The unpaid stock subscription belongs to the corporation, and the method of obtaining the subscription is for the proper authority in the corporation to make a call. If the stockholder does not pay he is suable at law upon his contract; the form of the action, since the contract is a specialty, is either debt or covenant at common law. But if the corporation will not make the call, a creditor's bill lies in favor of the creditor who has exhausted his remedy against the corporation,1 or where the pursuit of that remedy would be useless.2 Mandamus also lies in some jurisdictions, and on principle wherever the common law is in force,.to compel the proper authorities of the corporation to make a call.3 But this remedy is cumbrous and little used, and in some jurisdictions is practically denied.4 Where the unpaid subscription is due by call and unpaid, the creditor may garnish the corporation,5 and in one state even when not due,6 but this ruling is anomalous.7 But the remedy in equity is complete, and the court, where the assets are insufficient, will make a call for the unpaid subscription and may compel discovery from the stockholders. The judgment against the corporation is conclusive upon the stockholders. Since the unpaid subscriptions are an asset of the corporation, they pass to the assignee or receiver, who may sue upon them in equity, joining all the stockholders or some of them.8 After a receiver has been appointed, a repeal of the statute under which he was appointed will not prevent his prosecution of the suit.9 But where the remedy is pursued by the creditor, it is sometimes desirable that he proceed at law on account of his chance for a priority. In such case the law of the particular jurisdiction must settle the remedy. "Where the statute enforces the liability for unpaid subscriptions and makes the stockholder liable therefor, it would seem on principle that the liability created was a legal liability and no longer cognizable solely in equity. So one case has held,10 but other courts have decided otherwise.11

11 Bates v. Lewis, 8 Ohio St. 459. The payment was after suit brought.

12 In re Reciprocity Bank, 22 N. Y. 9. Contra, Robinson v. Bank of Darien, 18 Ga. 63. This latter bank was well named. See 10 Macau-lay's England, 185.

13Cowles v. Cromwell, 25 Barb. 413.

14 See Sec. Sec. 49, 50, ante.

15 Robinson v. Bank of Darien, 18 Ga. 65. If it is a contract this case is wrong. See Hawthorne v. Calef, 2 Wall 10, which holds the double liability to be an unrepeatable contract. But the original stock subscription must be a contract between all the stockholders. It is mere folly to say the legislature can vary private contracts.

1 Marr v. Bank of West Tennessee, 4 Lea, 578; Harper v. CarrolL 69 N. W. R. 610 (Minn.).

1 See next section.

1 See 3 Am. St. R. 810 et seq., in note

2 See last citation.

3 Patterson v. Lynde, 112 I11 196, for foreign corporation.

4 Ward v. Griswold Co., 16 Conn. 593; Dalton R R. Co. v. McDaniel, 56 Ga. 191.

5See 3 Am. St. R. 807, in note; but see note 7, infra.

6 Robertson v. Noeninger, 20 I11 App.227. See Gaschv. World's Fair Excursion and Transp. Co., 59 I11 App. 391.

7 Lane's Appeal, 105 Pa. 49.

8 Robinson v. Carey, 8 Ga. 537. He may sue at law if a call has been made.

9 Farmers' Bank v. Jenks, 7 Mek 592.

Sec. 61a. Other Questions As To This Liability

The right of the creditor to proceed by bill in equity accrues, of course, when he has exhausted his remedy at law. But where the bank has refused payment, or has become insolvent, the right accrues at once.1 In a suit by a creditor in equity, the corporation is a necessary party to the action, since the unpaid subscription belongs to it.2 When the remedy against the bank is barred, it is also barred against the stockholder,3 and the statute begins to run from the accrual of the liability.4 When the bank's remedy against the stockholder is barred, the creditor is also barred from proceeding against him.