Some of the questions raised by the assignments of error are common to all the appellants, and others are peculiar to the individual cases. So far as necessary to the disposition of the case, they will be considered in their order.
The first assignment of error relates to the pleadings. It is objected that the court erred in permitting the complainant to file the amended bill of October 5, 1876, and also in permitting the amendment made at the hearing on July 23, 1883; and we are asked to reverse the decree on that account, and, on remanding the cause, to direct that the amended bill as amended be dismissed. The grounds of objection to the amendments as made are (1) that the amended bill stated a case entirely different from that contained in the original bill; and (2) that it made the bill, as amended, multifarious. The changes made in the case as originally stated in the bill are alleged to be (1) that it converted a creditors' bill, the object of which was to subject to the payment of the complainant's judgment assets of the corporation which could not be reached at law, into a bill for the additional purpose of enforcing the statutory liability of the stockholders of the bank to answer for its contracts, debts, and engagements; and (2) that it converted the bill filed by the complainant in his own right into a bill on behalf of himself and all other creditors of the corporation.
It is a mistake, however, to assume that the bill as originally filed was strictly and technically a creditors' bill merely, for the purpose of subjecting equitable assets to the payment of the complainant's judgment. That undoubtedly was a part of its purpose and prayer, and in pursuance of it a small amount of the assets of the bank were recovered by the receiver, converted into money, and applied to the payment of the costs in the cause; but the whole of this recovery amounted only to $3,346.96, and it was not until after this result became manifest that application was made, and leave given, to file the amended bill. But the main purpose of the bill as originally framed was to obtain a judicial administration of the affairs of the bank, on the ground that its capital stock and property was a trust fund for the benefit of its creditors, the company being insolvent and in liquidation, and that, under the management of its officers and directors, this trust was being violated and perverted. The bill contained allegations that Holmes, the president and manager of the bank, had converted its assets to his own use and to the use of others, in violation of his trust and in fraud of creditors, applying the assets of the bank so as to prefer some creditors over others, and otherwise dissipating and squandering them. It accordingly prayed for a full discovery of all the transactions on the part of Holmes in reference to the affairs of the bank since its suspension, for an injunction prohibiting any further transfers of its assets, for the appointment of a receiver with the general powers of receivers in like cases, and for general relief.
If this bill had been prosecuted, as originally framed, to final decree, and had resulted in the recovery of assets of the bank applicable to its purposes, it would necessarily have been made to appear during the progress of the suit that there were other creditors of the bank equally entitled with the complainant to share in the fruits of the litigation. The relief that would have been granted in such circumstances would have been by means of a decree distributing the assets obtained equally among all the creditors, including the complainant, who, in respect to such assets, would have been entitled to no priority, either by virtue of having reduced his claim to judgment, or by reason of having first filed a bill to enforce the trust. In the case of an insolvent corporation thus brought into liquidation, n d wound up by judicial process at the suit of a creditor, whether he sues in his own right, or on behalf of himself and other creditors, the rule of distribution is the same, and is founded upon the principle of equality in which equity delights, unless a claimant or some other judgment creditor had, previously to the filing of the bill, obtained a lien at law upon some portion of the property distributed, or could establish a superior equity, existing at the time of the filing of the bill. Curran v. Arkansas, 15 How. 304; Wood v. Dummer, 3 Mason, 308; Ogilvie v. Knox Ins. Co., 22 How. 387; Sawyer v. Hoag, 17 Wall. 610.