Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/835

 CHAP. XVII.] LEGAL RELATIONS AMONG CREDITORS. [§ 826. within the period fixed by the statute, he acquires a right to recover against the stockholder to the amount of his stock, with which no creditor subsequently moving can rightfully interfere, and any payment made to such subsequently moving creditor by such stockholder must be regarded as a payment in his own wrong." * The case, however, in which these re- marks occur, arose under the construction of a particular statute, and consequently is to be applied with caution. 2 § 826. When an action has been instituted by part of the creditors of an insolvent corporation for the benefit of all the creditors, against the shareholders to enforce the (limited) statutory liability of the latter, no creditor can acquire priority, or institute a separate suit for the enforcement of such liability on his own behalf. 3 1 Cole v. Butler, 43 Me. 401, 404, per May, J., approved in Iugalls v. Cole, 47 Me. 530, 541. Accord, Jones v. Wiltberger, 42 Ga. 575; The- bus v. Smiley, 110 111. 316. 2 Semble contra, Pfohl v. Simpson, 74 N. Y. 137; Donnelly o. Mulhall, 12 Mo. App. 139. In Illinois a cred- itor obtains a prior lien only through a final judgment in his favor. Chi- cago v. Hall, 103 111. 342; but see Thebus v. Smiley, 110 111. 316. Com- pare State SaviDgs Ass'n v. Kellogg, 63 Mo. 540. 3 Wright v. McCormack, 17 Ohio St. 86; Pfohl v. Simpson, 74 N. Y. 137. See Pollard o. Bailey, 20 Wall. 520. Also, specially, §§ 725, 728, 704-706. 815