equity. And if a stockholder is also a creditor to the extent of his liability, another creditor cannot maintain an action at law against him. As a creditor, he has an interest in the fund sued for, which can only be determined by an accounting, and the remedy against him is therefore in equity.79 An action at law cannot be maintained by a creditor against a stockholder, even when the stockholders are made jointly and severally liable for all corporate debts and contracts, if the statute expressly prescribes some other remedy, as attachment, or execution against a stockholder on a judgment against a corporation, or bill in equity.80 And after a court of equity has acquired jurisdiction in a creditors' suit to enforce the statutory liability of stockholders, and for other relief, a creditor cannot sue a stockholder at law, or in a separate suit in equity, although he might have done so if the suit in equity had not been instituted; nor can a separate suit in equity be brought.81 And when a general creditors' suit is brought to enforce the statutory liability of stockholders, and all equities are adjusted therein, and a judgment rendered on the merits, the question is res adjudicata, and another such suit cannot be brought by other creditors.82 Whether the remedy of a receiver of a national bank to collect an assessment levied on its stockholders by the comptroller of the currency on account of their statutory liability is by an action at law or a suit in equity,83 and the remedies for enforcing the liability of 78 See § 4211, supra. 79 Mathez v. Neidig, 72 N. Y. 100; Garrison v. Howe, 17 N. Y. 458. And see Wheeler v. Millar, 90 N. Y. 353; Agate v. Sands, 73 N. Y. 620. See also 4246, infra. 80 See § 4217, supra. 81 Tunesma v. Schuttler, 114 M. 156, 28 N. E. 605; Barrick v. Gifford, 47 Ohio St. 180, 21 Am. St. Rep. 798, 24 N. E. 259; Wright v. McCormack, 17 Ohio St. 86. Creditors may be enjoined from instituting separate suits or actions under such circumstances. Pfohl V. Simpson, 74 N. Y. 137; Mathez v. Neidig, 72 N. Y. 100; Bagley & Sewall Co. v. Ehrlicher, 8 N. Y. App. Div. 581, 40 N. Y. Supp. 922; American Grocery Co. v. Flint, 5 N. Y. App. Div. 263, 39 N. Y. Supp. 153. In North Dakota the statute provides that the court may by injunction restrain all proceedings by any other creditor, and require all creditors to exhibit their claims and become parties to the action. Rev. Codes 1899, § 5761. But it is an abuse of discretion to restrain a secured creditor from foreclosing his lien where it appears that general creditors can in no event derive any benefit from the proceeds of the property covered by the lien, especially where no receiver is appointed to preserve such property. Marshall-Wells Hardware Co. v. New Era Coal Co., 13 N. D. 396, 100 N. W. 1084. 82 Foster v. Posson, 105 Wis. 99, 81 N. W. 123. 83 See 4225, infra. stockholders in jurisdictions other than that of the corporation's domicile,84 will be considered in subsequent sections. When an action at law may be maintained by a creditor against a stockholder, and the liability is contractual in its nature, the creditor may maintain an action of assumpsit,86 or, if the amount to be recovered is a sum certain, he may maintain an action of debt.87 § 4219. Concurrent remedies at law and in equity. The fact that the liability imposed by a statute upon stockholders for corporate debts is of such a nature that the creditors may maintain actions at law against them does not necessarily exclude the remedy in equity. In such a case, unless prevented by the statute, creditors may sue either at law or in equity, according to the nature of the relief desired or made necessary by the circumstances of the case. And the right to sue either at law or in equity is sometimes expressly given by the statute.88 In some jurisdictions a court of equity is held to have 84 See § 4248 et seq., infra. 86 National Bank of Chester V. Zinser, 55 Ill. App. 510. 87 Love v. Pusey & Jones Co., 3 Pennew. (Del.) 577, 52 Atl. 542; Simonson v. Spencer, 15 Wend. (N. Y.) 548. In Love v. Pusey & Jones Co., 3 Pennew. (Del.) 577, 52 Atl. 542, debt was held to be a proper form of action in which to enforce the liability of a Delaware stockholder in a Kansas corporation. Debt will not lie, however, if the amount of the stockholder's liability is uncertain. Bank of Circleville v. Iglehart, 6 McLean 508, Fed. Cas. No. 860. 88 United States. Marine & River Phosphate Min. & Mfg. Co. v. Bradley, 105 U. S. 175, 26 L. Ed. 1034; New York Life Ins. Co. v. Beard, 80 Fed. 66. Compare, however, Morley v. Thayer, 3 Fed. 737. Delaware. Rev. Code 1915, ¶ 1936, expressly provides that the creditors may sue either at law or in equity. John W. Cooney Co. v. Arlington Hotel Co., 101 Atl. 879, Idaho. The statute provides that the liability of stockholders of banks may be enforced by an action at law or a suit in equity by any such bank in process of liquidation, or by any receiver or other person succeeding to the legal rights of such bank. Rev. Codes, § 2979. McTamany v. Day, 23 Idaho 95, 128 Pac. 563. Illinois. Golden v. Cervenka, 278 Ill. 409, 116 N. E. 273; Queenan v. Palmer, 117 Ill. 619, 7 N. E. 613; Eames v. Doris, 102 Ill. 350; Wincock v. Turpin, 96 Ill. 135; Culver v. Third Nat. Bank of Chicago, 64 Ill. 528; Cohen v. Toy Gun Mfg. Co., 172 Ill. App. 330; American Spirits Mfg. Co. V. Eldridge, 209 Mass. 590, 95 N. E. 942. A bill in equity may be maintained by creditors of an insolvent bank, in behalf of themselves and other creditors, against all the stockholders to enforce the constitutional personal liability of the stockholders, to enjoin the prosecution of suits by individual creditors against individual stockholders, to have an account taken of all the liabilities of the bank, to establish the amount for which the various stockholders are li jurisdiction of a suit by or on behalf of all of the creditors against all of the stockholders under such circumstances on the ground of pre able, and to have the amount of debts proved apportioned among the stockholders. Golden v. Cervenka, 278 Ill. 409, 116 N. E. 273. The liability of stockholders in manufacturing corporations under Act of 1857, § 9, was enforceable only in equity. Rounds v. McCormick, 114 Ill. 252, 29 N. E. 684; Harper v. Union Mfg. Co., 100 Ill. 225. The liability of a stockholder in a bank under the Act of June 6, 1887, cannot be enforced by a creditor in an action at law against a stockholder. Boor v. Tolman, 113 Ill. App. 322. Under the Act of April 12, 1872, relating to corporations for pecuniary profit, the only remedy was in equity. Richardson v. Akin, 87 Ill. 138. In Tunesma v. Schuttler, 114 Ill. 156, 28 N. E. 605, it was held that equity had jurisdiction of a suit to enforce a liability imposed by a special charter, where there were special grounds for granting equitable relief, although the liability was also enforceable at law. Kentucky. Bank of United States v. Dallam, 4 Dana 574. Maryland. Emmert v. Smith, 40 Md. 123; Norris v. Wrenschall, 34 Md. 492; Norris v. Johnson, 34 Md. 485. Minnesota. Harper v. Carroll, 62 Minn. 152, 64 N. W. 145. Mississippi. Vick v. Lane, Hazlehurst & Co., 56 Miss. 681. Missouri. Perry v. Turner, 55 Mo. 418; Hodgson v. Cheever, 8 Mo. App. 318. A creditor seeking to enforce the statutory liability of stockholders to the amount unpaid on their stock may sue at law, or in equity, or may proceed by motion for execution. These remedies are concurrent. Shields v. Hobart, 172 Mo. 491, 95 Am. St. Rep. 529, 72 S. W. 669; Steam StoneCutter Co. v. Scott, 157 Mo. 520, 57 S. W. 1076; Rood v. Crocus Hill Min. Co. (Mo. App.), 139 S. W. 222; State v. Goodrich, 138 Mo. App. 283, 120 S. W. 646; Lamont v. Lamont Crys talized Egg Co., 109 Mo. App. 46, 81 S. W. 1269. New York. Pfohl v. Simpson, 74 N. Y. 137; Griffith v. Mangan, 73 N. Y. 611; Mathez v. Neidig, 72 N. Y. 100; Weeks v. Love, 50 N. Y. 568; Garrison v. Howe, 17 N. Y. 458; Bogardus v. Rosendale Mfg. Co., 7 N. Y. 147; Hallett v. Metropolitan Messenger Co., 69 App. Div. 258, 74 N. Y. Supp. 639, modifying judgment 35 Misc. 659, 72 N. Y. Supp. 370; Briggs v. Penniman, Cow. 387, 18 Am. Dec. 454; Van Hook v. Whitlock, 3 Paige 409; Masters v. Rossie Lead Min. Co., 2 Sandf. Ch. 301; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473. See also Warth v. Moore Blind Stitcher & Overseamer Co., 146 App. Div. 28, 130 N. Y. Supp. 748, aff'd 207 N. Y. 673, 100 N. E. 1135. A creditor may suc either at law or in equity to enforce the individual liability imposed upon stockholders of safe deposit companies by 303 of the Banking Law (Consol. Laws 1909, c. 2). Mosler Safe Co. v. Guardian Trust Co., 208 N. Y. 524, 101 N. E. 786, modifying and aff'g judgment 153 App. Div. 117, 138 N. Y. Supp. 298. As to the remedies available to the superintendent of banks to enforce the individual liability of stockholders in a bank, see § 4218, supra. West Virginia. Each creditor is not obliged to sue separately for the amount of his loss but the liability may be enforced in a creditors' suit against an insolvent bank, and the amounts so realized distributed with the other assets of the bank. Dunn v. Bank of Union, 74 W. Va. 594, L. R. A. 1915 B 168, 82 S. E. 758; Bene venting a multiplicity of actions at law.89 But in other jurisdictions it is held that a court of equity will not entertain jurisdiction of a bill by several creditors to enforce the liability of several stockholders solely on the ground of preventing a multiplicity of actions, where each of the creditors has a separate and independent claim against each of the stockholders which he may enforce in separate actions at law.90 So it has been held that an assessment on stock for the full amount of the liability can only be enforced against stockholders in a federal court in another state by separate actions at law against each stockholder. Equity has no jurisdiction of a single suit against a number of stockholders based on such an assessment on the sole ground that a multitude of actions at law will thereby be avoided, since there is no common relation or common interest on the part of the defendants or any common question to serve as the basis of the joinder.91 Nor can such a suit be maintained on the ground that it is ancillary or auxiliary to the decree of the court levying the assessment and in aid of its enforcement, since such decree cannot be regarded as a judgment against nonresident stockholders who did not appear and were not served, nor can the action to enforce their liability be regarded as one to enforce such decree.92 After a court of equity has acquired jurisdiction in a creditors' suit dum v. First Citizens' Bank, 72 W. Va. 124, 78 S. E. 656. Where stockholders in a foreign corporation sue to enjoin its receiver from prosecuting actions at law previously commenced by him against them to enforce their statutory liability, he cannot enforce such liability by a cross-bill in the injunction suit, but will be left to the remedy at law to which he at first elected to resort. Francis v. Hazlett, 192 Mass. 137, 116 Am. St. Rep. 230, 78 N. E. 405. 89 Queenan v. Palmer, 117 Ill. 619, 7 N. E. 613. In Pfohl v. Simpson, 74 N. Y. 137, although the statute made the stockholders of a corporation "severally" liable to creditors, it was held that, in order to prevent a multiplicity of suits, a court of equity had jurisdiction of a suit by a creditor of the corporation on behalf of himself and other creditors, against the stockhold ers and an assignee in bankruptcy of the corporation, and such creditors as had brought suits at law against stockholders, to collect from the stockholders the amounts due from them under the statute, and distribute the same among the creditors, and to restrain the prosecution of the actions at law. See also Bagley & Sewall Co. v. Ehrlicher, 8 N. Y. App. Div. 581, 40 N. Y. Supp. 922; American Grocery Co. v. Flint, 5 N. Y. App. Div. 263, 39 N. Y. Supp. 153. 90 Miller v. Willett, 71 N. J. Eq. 741, 65 Atl. 981, aff'g 70 N. J. Eq. 396, 62 Atl. 178. 91 Hale v. Allison, 188 U. S. 56, 47 L. Ed. 380, aff'g judgment 106 Fed. 258, 102 Fed. 790. 92 Hale v. Allison, 188 U. S. 56, 47 L. Ed. 380, aff'g judgment 106 Fed. 258, 102 Fed. 790. to enforce the liability, a creditor cannot sue a stockholder at law, although he might otherwise have done so.93 § 4220. Bill for discovery. In a proper case, unless such remedy is excluded by statute, a creditor may maintain a bill in equity for discovery, for the purpose of ascertaining the names of stockholders subject to statutory liability for corporate debts, and the amount of their stock, or he may include a prayer for such relief in a bill in equity for the purpose of enforcing such liability, and afterwards amend by making the other stockholders parties.94 And it has been held that a creditor may maintain such a bill in a state other than that of the corporation's domicile, even though the liability could not be enforced there.95 § 4221. Execution against stockholders. Of course, unless there is some provision therefor in the statute, the individual liability of stockholders for corporate debts cannot be enforced by issuing against them an execution on a judgment against the corporation, and levying upon their individual property.96 In some jurisdictions, however, such a remedy is, or has been, expressly provided by statute, either for the purpose of enforcing a liability to the extent of the unpaid balance due on their stock, or an additional liability. The mode of procedure. in such cases, and the conditions under which the execution may be issued, depend upon the provisions of the particular statute, which must be strictly followed.97 93 See § 4218, supra. 94 Middletown Bank v. Russ, 3 Conn. 135, 8 Am. Dec. 164; Post v. Toledo, C. & St. L. R. Co., 144 Mass. 341, 59 Am. Rep. 86, 11 N. E. 540; Bogardus v. Rosendale Mfg. Co., 7 N. Y. 147. See also Castleman v. Holmes, 4 J. J. Marsh. (Ky.) 1; Brewer v. Michigan Salt Ass'n, 58 Mich. 351, 25 N. W. 274; Morgan v. New York & A. R. Co., 10 Paige (N. Y.) 290, 40 Am. Dec. 244. After an assessment has been ordered on unpaid stock by the court upon corporate insolvency, a bill of discovery may be maintained by the receiver against a broker who bought shares for an undisclosed principal, and at the request of the principal had them transferred to a third party to cover up the identity of the real 96 See Southmayd v. Russ, 3 Conn. 52. The bankruptcy court has no authority to order that execution issue against stockholders for the amount of an assessment, but such an assessment can be collected only by an action by the trustee. In re Remington Automobile & Motor Co., 153 Fed. 345, modifying judgment 139 Fed. 766. 97 Florida. Knight & Wall Co. v. Tampa Sand Lime Brick Co., 55 Fla. 728, 46 So. 285; Hood v. French, 37 Fla. 117, 19 So. 165; Coe v. Armour |