Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/722

 § 704.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. XIII. property. 1 Though it would seem that this last rule is inap- plicable to creditors of a dissolved corporation who can obtain no judgment at law against it. 2 § 704. A creditor suing for satisfaction of his debt may properly, and, according to the majority of decisions, must sue on behalf of himself and all other creditors who are willing to join. For the unpaid subscrip- tions constitute a fund for the benefit of all the creditors. 3 In such an action it is proper to join all the share- holders as defendants ; and if the latter are too numerous to be joined, or if some of them are unknown to the plaintiff, or in- solvent, or beyond the jurisdiction of the court, the creditors' bill should contain allegations to this effect. 4 The corporation should also be made a party defendant. 5 Joinder of parties in creditors' bills. the assignment by the corporation of unpaid subscriptions, see §§ 543, 707. As to right of receiver of an insol- vent foreign corporation to sue for unpaid subscriptions, see § 393, note. 1 Terry v. Anderson, 95 U. S. 628, 636; Sturges ». Vanderbilt, 73 N. Y. 384; Blake v. Hinkle, 10 Yerger (Tenn.), 218. See Hatch v. Dana, 101 U. S. 205; Marsh v. Burroughs, 1 Woods, 463; Remington v. Samana Bay Co., 140 Mass. 494; Thomson- Houston Elec. Co. v. Murray, 60 N. J. L. 20; Wehn v. Fall, 55 Neb. 548. The Federal Supreme Court holds that the plaintiff must have obtained judgment against the corporation in the courts of the state where he seeks to sue the shareholder, or show that it was impossible to do so, before he can maintain an action for unpaid subscription against the shareholder. National Tube Works Co. v. Ballou, 146 U. S. 517. See, also, Swan Land Co. v. Frank, 148 U. S. 603; Hard- ware Co. v. Milling Co., 13 Utah, 423. As to the effect in such a suit of a judgment against a corporation, see § 737. 2 Terry v. Anderson, supra ; com- pare Sturges v. Vanderbilt, supra ; 702 Remington v. Samana Bay Co., 140 Mass. 494. 3 See Dabney v. Bank of South Carolina, 3 S. C. 124; Sawyer »• Hoag, 17 Wall. 610; Hickling v. Wilson, 104 111. 54; Lane's Appeal, 105 Pa. St. 49; Brundage v. Monu- mental Gold, etc., M'g Co., 12 Oreg. 322; Patterson v. Lyude, 112111. 196; Pickering v. Hastings, 56 Neb. 201; Welch v. Sargent, 127 Cal. 72. This rule holds good though the corpo- ration be a foreign corporation. lb. 4 Adler v. Milwaukee Patent Brick M'f'g Co., 13 Wis. 57; Vick v. Lane, 56 Miss. 681; Wetherbee v. Baker, 35 N. J. Eq. 501; Holmes v. Sherwood, 3 McCrary, 405; Bronsou v. Insurance Co., 85 N. C. 411. See Hadley v. Russell, 40 N. H. 109; Erickson v. Nesmith, 46 N. H. 371; Trust Co. v. Loan Co., 92 Me. 444. 5 Wetherbee v. Baker, 35 N. J. Eq. 501 ; Perkins v. Sanders, 56 Miss. 733; Holmes v. Sherwood, 3 McCrary, 405; Patterson v. Lynde, 112 111. 196; Potter v. Dear, 95 Cal. 578; contra, that corporation is not a necessary party, see German Nat. Bank v. Farmers & Merchants Bank, 54 Neb. 593.