Opinion of the Court. directors and other business, at which it was voted, in accordance with an order from the comptroller of the currency, made under section 5205 of the Revised Statutes, to make an assessment of 100 per cent upon the shareholders of the bank, pro rata for the amount of capital stock held by each; the vote being 5494 shares for the assessment and 55 shares against it. The defendant in error on the day of the annual meeting, and before its opening, made the following demand upon the bank in writing, delivered to the directors: "To the Pacific National Bank: "BOSTON, January 10, 1882. "The conditions upon which you received four thousand dollars of me on the twenty-eighth day of September, 1881, not having been performed, I hereby demand repayment of said four thousand dollars. "MARY J. EATON, "By J. H. BENTON, JR., Att'y." She never paid the assessment made on the 10th of January, but on the 14th of March, 1882, she brought this suit in the Superior Court for the County of Suffolk, to recover back the four thousand dollars which she had paid for the new stock. The cause having been removed to the Supreme Judicial Court of Massachusetts, was tried in May, 1886, and judgment rendered for the plaintiff in May, 1887, a few months after the decision of this court in the case of Delano v. Butler, 144 Mass. 260, 269. The Supreme Judicial Court in its opinion drew a distinction between that case and the present. Its language is as follows: "The case raises a question which was suggested, but not decided, in Delano v. Butler, 118 U. S. 634. It was there said: 'It will be observed that, without waiting to see what the future action of the association and the comptroller of the currency might be on the question of the ultimate amount of the increased stock, the plaintiff in error paid for his shares and accepted his certificate. This he did, in legal contemplation, with knowledge of the law which authorized the association and the comptroller of the currency to reduce the amount Opinion of the Court. of the proposed increase to a less sum than that fixed in the original proposal of the directors, and such payment and acceptance of the certificates in accordance therewith might amount, under such circumstances, on his part, to a waiver of the right to insist that he should not be bound unless the whole amount of the proposed increase should be subscribed for and paid in; but without insisting upon that point or deciding it, we think that the subsequent conduct of the plaintiff in error amounts to a ratification.' 118 U. S. 650. In the present case the plaintiff paid in her money, but did not accept a certificate of stock." The court also assumed that the filling of the whole $500,000 of stock was a condition on which the obligation of the subscribers to the new stock to take the same depended. The latter point was fully considered by us in the case of Aspinwall v. Butler, and we held that the filling of the said $500,000 of additional stock was not a condition of the liability of the subscribers to the new stock, but that the association always retained the power of reducing the amount of stock, with the approval of the comptroller of the currency. It is unnecessary for us to discuss that question again. The defendant in error was just as much bound by her subscription to the new stock as if the whole $500,000 had been subscribed and paid in. The only question to be considered, therefore, is whether the fact that the defendant in error did not call for and take her certificate of stock made any difference as to her status as a stockholder. We cannot see how it could make the slightest difference. Her actually going or sending to the bank and electing to take her share of the new stock, and paying for it in cash, and receiving a receipt for the same in the form above set forth, are acts which are fully equivalent to a subscription to the stock in writing, and the payment of the money therefor. She then became a stockholder. She was properly entered as such on the stock book of the company, and her certificate of stock was made out ready for her when she should call for it. It was her certificate. She could have compelled. its delivery had it been refused. Whether she called for it or not was a matter of no consequence whatever in reference to her rights and duties. Counsel for Parties. The case is not like that of a deed for lands, which has no force, and is not a deed, and passes no estate, until it is delivered. In that case everything depends on the delivery. But with capital stock it is different. Without express regulation to the contrar a person becomes a stockholder by subscribing for stock, paying the amount to the company or its proper officer, and being entered on the stock book as a stockholder. He may take out a certificate or not, as he sees fit. Millions of dollars of capital stock are held without any certificate; or, if certificates are made out, without their ever being delivered. A certificate is authentic evidence of title to stock; but it is not the stock itself, nor is it necessary to the existence of the stock. It certifies to a fact which exists independently of itself. And an actual subscription is not necessary. There inay be a virtual subscription, deducible from the acts and conduct of the party. The whole matter with regard to the new stock of the Pacific National Bank of Boston was so fully discussed in the cases of Delano and Aspinwall that it would be a work of supererogation to prolong this opinion. The judgment of the Supreme Judicial Court of Massachusetts is Reversed, and the cause remanded for further proceedings not inconsistent with this opinion. THAYER v. BUTLER. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DIST CT OF MASSACHUSETTS. No. 300. Argued March 23, 24, 1891.- Decided May 25, 1891. Pacific National Bank w. Eaton, ante, 227, affirmed and applied. THE case is stated in the opinion. Mr. J. II. Benton, Jr., for plaintiff in error. Mr. A. A. Ranney for defendant in error. Opinion of the Court. MR. JUSTICE BRADLEY delivered the opinion of the court. This is an action brought by the receiver of the Pacific National Bank of Boston against George L. Thayer, trustee, to recover one hundred per cent of the amount of his capital stock in said bank upon his individual liability as a stockholder under section 5151 of the Revised Statutes. The amount sued for was $8000 (with the interest thereon), being $4000, the amount of forty shares of stock held by him, as trustee, prior to September, 1881, and $4000 for new stock subscribed for and taken by him, as alleged by the plaintiff, in September, 1881, as and for his, the said Thayer's share and proportion of the new stock issued at that time, as shown in the preceding case just decided, and in the case of Delano v. Butler and Aspinwall v. Butler, there referred to. His liability to pay the $4000 upon the original stock was not disputed, and judgment for that amount, with interest, was rendered by consent. But Thayer denied any liability by reason of the new stock, denying that it was his stock, and claiming a set-off for the money ($4000) which it was conceded he had paid therefor, on the ground that he only paid for stock which was to form part of an increased capital of $500,000, and no such increase was ever made. The case is in all respects similar to that of Pacific National Bank v. Mary J. Eaton, ante, 227, just decided. A jury being waived, the cause was tried by the court upon an agreed statement of facts; in addition to which the plaintiff (below) produced the testimony of Mr. Thayer himself, giving the particulars of his acts in relation to the new stock, which elicited nothing important, and which the court disregarded in coming to its conclusion. The statement of facts contained the same facts which were received in evidence in the case of Pacific National Bank v. Eaton, ante, 227, just decided, and in addition thereto a list of payments on account of the new stock, with the date of each payment; a copy of the report of the bank examiner, Needham, dated November 18, 1881; a copy of minutes of meetings of the directors of the bank December 10, 1881, and December 14, 1881; copy of letters from the comptroller of the currency to the bank examiner, Opinion of the Court. December 13, 1881, and from the examiner to the comptroller, December 14, 1881; and minutes of directors' meeting January 2, 1882. This additional evidence had relation mostly to the voluntary assessment, and to the question of the resumption of business by the bank, and has no further effect upon the present controversy than as going to show, perhaps, good faith on the part of the directors of the bank. We do not think, however, that it alters the case in the slightest degree, so far as the question of the plaintiff in error's liability for the new stock is concerned. It appears from the agreed statement of facts that, after the directors of the bank had voted, on the 13th of September, 1881, to increase the capital stock from $500,000 to $1,000,000, and notice to that effect had been sent out to the stockholders, giving to each a right to take the new stock at par in equal amounts to that then held by them, Thayer, the plaintiff in error, went to the bank and paid $4000 from the trust money in his hands, belonging to the same trust for which he already held the original forty shares, and received therefor a receipt, a copy of which is as follows: "Pacific National Bank. "$4000 Sep. 28. "BOSTON, October 1st, 1881. "Received of Geo. L. Thayer, trustee, four thousand dollars on account of subscription to new stock. "J. M. PETTENGILL, Cashier." He also, at the same time, acting for Mary J. Eaton (the defendant in error in the case just decided), who had forty shares of the capital stock of the bank, paid the same amount for her, and took a similar receipt to her. As stated in the previous case, certificates for the new stock were made out in a book, with stubs to indicate their contents, and were delivered to the stockholders as they called for them. Such a certificate was made out for Mr. Thayer, but he never called for it, though he was registered in the stock book of |