Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/724

 § 707.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. XIII. § 706. So in Hatch v. Dana, 1 a creditor's bill brought against a portion of the shareholders, not to wind up the company, but simply to obtain the payment of the plaintiff's debt out of unpaid subscriptions, was sustained by the Su- preme Court of the United States. " The liability of a sub- scriber for the capital stock of a company is several, and not joint. By his subscription each becomes a several debtor to the company, as much so as if he had given his promissory note for the amount of his subscription. At law, certainly, his subscription may be enforced against him without joinder of other subscribers ; and in equity his liability does not cease to be several. A creditor's bill merely subrogates the creditor to the place of the debtor, and garnishees the debt due to the indebted corporation. . . . We hold that the complainant was under no obligation to make all the shareholders of the bank defendants in his bill. It was not his duty to marshal the assets of the bank, or to adjust the equities between the corporators. In all that he had no interest. The appellants may have had such an interest, and, if so, it was quite in their power to secure its protection. They might have moved for a receiver, or they might have filed a cross-bill, obtained a discovery of the other stockholders, brought them in, and enforced contribution from all who had not paid their stock subscriptions. Their equitable right of contribution is not yet lost." 2 § 707. Instead of himself suing, a creditor may apply for the appointment of a receiver, whose function it will be to collect unpaid subscriptions. 3 And after the appointment of a receiver, a creditor cannot bring suit in his own name for unpaid subscrip- tions ; nor prosecute a suit further if he has already Appoint- ment of receiver. Assignee in bank- ruptcy. 1 101 U. S. 205. 2 Hatch p. Dana, 101 U. S. 205, 211, 214; opinion of the court per Strong, J.; accord, Ogilvie w. Knox Ins. Co., 22 How. 380 ; Cornell & Michler's Appeal, 114 Pa. St. 153; Baines v. Babcock, 95 Cal. 581; Pierce v. Mil- waukee Const'n Co., 38 Wis. 253; Palmer v. Woods, 149111. 146; Fouche v. Merchants' Nat. Bank, 110 Ga. 704 827; Harrell v. Blount, 112 Ga. 711; Cooper 17. Security Co., 127 N. C. 219. See Smith, Rec'r, v. Johnson, 57 Oh. St. 48G; Walter v. Merced Academy Ass'n, 126 Cal. 582. Com- pare Griffith v. Mangam, 73 N. Y. 611 ; Thompson v. Reno Savings Bank, 19 Nev. 103. 3 See § 542. A receiver should not call on share-