30 rmnmaui amroarma.
pany. The company was then in this position: The stockholders,
on the twelfth of January, 1871, in case the assets of the company
were not sufficient to pay its debts, were liable for all claims on con-
_ tracts at that time in force. They were not liable on subsequent
contracts. For these latter, therefore, the creditors could only look
to other assets of the company. As at the time the assignee dis-
tributed the 40 per cent. to the creditors it could not be known to
what extent a call would have to be made on the stockholders, it
would seem that it was proper to make the distribution generally to
all the creditors, but it must be regarded as a conditional distribu-
tion, subject to correction upon the collection of all the assets of the
company, and upon the payment of all liabilities of the stockholders.
But now it is ascertained that the stockholders must be called upon
to meet an existing deficiency, and we have to take the case, therefore,
upon the basis that a portion of the claims arising on contracts in
force on the twelfth of January, 1871, have been paid with other
assets of the company. -
J It is urged that the stockholders stand in the position of sureties to
pay the debts of the company. It is, perhaps, not material what
term we apply to them. Whatever is legally due from them consti-
tutes a fund for the payment of the debts of the company. Their
liability is undoubtedly secondary, namely, on default of the assets
of the company not being sufficient to liquidate the claims against it.
If the stockholders, on the twelfth of January, 1871, are relieved in
part fromtheir liability because some of the debts against them
. have been paid by other assets of the company, then they are to that
extent discharged from their legal obligations, which, we have seen,
were to the full extent of all debts accruing upon contracts at that
time in force; that is, they would be in part released from the claims
against them because the assignee, from the general assets of the
company, has paid 40 per cent. to the creditors. In case the subse-
quent creditors of the company cannot be fully paid out of the gen-
eral assets, the question is whether the stockholders can thus be par-
tially released from their obligations, and whether, on the contrary,
they should not be compelled to pay all that was due; and if their
. creditors have received anything from other assets of the company,
that amount should not be restored to the general fund from pay-
ments to be made by the stockholders of the twelfth of January, 1871.
It seems to me that, in such a case, they must discharge all their
obligations,-they must pay the amount in full to meet their claims
on contracts existing at that time, and, of course, including an