ognized and approved the distinction made by the same court in Hale v. Allinson. It said:

"The proposition that the bill was multifarious because of the misjoinder of parties and causes of action was not assigned as error in the circuit court, of appeals, and, therefore, might well be held not to be open. But passing that view, we hold the objection to be untenable. The acts complained of as to each defendant were of a like character, their operation and effect upon the rights of the complainant were identical, the relief sought against each defendant was the same, and the defenses which might be interposed were common to each defendant and involved like legal questions. Under these conditions the case is brought within the principle laid down in Hale v. Allinson, 188 U. S. 56, 77 [23 Sup. Ct. 244, 47 L. Ed. 380]."

In Bailey v. Tillinghast, 99 Fed. 801, 40 C. C. A. 93, the circuit court of appeals of the sixth circuit held that the receiver of an insolvent national bank might maintain a suit in equity to enforce an assessment against stockholders, where such an assessment is less than the full amount of their liability and where the question of law involved is common to the defendants and rests upon substantially the same facts. The court said:

"There is a common question in the case between the receiver and the defendants, namely, the question whether the latter were released from their stock subscription by the fact that, whereas the resolution for increasing the stock in the sum of $300,000 was that under which their subscription took place, yet subsequently, by proceedings to which they did not consent, the proposed increase was reduced to $150,000. The protest interposed by Bailey in behalf of himself and the other stockholders to the certification by the comptroller of the modified increase of the capital stock of the bank assumes that they stood on the common ground already stated. And these circumstances, namely, the great number of the parties on one side or the other, the identity of the question of law, and the similarity of the facts in the several controversies between the respective parties, are the basis on which the jurisdiction rests."

Pennsylvania Co. v. Bay (C. C.) 150 Fed. 770, and Illinois Cent. R. Co. v. Caffrey (C. C.) 128 Fed. 770, 775, and other cases unnecessary to cite, also support the proposition that a bill is not multifarious by reason of the joinder of many defendants not connected with each other where all are engaged in the same business and there is a common ground of defense in law and fact to the relief sought against them. But in the case now before us it does not appear that there was any common ground of law or of fact as between the defendants on which they stood by way of defense; and possibly each might urge by way of defense to the collection of the assessment facts and points of law variant from those relied on by any other defendant.

At this point it is material to consider whether the present bill prays relief against any one of the defendants of such nature as to require or justify a proceeding in equity rather than an action at law. As already stated the bill does not pray for or involve an accounting or contribution. It seeks simply the collection of legal pecuniary claims. from the several defendants fixed in amount at the sum of $2.50 on each of the preferred shares held by them respectively. The object of the suit is to place in the hands of the receiver such moneys as he may be entitled by reason of the assessment to receive from them for the payment of the debts of the American Alkali Company.

The authorities clearly establish the principles which must determine whether in a given case a statutory liability of a stockholder or his liability for unpaid subscriptions or assessments on his stock should be enforced in equity or at law. In Pollard v. Bailey, 20 Wall. 520, 22 L. Ed. 376, an action at law had been brought by a creditor of an insolvent state bank against one of its stockholders to recover a claim he held against the bank. The charter provided that "individual stockholders, having shares in said bank, shall be bound respectively for all the debts of the bank in proportion to their stock holden therein." The court below gave judgment for the plaintiff, which was reversed by the Supreme Court; the latter court, among other things, saying:

"Each stockholder is bound for the debts in proportion to his stock. His liability is not limited to the par value of his stock, neither is he bound absolutely for the payment of the full amount of that. He must pay a sum which shall bear the same proportion to the whole indebtedness that his stock bears to the whole capital, and is not required to pay more. For the purposes of this case it is not necessary to decide what effect the insolvency of any of the stockholders would have upon the liability of such as are solvent. It is certain that no stockholder is liable for more than his proportion of the debts. This proportion can only be ascertained upon an account of the debts and stock and a pro rata distribution of the indebtedness among the several stockholders. The proper action, therefor, to enforce the liability is one in which such an account can be stated and distribution made. Such an action calls specially for the exercise of the powers of a court of equity, which can bring before it all the necessary parties and adjust all their rights. Every stockholder, when called upon to perform his obligations, has the right to require that the extent thereof shall then be determined once for all, as well that which he is under to his associate stockholders as that to the creditors."

In Terry v. Tubman, 92 U. S. 156, 161 (23 L. Ed. 537), the court said:

"The case of Pollard v. Bailey, 20 Wall. 520 [22 L. Ed. 376], is an authority against the maintenance of a separate action by one creditor who seeks to obtain his entire debt to the possible exclusion of others similarly situated. The proper proceeding is in equity where all claims can be presented, all the liabilities of the stockholders ascertained, and a just distribution made."

While the principle of Pollard v. Bailey and Terry v. Tubman and other similar cases palpably has no application to that now before us, they are valuable as illustrating the essential difference between them and this suit considered with reference to any one of the defendants. In Flash v. Conn, 109 U. S. 371, 3 Sup. Ct. 263, 27 L. Ed. 966, the court held that the liability of a stockholder of a New York corporation under a provision in a general incorporation act of that state that "all the stockholders of every company incorporated under this act shall be severally individually liable to the creditors of the company," to the amount of stock held by them respectively, created a legal claim enforceable at law. The court, among other things, said:

"Lastly, it is objected that the declaration sets out a case which should have been prosecuted in equity, and not at law. There is no ground for this objection to rest on. In the cases of Pollard v. Bailey, 20 Wall. 520 [22 L. Ed. 376); Terry v. Tubman, 92 U. S. 156 [23 L. Ed. 537], to which we are referred in its support, the liability of the stockholders was in proportion to the stock held by them. Each stockholder was, therefor, only liable for his proportion of the debts. This proportion could only be ascertained upon an account of the debts and stock, and a pro rata distribution of the indebtedness among the several stockholders. This, the court held, could only be done by a suit

in equity. But in this case the statute makes every stockholder individually liable for the debts of the company to an amount equal to the amount of his stock. This liability is fixed, and does not depend on the liability of other stockholders. There is no necessity for bringing in other stockholders or

creditors."

In Auer v. Lombard, 72 Fed. 209, 19 C. C. A. 72, in the circuit court of appeals of the first circuit, a bill had been brought by some of the creditors of a Colorado bank against a portion of its shareholders to enforce the statutory double liability of the latter. The court had occasion to refer to two acts of Colorado, one passed in 1877 and in 1883 made applicable to the officers and stockholders of savings banks, and the other in 1885. The first provided:

"The officers and stockholders of every banking corporation or association formed under the provisions of this act shall be individually liable for all debts contracted during the term of their being officers or stockholders of such corporation, equally and ratably to the extent of their respective shares of stock in any such corporation or association, except" &c. Gen. St. 1883, § 279.

The second provided:

"Shareholders in banks, savings banks, trust, deposit, and security associations, shall be held individually responsible for debts, contracts and engagements of said associations in double the amount of the par value of the stock owned by them respectively." Laws 1885, p. 264.

The court, among other things, said:

"The earlier of these two statutes required an apportionment among stockholders. In many jurisdictions, if not in all, this would involve a bill in equity with an accounting of all the corporate liabilities and a contribution by the stockholders, and for this the further making the corporation, and perhaps all stockholders, parties. The act of 1885 establishes

*

a liability of an essentially different character from that of 1883, in the fact that it is not ratable, and also of an essentially different amount. The two cannot stand together with reference to the same corporation, and debts of the same period of contracting; and we have no doubt that, so far as this controversy is concerned, the later act wholly supersedes the earlier one, and the complainant's rights rest on it alone. As the liability involves no accounting, the remedy is at law only. Kennedy v. Gibson, 8 Wall. 498, 505 [19 L. Ed. 476]. Casey v. Galli, 94 U. S. 673 [24 L. Ed. 168]. We do not say that there might not be a case under the statute which would involve an accounting, and the securing and distribution of a fund, but only that no such case is shown here."

The assessment was laid for the purpose of paying the debts of the American Alkali Company. It was fixed at the definite sum of $2.50 on each preferred share held by the defendants respectively. There is no suggestion in the bill that the assessment will not be sufficient to pay in full the debts of the corporation and all expenses. Further, the bill neither prays nor involves any accounting or contribution. Each defendant is separately and independently charged with a definite sum for which, if liable, he is liable without reference to any other defendant. The bill does not pray for the ascertainment or marshaling of assets or debts, or for the fixing of priorities, or for the payment of the debts of the corporation, or for a distribution. It was filed simply for the recovery of separate and independent legal pecuniary demands. It is wholly immaterial, so far as ulterior purposes are concerned, whether the receiver shall receive those moneys through the instru

mentality of a bill in equity, on the one hand, or, on the other, by actions at law. In either event the fund after its collection by the receiver would be applied to, the payment of debts under order of court. Should there be any residue after the payment of all debts it would be distributed among the stockholders in proportion to the number of their shares, save in so far as any of them had failed to pay the several amounts assessed against them; and in the event of such failure, whether from insolvency of individual stockholders or from any other cause, the several amounts for which they were respectively in default would, preparatory to a final distribution, be deducted from the amount of the shares of the fund which they otherwise would be entitled to receive. But all these matters belong to subsequent proceedings in one or both of the suits instituted in New Jersey and Pennsylvania in September, 1902, and still pending, and do not pertain to the present bill.

There is no distinction in principle, so far as jurisdiction in equity or at law is concerned, between the enforcement of the total liability of a stockholder for his unpaid subscriptions of stock and the enforcement of an assessment less than his total liability, such as is disclosed in the present case. It is true that in Kennedy v. Gibson, 8 Wall. 498, 19 L. Ed. 476, which was a suit by a receiver of an insolvent national bank, appointed under the national banking act of June 3, 1864, c. 106, 13 Stat. 99, to enforce the personal liability of some of the stockholders, the court said:

"The liability of the stockholders is several and not joint. The limit of their liability is the par of the stock held by each one. Where the whole amount is sought to be recovered the proceeding must be at law. Where less is required the proceeding may be in equity, and in such case an interlocutory decree may be taken for contribution, and the case may stand over for the further action of the court-if such action should subsequently prove to be necessary-until the full amount of the liability is exhausted."

This statement was unnecessary to the determination of the question before the court, as the bill sought to enforce the full statutory liability, and the case was decided on the ground that it did not appear that the comptroller of the currency had taken any action touching the enforcement of the personal liability of the stockholders. Further, the passage must be read in the light of the law and facts there involved, and when so read is inapplicable to the case before this court. The statement that when less than the total liability is sought to be enforced "an interlocutory decree may be taken for contribution" has, for the reasons hereinbefore expressed, no pertinency to the case before us. Again, we are not aware of any case, similar or analogous to this, in which the decision proceeded on the ground that, while the total separate and independent liability of a stockholder, in the absence of special circumstances of an equitable nature, can be enforced only at law, a fixed liability for less than such total can, in the absence of such circumstances, be enforced in equity. We should long hesitate before recognizing the soundness of a contention which, were it to be sustained, would withhold from stockholders when sued for statutory liability or unpaid subscriptions trial by jury at the whim of those laying an assessment. A remarkable spectacle would be presented if,

knowing that an assessment of the total liability would enable stockholders to enjoy the right of trial by jury, those charged with making it were permitted to deprive stockholders of such trial by making an assessment amounting to ninety or ninety-nine per cent. of the total liability, with the intention of subsequently collecting the balance.

In conclusion we have failed to find any well-considered case supporting the contention that under the principles enunciated in Hale v. Allinson the court below properly could, under the circumstances disclosed, and on the bill as filed, assume equitable jurisdiction for the enforcement of the assessment in question. The bill must, therefore, be dismissed as to the appellants, with costs, and it is so ordered.

THE BAILEY GATZERT.

(Circuit Court of Appeals, Ninth Circuit. April 25, 1910.)

No. 1,746.

1. COLLISION (§ 100*)-PRECAUTIONS FOR PREVENTING COLLISIONS-SPEED IN FOG-MODERATE SPEED."

A steam vessel passing from Portland down the Willamette river in a dense fog at a speed of 15 miles an hour, in view of the extensive commerce on such river, was not going at the moderate speed required by article 16 of the Inland Navigation Rules (Act June 7, 1897, c. 4, 30 Stat. 99 [U. S. Comp. St. 1901, p. 2880]), which provides that in a fog a vessel shall go at a moderate speed, "having careful regard to the existing circumstances and conditions."

[Ed. Note. For other cases, see Collision, Cent. Dig. § 215; Dec. Dig. § 100.*

For other definitions, see Words and Phrases, vol. 5, pp. 4551, 4552. Collision rules-speed of steamers in fog, see note to The Niagara, 28 C. C. A. 532.]

2. COLLISION (§§ 75, 99*)—PRECAUTIONS FOR PREVENTING COLLISIONS-VESSELS AT ANCHOR-LIGHTS, SIGNALS, AND LOOKOUTS.

A dredge lawfully fixed in a channel for improving it is to be considered as a vessel at anchor, and is under obligation to use the same precautions to guard against collisions that a vessel at anchor is in respect to the exhibition of lights, maintaining a watch and other measures calculated to make its position known.

[Ed. Note. For other cases, see Collision, Cent. Dig. §§ 113, 115, 211, 212; Dec. Dig. §§ 75, 99.*]

3. ADMIRALTY (§ 118*)-APPEAL-REVIEW-FINDINGS OF FACT.

On appeals in admiralty, when questions of fact are dependent on conflicting evidence, the decision of the District Judge who heard and saw the witnesses will not be reversed unless clearly against the evidence. [Ed. Note. For other cases, see Admiralty, Cent. Dig. § 770; Dec. Dig. § 118.*]

4. COLLISION (§ 100*)-VESSELS AT ANCHOR-LOOKOUT.

Whether or not an efficient lookout was maintained on a dredge at work in a channel during a dense fog held immaterial, in a suit for collision with the dredge by a moving steamer, where the fog bell on the dredge was being rung at intervals of less than a minute, and could be

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes