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being regarded as equitably liable only for the balance, he may do this in any State in which he may be sued.1 And if any special form of proceeding is required by the law of the State of charter, as for instance, that a judgment should first be obtained against the corporation before the individual can be sued, this procedure must be followed.2 I.
A person who has subscribed for stock, and has agreed to pay for it, but has not done so, is evidently liable to the company for the amount he has subscribed, and this liability arises entirely from contract. Primarily a creditor of the corporation has nothing to do with it. The corporation must call for the payment of the subscription, and must then enforce its call by getting in the amount from the stockholders. This liability to respond to calls for unpaid subscription to the capital stock, is like any other debt due to the cor poration. Upon this obligation suit may be brought in any State by the corporation,3 or by its representative, as for instance its re ceiver4 or assignee.5 The amount of the call may be fixed by the directors, or if a receiver has been appointed it may be fixed by the ap pointing court; and suit for the amount may then be brought in any State.6 The effect 1 Mechanics' Sav. Bank -•. Fidelity Ins. Co., 87 Fed. 113; Broadway Nat. Bank v. Baker, 176 Mass. 294, 57 N. E. 603; Sargent т. Stetson, iSi Mass. 371, 63 N. F.. 929; Ball -•. Anderson, 196 Pa. 86, 46 All. 366. 2 Fourth Nat. Bank -'. Francklyn, 120 U. S. 747. 3 Mandel v. Swan Land & Cattle Co., 154 Ill. 177, 40 N. E. 462; Sigua Iron Co. v. Brown, 171 N. Y. 488, 64 N. E. 194. 4 Mann ». Cooke, 20 Conn. 178; Fish v. Smith, 73 Conn. 377,47 All. 711; Daytcn r. Borst, 31 N. Y. 435. In Vermont the foreign receiver is not allowed to sue in his own name. Murtey v. Allen, 71 Vt. 377, 45 All. 752; Sparks v. Estabrooks, 72 Vt. 101, 47 Atl. 394. 5 Stoddard v. Lum, 159 N. Y. 265, 53 N. E. u 08. 6 Hawkins v. Glenn, 131 U. S. 319; Lehman v, Glenn, 87 Ala. 618; Glenn ». Williams, 60 Md. 93; Mut. Fire Ins. Co. v. Phoenix Furniture Co., 108 Mich. 170, 66 N. W. 1095; Commonwealth Mut. Fire Ins. Co. v. Hayden, 60 Neb. 636, 83 N. W. <)92; Parker v. Stoughton Mill Co., 91 Wis. 174, 64 N. W. 751
of this order of assessment is to fix the amount which any stockholder liable under his contract of subscription should pay, and to authorize the receiver to bring suits against stockholders for the same, but not to determine whether any particular stock holder is liable for anything; and one who is sued as stockholder may therefore interpose any personal defence, as for instance, that he is not a stockholder, or that the statute of limitations has run in his favor;7 or (where such defence is allowed in a similar action in the State of charter) that the call was for an illegal purpose and ¡dira vires* But while a creditor has no direct right to come upon the stockholder, he may take ad vantage of any method of reaching him open to him in the State where he sues. If the claim has not been enforced by the corpora tion it is an asset, and if such remedy is per mitted, a creditor may reach it either by gar nishment or by a creditors' bill. The sub scribing stockholder should be treated in the same way as any other debtor of the com pany. If the law of the forum permits the garnishment of such a claim, the creditor may reach it in that way.9 If a creditor can reach the claim only by a creditors' bill, he must thus proceed, making the corporation and all the stockholders parties.10 Where the stock was taken without any agreement to pay for it (as for instance, if it were in exchange for property of small value, or were given as a bonus to purchasers of bonds) there is no agreement to be enforced, and in the absence of a. statute no creditor could claim a right against the stockholder. 'Glenn v. Marbury, 145 U. 8.499, 506; Great West ern Tel. Co. ». Purdy, 162 U. S. 329. 'Bank of China ». Morse, 168 N. Y. 458, 61 N. E. 774'/я re Queensland Mercantile and Agency Co. [1891] i Ch. 536. 10 Patterson v. Lynde, 112 Ill. 196; Tuttle i: Bank of Republic, 161 Ill. 497, 44 N. E. 984; Rule v. Omega S. & G. Co., 64 Minn. 326, 67 N. W. 60; Aultman's Ap peal, 98 Pa. 505.
