decree from the Virginia court thus establishing the amount to be paid by each stockholder, being the balance of the unpaid subscriptions, filed this bill on behalf of herself and any other creditors of the company, who may make themselves parties and contribute to the costs of the suit.

man.

In her bill filed in Virginia she alleged that there was no. other creditor, and as the decree of that court directed the money collected to be paid over to her, she apparently satisfied that court that such was the case. It is not contended that there are any creditors residing in this state, and we understand it to have been conceded that the appellant did not reside here. The important question, therefore, for us to decide is, whether the appellant, after obtaining such a decree in the Virginia court as we have referred to, can now sue in her own name to recover the amount of the unpaid subscriptions alleged to be due by Thomas A. Bryan 550 and the estate of J. A. TempleThe bill alleges that the receiver made demand upon the executors of Templeman and on Bryan for the balance alleged to be due by them respectively, but they refused payment, and that the receiver has taken no further steps to collect them, although it is not alleged that he was unwilling or unable to do so. So far as we are informed, and indeed it is so stated in the brief of the appellant, there is no statutory remedy in Virginia in favor of creditors directly against stockholders for unpaid subscriptions. The right of the appellant, therefore, to proceed against them must depend upon the principle established by courts of equity, that unpaid subscriptions to stock of an insolvent corporation constitute a trust fund for the payment of debts, and that, notwithstanding the company may have failed to make a call or assessment, a court of equity can make its own call for such amount of the unpaid subscriptions as is necessary to pay the debts. The appellant went into the Virginia court and asked for the appointment of a receiver to take charge of the assets of the company, including the unpaid subscription to its capitalstock, and that the stockholders of the company "after they shall have been definitely ascertained, and their respective liabilities in the premises determined, may be required to pay to such receiver or to some one especially appointed by the court for the purpose, so much of their unpaid subscriptions, respectively, as may be found necessary to pay the plaintiff's said judgment and the costs of this suit." That court granted her prayer, made the assessments relied on as the basis of this proceeding, but, in doing so, expressly directed

that they should be paid to A. B. Pugh, receiver, and authorized him to sue for them. That decree, as we have said, is binding on and conclusive against the stockholders to the extent of determining the necessity for and the amount of the assessment, and until the assessment was made there was no unconditional liability on the stockholders who had paid the calls made by the president and directors. But the appellant having obtained a decree in a court of competent 551 jurisdiction, by which the receiver, and not herself, is authorized to collect the amounts due by the stockholders, as fixed by the assessment of the court, her right to sue for them is merged in that decree. Payment to the receiver would have been an absolute bar to her recovery, and he undoubtedly has the privilege of suing in any court which will recognize his authority. The only possible ground that she can now have to sue in another court must be the inability of that receiver, or anyone appointed in his place, if he decline or fail to act, to enforce the collections. In that event she might have some standing in a court of equity, but when her suit is founded on a decree, obtained at her instance, which directs the assessment made to be paid to another. person, as an officer or representative of the court, the inability of the latter to proceed should certainly be definitely and clearly established in order to enable her to maintain the proceeding in her own name. Has that been done in this case?

That the receiver could have instituted suits in the name of the company, for his use, would seem to be clear. Whilst the company is shown to be insolvent, it has not been dissolved so far as the record discloses. If it has not been dissolved, or if it has been and the Virginia law authorizes suit to be brought by the receiver, in the name of the company, there is express authority for such proceeding in this state in the case of Lycoming Fire Ins. Co. v. Langley, 62 Md. 196. In that case, a receiver had been appointed in Pennsylvania and assessments had been made on a premium note given to the insurance company by which the defendant promised to pay the amount named "in such portions and at such time or times as the directors of said company may, agreeably to their act of incorporation, require." One of the assessments was made after the receiver was appointed by the Pennsylvania court, and this court held that the action could be maintained in the name of the company. We can see no distinction in principle between that case and this, so far as 552 the right of the receiver appointed by the court of another state to sue-making the company the legal plaintiff.

Many authorities have held that, unless otherwise provided by statute, a receiver must sue in the name of the party over whom he has been appointed, if the legal title has not been formally assigned to him, and although in this state a receiver can sue in his own name, if so authorized by the court, he can also sue in the name of the original party: State v. Wilmer, 65 Md. 178; Lycoming Fire Ins. Co. v. Langley, 62 Md. 196.

But under the circumstances of this case, the receiver was not confined to that method of proceeding. We understand it to be conceded that there are no creditors of this company residing in this state, and, if not conceded, there is no allegation in the bill, or even suggestion in the testimony or other part of the record, that any of the citizens of this state are interested in the distribution of the assets of this company. The courts of this state had not taken jurisdiction over the subject matter of this suit or any of the property of the defendant, when this bill was filed. The subscriptions alleged to be due by Templeman and Bryan must be treated as Virginia contracts, as they were to be performed there and the rights and liabilities of the parties under them are to be determined by the law of that state: Fear v. Bartlett, 81 Md. 435, 446. The Virginia court had jurisdiction over the subject matter and has exercised it as far as it could in that state. Under these circumstances, we can see no reason why the receiver should not be permitted to sue here not because he, as a matter of right, can demand recognition in this state, but through comity between the states, which should permit the representative of the court of one state to sue in another, when such suit does not injuriously affect the interests of the citizens of the latter, or violate its policy or laws. It is true that as a general rule the functions and powers of a receiver, for the purpose of litigation, are limited to the courts of the state within which he has been appointed and that he has no extraterritorial 553 jurisdiction, and that such rule has been more than once announced by this court: Bartlett v. Wilbur, 53 Md. 485; Lycoming Fire Ins. Co. v. Langley, 62 Md. 196; Day v. Postal Tel. Co., 66 Md. 354. But as is said in 20 American and English Encyclopedia of Law, 244, in referring to the exception to this general rule: "The authorities supporting this exception are so numerous and the language of the courts so favorable to its extension, that it seems certain the exception will soon, if it has not already, supersede the general rule." In Bartlett v. Wilbur, 53 Md. 485, and Day v. Postal Tel. Co., 66 Md. 354, this court recognized the fact that there were excep

tions to the general rule, but in those cases the exceptions did not apply, as the exercise of the jurisdiction of the courts of this state had been previously invoked in regard to the same subject matter. In the case of Hurd v. Elizabeth, 41 N. J. L. 1, the question is very fully and ably considered. The decision of the supreme court of the United States in Booth v. Clark, 17 How. 322, which has been followed by courts adopting the general rule, including our own, is fully recognized by the supreme court of New Jersey, which held that although a receiver could not sue or otherwise exercise his functions, in a foreign jurisdiction, if such acts would interfere with the policy of the law in the foreign jurisdiction, or be to the detriment of resident creditors, yet "after completely protecting its own citizens and laws, the dictates of international comity would seem to require that the officer of the foreign tribunal should be acknowledged and aided." To the same effect are the cases of Bank v. McLeod, 38 Ohio St. 174; Gilman v. Ketcham, 84 Wis. 60; 36 Am. St. Rep. 899, where there is an excellent note on the subject; Boulware v. Davis, 90 Ala. 207; Bagby v. Atlantic etc. R. R. Co., 86 Pa. St. 291; Mitzner v. Bauer, 98 Ind. 427; Pugh v. Hurtt, 52 How. Pr. 22; Patterson v. Lynde, 112 Ill. 196, and other cases cited in 20 Am. & Eng. Ency. of Law, 241-245.

It will be seen from an examination of those cases that 554 the tendency is to recognize the exception to the general rule, and to apply it when it can properly be done within the lines indicated above, and we are of opinion that the exception is a proper one and will often promote the ends of justice without in any way being in conflict with the previous decisions of this court. Of course, we do not mean that the privilege shall be granted to a foreign receiver to sue for all kinds of property, but for a debt of the character of that before us we can see no reason why he should not be recognized and aided by our courts under such or similar circumstances as those disclosed by this record, to which we have referred. The appellant has undertaken to meet this by saying that the Virginia receiver was made a party defendant to this bill and has answered, consenting to a decree, but that will not do. The receiver is an officer of the court which appointed him and is subject to its orders. He is by the decree appointing him expressly required to report to that court. It would seem to be clear, then, that he has no authority to bind the Virginia court, or right to thus relieve himself of the duty assumed by him. Besides, we have said the

AM. ST. REP., VOL. LXVII.-24

appellant has no standing in the court to institute proceedings of this kind, because her right to proceed individually against the stockholders has been merged in the decree, obtained by her, directing the receiver to collect the very debts she now seeks to collect. She, therefore, cannot maintain the suit herself, nor can she confer on herself the right to sue the Templemans and Bryan by joining the receiver with them as codefendant. The proper course for her to pursue is to require the receiver to proceed, or, if he refuses to do so, to have another person appointed who will obey the order of the court appointing him.

It will not be out of place to say that when a receiver appointed by the court of one state desires to sue in a court in another state, it would be a proper practice for him to file a petition, setting forth such facts as we have indicated 555 as sufficient to enable him to do so in the latter court, asking permission to

sue.

As we are of opinion that the bill of complaint must be dismissed on the grounds we have stated, it will not be necessary to discuss the other questions raised. Indeed, as it is intimated in the brief of the appellant that additional evidence can be obtained as to whether J. A. Templeman did subscribe for the stock, and as the evidence does not clearly show whether the notice to creditors was given by his executors before they settled their final account, relied on as a bar in this proceeding, we deem it proper not to pass on those questions, but will for the reasons we have given affirm the decree dismissing the bill in this case.

CORPORATIONS JUDGMENT AGAINST CONCLUSIVENESS UPON STOCKHOLDERS.-A valid judgment against a corporation binds the stockholders in respect to corporate matters: Bear v. Board of County Commrs., 122 N. C. 434; 65 Am. St. Rep. 711; Ball v. Reese, 58 Kan. 614; 62 Am. St. Rep. 638; Holland v. Duluth Iron etc. Co., 65 Minn. 324; 60 Am. St. Rep. 480. A corporation represents and binds its stockholders in all matters within the limits of its corporate powers so long as it acts in good faith and without fraud upon their rights; and in the bringing and defending of suits affecting the rights and obligations of the corporation it binds the stockholders as fully as in the making of contracts: Nickum v. Burkhardt, 30 Or. 464; 60 Am. St. Rep. 822, and note; monographic note to Thompson v. Reno Savings Bank, 3 Am. St. Rep. 814.

RECEIVERS-FOREIGN-SUITS BY.-As a general rule, a receiver appointed by the court of one state has no power, as a matter of right, to bring suits regarding matters pertaining to his receivership in the courts of other states: See extended note to Straughan v. Hallwood, 8 Am. St. Rep. 49. State comity does not require the courts of one state to permit receivers appointed by the court of another state to exercise privileges detrimental to the citizens of the former while pursuing legal remedies there: See monographic note to Alley v. Caspari, 6 Am. St. Rep. 185. See Parker v. Stoughton Mill Co., 91 Wis. 174; 51 Am. St. Rep. 881.