, aind has brought this suit against the defendant to recover the amount eue to the receiver, upon the assessment made by the comptroller upon the defendant as one of the shareholders, of the association, �.The third plea, to which the plaintiff has demurred generally, set& forth that the First National Bank of Newark, of which the plaintiff is receiver, is indebted to the defendant in large sums of money^ •^hich exceed the damages sustained by the plaintiff by reason, etc., out of which sum the defendant is ready and willing, and offers, to set off and allow the full amount of the damages claimed. �The demurrer raises the question whether such set-off is allowable ; i. e., whether a stockholder of a national bank, who happens also to be a creditor, may cancel or diminish his assessment by offsetting, his individual claim against the association. �Considering the ends plainly in contemplation by the foregoing provisions of the statute, it would seem, upon principle, that no such esoape from liability should be permitted by the shareholder. The object of the act was to make the holders of the stock responsible for a trust fund, equal, if necessary, to the amount of the capital of the bank, and to be devoted to the payment of all the creditors alike. If .the receiver^ ia his appeals to the shareholders for the payment of the assessments against them, may be met by their elaims as cred- itors of the association, it is not difficult to imagine cases in which the beneficent object of the law might be wholly defeated. Besides, the right to a set-off in pleading is a creature of the statute, and applies only to mutual dealings, and no such relations exist between the parties here. The liability to be enforced against the share- holder is not a debt due to the bank, but is a sum of money equal to the par value of his stock, payable by him to the receiver as an officer of the government by force of the law, and the assessment authorized and made by the comptroller. The effect of allowing such a set-off is to give the shareholder an advantage over other creditors. It practically pays his debt in full, and, by leaving so much less for others, diminishes his liability as a stockholder, which it was clearly the design of the law to impose. ��� �