Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/753

 CHAP. XIII.] SHAREHOLDERS AND CREDITORS. [§ 737. § 737. Where the suit against the shareholder is brought to enforce his statutory liability, and a judgment Effectof on the claim of the creditor has been obtained judgment against the corporation, it is held in some cases that corpora- the shareholder may contest the suit as being based tlon ' on a debt not due from the corporation, thus virtually having the whole matter retried, and compelling the creditor to prove again his original right to recover against the corporation. 1 But the weight of authority is, perhaps, in favor of the view that judgment against the corporation can, in a suit by cred- itors to enforce the statutory liability of shareholders, be im- peached by a shareholder only on grounds of collusion or lack of jurisdiction in the court rendering it. 2 This view seems at least well established when the liability sought to be enforced is not statutory, but merely that attaching to shareholders on the bills, 1 ' the liability of the share- holders arises when the bank refuses to redeem or becomes notoriously insolvent, and from that time the statute of limitations runs in favor of the shareholders. Terry v. Tub- man, 92 U. S. 156. See Godfrey v. Terry, 97 U. S. 171; Long v. Bank of Yanceyville, 90 N. C. 405. When, however, the statute re- quires suit within a certain time to be begun against the shareholder, that time is not extended by the recovery of judgment against the corporation. Stilphen ». Ware, 45 Cal. 110. This liability is upon an implied not au express contract within the meaning of a statute of limitations. McDonald v. Thomp- son, 184 U. S. 71. 1 Union Bank v. Wando Mfg., etc., Co., 17 S. C. 339; Strong v. Wheaton, 38 Barb. 616; MacMahon v. Macy, 51 N. Y. 155; Miller c. White, 50 N. Y. 137; Whitman v. Cox, 26 Me. 335; Heard v. Sibley, 52 Ga. 310. See Mer- rill ». Shaw, 38 Me. 267; Trippe v. Huncheon, 82 Ind. 307; Neilson v. Crawford, 52 Cal. 248. Directly op posed to this view are Holyoke Bank v. Goodman Paper Mfg. Co., 9 Cush. 576; Farnum v. Ballard Vale Ma- chine Shop, 12 Cush. 507; Robbins v. Justices, 12 Gray, 225, which hold that when a shareholder, whom cred- itors intend to hold individually, is required to be summoned in the suit against the corporation, he cannot dispute the merits of the claim against it. 2 Milliken u. Whitehouse, 49 Me. 527 ; Barron v. Paine, 83 Me. 312; Wilson v. Pittsburg, etc., Coal Co., 43 Pa. St. 424; Donworth v. Cool- baugh, 5 Iowa, 300; Slee v. Bloom, 20 Johns. (N. Y.)669; Lowry v. Par- sons, 52 Ga. 357; Oswald v. Times Co., 65 Minn. 249; Holland v. Iron Co., ib. 324; Nichols v. Stevens, 123 Mo. 96; Ball v. Reese, 58 Kas. 614. See Black v. Womar, 100 111. 328; Manufactur- ing Co. v. Bradley, 105 U. S. 175; Singer ». Given, 61 Iowa, 93. In such case judgment against the corpora- tion is prima facie evidence against the shareholder according to Grund v. Tucker, 5 Kans. 70; Schaeffer v. Missouri Home Ins. Co., 46 Mo. 248; Hoagland v. Bell, 36 Barb. 57. 733