This subject is involved in the greatest confusion. It seems extraordinary that courts can reach such totally different conclusions about a simple matter. In the first place, it is conceded that if the statute gives a special remedy in the particular forum where the suit is brought, that remedy must be followed. Since no one has a vested right in a mere remedy, the remedy may be changed, but not so as to deprive the complainant of all remedy.1 But the statutes are frequently silent as to the remedy, and the courts are left to fix some rule that will be followed. If, as already pointed out, this liability is one of quasi-contract or contract, there ought to be no doubt that an action at law would lie upon it. There might difficulty arise in the matter of proof, but that ought not to affect the legal right. It is perfectly consistent with the foregoing proposition that a suit in equity would also lie for the purpose of avoiding a multiplicity of actions.2 It is also perfectly consistent with this proposition that the action at law would not lie until the party had exhausted his remedy against the corporation. The advantage for the action at law is that thereby the first creditor suing, or at any rate first getting a judgment, obtains a priority, of which he cannot be deprived by the person owing the liability,3 and he is not compelled to share the fruits of his diligence with any other creditor, as he would be compelled in equity. In the next place the creditor can single out one stockholder who is most conveniently situated to be sued, and sue him alone without being troubled with the delay or the expense of services upon numerous parties defendant. Again, the stockholder in such an action could not set off any debt4 which the corporation owed to him, as he might do if sued in equity.5 Nor if the suit is at law could it be treated as a creditor's bill and the judgment at law required to be that of the forum where the equitable remedy is sought.6 But when the decisions are consulted they speak "a various language." It was originally held in one court that the creditor had a remedy at law alone,7 but this court has receded from this position.8 So in the case of national banks it was held that the receiver's suit for an assessment levied by the comptroller was at law.9 But courts applying the analogy of a creditor's bill, the analogy consisting of the fact that the assets of the corporation must first be exhausted, have held that where the stockholders were held liable in proportion to the amount of their stock the remedy is in equity and not at law.10 -But in reason the better rule is that where the liability is to the amount of or in proportion to the stock, the creditor may sue either at law or in equity,11 unless, of course, he is also a stockholder, when he would be compelled to sue in equity, as he would be himself liable for part of his own claim.

3 Bond v. Appleton, 8 Mass. 472.

4 Cleveland v. Burnham, 55 Wis. 598; Middleton Bank v. Magill, 5 Conn. 28.

5 As under national bank act. See Sec. 70, post.

6Curtiss v. Harlow, 12 Met 3; Holyoke Bank v. Burnham, 11 Cush. 183; Brown v. Hitchcock, 36 Ohio St 667; Sayles v. Bates, 15 R I. 342; Freeland v. McCullough, 1 Denio, 414; Root v. Sinnock, 120 I11. 350. The transferror is sometimes made surety for the transferee. Marr v. Bank of West Tennessee, 4 Lea, 578.

7 See 3 Am. St. R. 860 et seq., in note.

8 See Sec. Sec. 46-53, ante.

9 See Matthews v. Albert, 24 Md. 527; Wheeler v. Millar, 90 N. Y. 353

1 Thompson on Liability of Stockholders, Sec. 73; Hawthorne v. Calef, 2 Wall. 10. All matters of remedy are governed by the law of the forum where suit is brought. Special remedies given where the right accrued, but not where remedy is sought, will not be applied in the latter forutn. Lowry v. Inman, 46 N. Y. 119; Christensen v. Eno, 106 N. Y. 97.

2 Parker v. Carolina Sav. Bank, 31 S. E. R. 673 (S. C).

3 Thebus v. Smiley, 110 III 316; Cole v. Butler, 43 Me. 401; Jones v. Wiltberger, 42 Ga. 575; Bates v. Lewis, 3 Ohio St. 459. Compare City of Chicago v. Hall, 103 111. 342; Savings Ass'n v. Kellogg, 63 Mo. 540.

4 In re Empire City Bank, 18 N. Y. 199; Buchanan v. Meisser, 105 I11 638; Burnap v. Harkins Engine Co., 127 Mass. 586; Paine v. Stewart, 33 Conn. 516. But compare Gauch v.

Harrison, 12 Bradw. 457, semble, contra, and Boyd v. Hall, 56 Ga. 563.

5 Welles v. Stout, 38 Fed. R 807. But this is not the general rule. See Hobart v. Gould, 8 Fed. R. 57; Sowles v. Witters, 39 Fed. R 403. Except where the claim of the stockholder is good as against the creditors in general. But see Wheeler v. Millar, 90 N. Y. 353.

6 Patterson v. Lynde, 112 I11. 196, which case is clearly wrong upon this point.