1. Eight years after a bill in equity had been filed, and on the
day it was dismissed, on a final hearing upon the pleadings and
proofs, an amended bill was filed without leave.
Held that
it must be disregarded in the consideration of the case here.
2. The statute of limitations is a bar to a suit brought four
years after a bank in South Carolina had permanently suspended
specie payments, by a holder of its notes to enforce the individual
liability of the stockholders.
3.
Carrol v. Green, 92 U. S. 509, and
Godfrey v. Terry, 97 U. S. 171, cited
and approved.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
This was a suit in chancery brought by Terry against McLure, as
receiver of the Bank of Chester, certain officers of the bank, and
one or two of its stockholders. Its main purpose was to obtain a
discovery of the names of the stockholders at the date of the
failure of the bank in order to make them, when discovered, liable
for the amount of the circulating notes of the bank held by the
complainant. It would be a useless task to trace here the
interminable amendments to the original bill, none of which varied
essentially its character, though some of the later ones attempted
to set up fraud in the stockholders in receiving dividends declared
and paid on their stock while the bank, as he alleged, was in a
state of insolvency. It is enough to say of all these amendments
except the last that no sufficient statement of the names of the
stockholders who received such dividends, and of the amounts
received by each, or of the circumstances under which they were
declared or received, is found whereon to charge any one
stockholder.
This amended bill gives the names of a large number of
stockholders, with a statement of the sum received by each, and is
full of the general allegations that the money so received was a
trust fund that should have been applied to the payment
Page 103 U. S. 443
of the debts of the bank, but was diverted from its proper use
to the payment of dividends.
This amended bill, however, was filed on the sixth day of May,
1878, which was eight years after the original bill was filed. It
does not appear that any leave of the court was obtained to file
it, though some four or five other amended bills show in every
instance that they were filed with the leave of the court. It is a
fair inference that what counsel on the other side say in their
briefs is true -- namely that it was filed without leave and was
disregarded by the court. In fact, the record shows that the
original bill was dismissed on its merits after hearing on the
pleadings, testimony, and argument of counsel, on the same day that
this last amended bill was filed. Whether before or after the
decree of the court was rendered is not shown. Nor is it material,
as it must be understood that however it got to be filed in court,
it was done without consent of the court or of counsel for the
defendants. It must be disregarded, therefore, in the consideration
of the case here.
As regards the statutory liability of he stockholders, the
allegations of the bill, the answers of the defendants, and the
evidence taken in the case all show that the suspension of specie
payments took place on the twenty-seventh day of November, 1860,
and that the statute of limitations of four years of the State of
South Carolina, applicable to such cases, bars the complainant's
right of recovery.
This point was adjudged in this court against the present
complainant in
Godfrey v. Terry, 97 U. S.
171.
See also Carrol v. Green, 92 U. S.
509.
The decree of the Circuit Court is therefore
Affirmed.