Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/737

 CHAP. XIII.] SHAREHOLDERS AND CREDITORS. [§ 722. § 721. In respect to enforcing the statutory liability of shareholders to creditors, it may be said generally that the suit must be brought by the creditors and the proper not by the corporation or its receiver. 1 This liabil- ^ ties t0 ity, whether limited or not, is a security provided by law for the benefit of the creditors, over which the corpora- tion has no control ; and, consequently, an attempted assign- ment by the corporation of the statutory liability of share- holders is inoperative, although made for the equal benefit of all the creditors. 2 § 722. As to the necessary allegations in the complaint, it is impossible to state any more definite rule than simply that the complaint must contain the allega- averments tions essential to make out a case under the partic- |" f, lead " ular statute relied on. Thus, where the charter declares that " in all cases of losses exceeding the means of the corporation, each stockholder shall be held liable to the amount of unpaid stock held by him," the complaint must aver that the losses or liabilities of the company exceed its assets. 3 But it De G. & J. 544; Griswold v. Seligman, 72 Mo. 110, 119. See Root v. Sinnock, 120 111. 350. The authorities are so conflicting, and the statutes so diverse, that the only safe rule for a practitioner is to seek for decisions under the statute affecting his client, or statutes pre- cisely similar in terms. It would be well for the legislature always to designate the class of shareholders intended to be made liable. The Ohio rule is, that the share- holder who is such at the time the corporation contracts the debt, is the one liable; and the liability is not discharged by transfer, but transferee must indemnify transferrer. Harp- old v. Stobart, 46 O. St. 397. See, also, Sayles v. Bates, 15 R. I. 342; Jackson v. Meek, 87 Tenn. 69. 1 Farnswortli v. Dewey, 91 N. Y. 308; Hirshfeld v. Fitzgerald, 157 N. Y. 166; Runner v. Dwiggins, 147 Ind. 238; Lane v. Morris, 8 Ga. 468, 476; Bristol v. Sandford, 12 Blatchf. 341; Jacobson v. Allen, 20 Blatchf. 525; S. C, 12 Fed. Rep. 454; Wincock v. Turpin, 96 111. 135; Liberty Female College A.ss'n v. Watkins, 70 Mo. 13; Steinke v. Loofbowrow, 17 Ut. 252. Cf. Parker o. Bank, 53 S. C. 583; State v. Union Stockyards Bank, 103 Iowa, 549; Zang v. Wyant, 25 Col. 551; Colton v. Moyer, 90 Md. 711. Compare the two cases of Harris v. First Parish, 23 Pick. 112, and Baker v. Atlas Bank, 9 Mete. 182. A judgment creditor of the cor- poration may, in the same action, join a claim to compel the payment of stock subscriptions and a claim to enforce the individual statutory liability. Warner v. Callender, 20 Ohio St. 190. 2 Wright v. McCormack, 17 Ohio St. 86; Umsted v. Buskirk, ib. 113; Dutcher v. Maine Nat. B'k, 12 Blatchf. 435. 3 Blair v. Gray, 104 U. S. 769. 717