dissenting. While I concur in most of the views presented by Mr. Justice Pope in the leading opinion, I am unable to agree with him in the view which he takes of the seventh, fourteenth, and fifteenth grounds of appeal, and will, therefore, confine myself to those grounds, stating very briefly the grounds of my dissent.
In view of the full and clear statement of the facts of this case and of the several provisions of the national banking law made in the leading opinion, it is needless to make any restatement here. The three grounds of appeal which I propose to consider, practically raise the single question whether the plaintiff can, upon equitable principles, be permitted to share in the fund in the hands of the agent until such shareholders as paid their assessments have- been refunded the amounts which they paid under the assessment made by the comptroller of the currency. It seems- to me that' this case must be governed and determined by the provisions of the national banking law, under which national banks are brought into existence and by which they are to be regulated. Without going into any detailed statement of these provisions, it is sufficient for the purposes of this inquiry to say: 1st. That when a national bank is put into liquidation, the comptroller of the currency may, whenever he deems it necessary, make such assessment upon each shareholder individually, not exceeding the par value of the shares held by such shareholder, as he thinks proper, and that his action in this matter is final and *235conclusive, not open to question by any one (Kennedy v. Gibson, 8 Wall., 498; Casey v. Galli, 94 U. S., 673). 2d. That such assessment is made upon the individual shareholder, and not upon the shares of the stock held by him upon which there is no lien, the shares of stock being referred to merely as the measure of the liability of the holder of the shares (Bullard v. Bank, 18 Wall., 589). 3d. That when the comptroller of the currency has made provision for the redemption of the circulating notes of the bank, and has paid all of its debts, any assets remaining in his hands or under his control shall be turned over to an agent, whose duty it is to distribute the same amongst the shareholders in proportion to the shares held by each. These propositions are either conceded, or so well settled by the decisions of the Supreme Court of the United States, as to be indisputable.
Looking at this case in the light of these principles, it seems to me clear that when the remaining assets were turned over to the defendant as agent, his duty as defined by the statute was plain- — to distribute the same amongst the shareholders in proportion to the shares held by each; and, therefore, the plaintiff as one of the shareholders, had a clear right to demand his pro rata share of the same. Inasmuch as the act of Congress manifestly contemplates the possibility of too large an assessment being made by the compt-roller'of the currency, which, as we have seen, would be conclusive upon the shareholders, it may be that it would have been better-that the act of Congress should have provided that the remaining assets, when turned over to the agent for distribution amongst the shareholders in proportion to the shares held by each, should not be distributed until after the stockholders who had paid their assessments had been refunded the amounts so paid; but I do not find any such provision in any of the acts of Congress upon the subject, and it is not for the courts to supply such omission.
It seems to me that the view taken by the Circuit Judge, and affirmed in the leading opinion, rests necessarily upon the idea that there is a lien upon the shares held by each individual shareholder to secure the payment of any liability which such individual has or may incur; for, otherwise, I do not see *236how the shares held by the plaintiff, under a sale made at the instance of the bank, the proceeds of which enured to the benefit of all the shareholders, can be affected by any liability of any kind which Bartlett, the former owner of the shares, had incurred. But, as we have seen, the idea that there is any such lien has been distinctly repudiated in Bullard v. Bank, supra. As well might it be said that if plaintiff had bought at the execution sale a horse formerly belonging to Bartlett, upon which there was no lien, it could be followed in the hands of the plaintiff, and subjected to some liability of Bartlett’s. The plaintiff never incurred any liability of any kind, so far as appears, to the bank, or to the stockholders, or to the officers entrusted with the duty of winding up the affairs of the bank, except a liability to pay the amount of his bid made at the sale of the Bartlett shares, which he, in common with the public generally, had been invited by those interested in the bank to make, without any notice or claim that the property so sold was subject to any lien or encumbrance of any kind, and that liability, it is conceded, he has fully discharged. When, therefore, he paid his bid aud received the sheriff’s certificate of sale, he became the owner of the shares, entitled to all the rights of any other shareholder. Code, sec. 259.
But, again, even if the equity claimed could be sustained, it is an equity in favor of the other shareholders, who are not parties to this action, and not an equity in favor of the defendant as agent. The defendant by his fourth defence, the only one which has been allowed, practically asks the court to relieve him from the performance of the duty imposed upon him by the act of Congress in the plainest terms, and to allow him, for his own protection, to set up some supposed equity in favor of third persons, who are not parties to this case, and who are not asked to be made parties, for the “Case” does not show that the defendant is now or ever was a shareholder. Perhaps if these third persons, the other shareholders, were before the court, their alleged equity, which the defendant has volunteered to set up for them, might be met by some countervailing equity in favor of the plaintiff. After the Bartlett stock has been sold, and bought by the plaintiff, practically at the instance *237and for the benefit of the other shareholders, and after the purchase money has been paid by the plaintiff and applied to the relief pro tanto of the other shareholders, it does not strike me as exactly in accordance with the principles of equity and good conscience, that they should now be permitted to exclude the plaintiff from the only possible benefit which he could derive from his purchase. It does not appear what was the amount of the purchase money paid by the plaintiff, but that is not material; for whether it was much or little cannot affect the principle involved. Suppose, by way of illustration, and simply to test the principle, the plaintiff had bid and paid the full par value of the stock, would it not shock the sensibilities of every right-minded person to say that the other shareholders, after receiving practically the full value of the shares, can deny to the purchaser any benefit from his purchase, simply because Bartlett had failed to pay the assessment of thirty-nine per cent, on the previous holder of the same shares! I do not overlook the fact that the plaintiff bought at sheriff’s sale, where the rule of caveat emptor applies; but as the defence set up rests wholly upon an alleged equity, it is entirely competent to meet it with a countervailing equity.
I think, therefore, that the judgment of the Circuit Court should be reversed, and that plaintiff is entitled to judgment for the amount claimed in his complaint.
Judgment affirmed.