The third question lies at the threhold, and requires to be answered before approaching the consideration of the first and second questions. This becomes apparent when it is seen that if the first and second be answered in such a manner as to sustain the cause of action, the question would yet remain whether the receiver, appointed as stated, had authority to prosecute the suit, whilst, on the other hand, if the conclusion be reached that the receiver was without power to bring the suit-irrespective of what might be the reply to the first two questions-these questions become irrelevant and the case is disposed of.
The judgment against the corporation in the circuit court of the United States for the district of Kansas was rendered on December 31, 1897, prior, therefore, to the enactment of the Kansas statute of 1899. So, also, the execution was issued and the receiver appointed prior to the passage of that act. After the receiver had been appointed, however, and subsequent to the passage of the act of 1899, the court entered an order, directing the receiver to proceed against 'all or any of the stockholders of the Inter-State Loan & Trust Company, from whom, in his judgment, a recovery can be had to collect all of their liability as stockholders in said company.' Now the authority to so direct the receiver must rest upon either the statute of Kansas of 1868, referred to in the certificate, or upon the statute of 1898. But the right of the receiver of the assets of the corporation to sue under the Kansas law to recover the liability of a stockholder, cannot be evolved from the act of 1868, since that act made the liability of the stockholder, not an asset of the corporation, but an asset which the creditor of the corporation alone could recover for his individual benefit, to the extent required to pay his judgment obtained against the corporation. In Abbey v. W. B. Grimes Dry Goods Co. 44 Kan. 415, 418, 24 Pac. 426, 427, it was said, referring to the liability under the act of 1868:
'The nature of this liability is peculiar; it seems to have been created for the exclusive benefit of corporate creditors. The liability rests upon the stockholders of the corporation to respond to the creditors for an amount equal to the stock held by each, and it has been held that the action to enforce this liability can only be maintained by the creditors themselves in their own right and for their own benefit.'
The nature and extent of the liability under the Kansas statute of 1868 was so fully reviewed and stated in Whitman v. Oxford Nat. Bank, 176 U.S. 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477, that we content ourselves with referring to that case as conclusively demonstrating the proposition previously stated. Tested, then, by the Kansas act of 1868, it is manifest that the receiver had no authority to bring this suit even in the courts of the state of Kansas, and he clearly, therefore, had no power to prosecute such action in the courts of another jurisdiction. Indeed, it is manifest that the suit brought by the receiver which is now under consideration was not deemed by him to be a suit under the Kansas act of 1868, since the recovery which he seeks was not the amount of the judgment rendered in favor of the creditor in the particular suit wherein the receiver was appointed, but the whole sum of the stockholder's double liability, which could only be upon the theory that the receiver was entitled to take such liability as the receiver of the corporation and as a corporate asset to pay the debts generally. In fact, the foregoing propositions might have been taken as conceded, since in the argument at bar the right of the receiver to sue was upheld, not on the ground that he was acting under the act of 1868, but that he was proceeding in furtherance of and in supposed conformity to the act of 1898. This contention being in effect rested on the proposition that although the judgment was rendered and the receiver appointed before the passage of the act of 1898, the order of the court empowering him to enforce the liability of stockholders was entered after the enactment of the act of 1898, and therefore conferred upon the receiver the authority which it is in the argument assumed, he would have had a right to exercise if appointed under that act.