Page:Federal Reporter, 1st Series, Volume 3.djvu/754

 UOBtlET V. TEATEB. 747 �that the creditors may bave relief în equîty; and they refer to the reported cases in New York to support the proposition. Noriis V. Johnson, uhi supra, When no remedy to enforce such a liability is provided in Massachusetts, they restrict it to equity; whereas, in New York, the better opinion is that the courts allow the crediter to select bis remedy, either law or equity, unless the remedy is prescribed by statute ; and the statute of Missouri gives a remedy against the stockholder, as well before as after dissolution. Dissolution must precede the remedy in New York, but in Missouri the crediter may bave bis remedy either before or after dissolution, if the other needful circumstances concur. Except when the corporation is dissolved, the liability of the stockholder under the consti- tution and statute of the state is secondary, and can only be enforced after judgmenfr against the party presumably liable, and retum of execution that there cannot be found any prop- erty whereon to levy the execution. State St. 56j 198. Clearly, the remedy in such a case must be by action at law, in accordance with the practice in ail or most of the states where similar statutes have been passed. Grund v. Tucker, 5 Kan. 70, 77. Whatever right the crediter had under the other sections dees not arise out of contract, but is given by statute, and depends entirely upon its preper construction. Kritzer-v. Woodson, 19 Mo. 327; Ochiltree v. Contracting Go. 54 Mo. 113, 117; Dauchy v. Brown, supra ; Erickson v. Nes- mîth, 4 Allen, 233; Halsey v. McLean, 12 Allen, 438. �Sufficient has already been remarked to show that when a statute confers a right and imposes a liability, without pro- viding a distinct remedy for its enforcement, the common law will supply the omission by giving to a party an appro- priate action by which his right may be enforced ; but it is equally well settled in principle, and by ail the authorities, that when a statute confers a right and provides a remedy, that remedy, and that only, must be pursued. Knowlton v. Ackley, 8 Cush. 93, 97; Kelton v. Phillips, 3 Met. 61; Dauchy V. Brown, 24 Vt. 197-203. Apply that principle in the case before the court, and it is plain that the bill in this case can- not be maintained, as the statute plainly indicates an action ����