Where an action at law upon the statutory liability can be brought, it may be under a statute which does not require the exhausting of the bank's assets. In such case the remedy consists in suing the individual stockholder upon his contract. Such was the old method of enforcing the liability for a state bank's circulating notes.1 But where the right to sue the stockholder is held to be dependent upon the bank's lack of assets, that fact necessarily must appear by allegation and proof. The judgment at law and return of nulla bona is sufficient, nor can that judgment be disputed.2 If the liability is several, and it would seem to be such in most cases where an action at law lies, but one stockholder can be sued.3 By the action the creditor obtains a priority, which the stockholder sued cannot avoid by payment to any other creditor.4 No set-off lies on behalf of the stockholder for a debt owing to him by the corporation,5 for the creditor sues in his own right, not by right of the corporation. The question of contribution among the stockholders cannot of course be litigated. The method of recovery, where the liability is in proportion to the stock or some equivalent expression is used, would require allegation and proof as to the exhaustion of the bank's assets, where that is necessary, proof of the whole liability of the stock and of the amount of the stockholder's holding, from which his liability is a mere matter of computation. But if the liability was held to be an equal and ratable one, proof would be required of the total debts, and the proportion of the creditor's debt thereto would be a matter of inference. It is believed, however, that in this latter case an action at law never lies except in the case of national banks, where the amount of the receiver's claim against each stockholder is determined by the assessment of the comptroller of the currency,6 or unless the suit is upon an assessment made under an order of a court.

7McCarthay v. Lavasche, 89 I11. 270.

8 Earnes v. Doris, 102 111. 350; Tunesma v. Schuttler, 114 111. 156.

9 Casey v. Galli, 94 U. S. 673. But a suit in equity lies now by the statute. Irons v. Manufacturers' Nat Bank, 27 Fed. R 591; Richmond v. Irons, 121 U. S. 27. The action at law remains and both remedies exist

10 Pollard v. Bailey, 20 Wall 520; Terry v. Tubman, 92 U. S 156; Cuy-kendall v. Miles, 10 Fed. R 342; Terry v. Martin, 10 S. C. 263; Terry v. Little, 101 U. S. 216; Allen v.

Walsh, 25 Minn 543. Alabama, Arkansas, Michigan, Massachusetts, New Jersey, Ohio, Rhode Island and Wisconsin seem to hold this rule, though not all as to bank statutes. 11 Carroll v. Green, 92 U. S. 509; Mills v. Scott, 99 U. S. 25, under laws of two different states.

1 Adkins v. Thornton, 19 Ga. 325. See also on this subject, where bonds and notes were given by stockholders to secure circulation, Duncan v. Biscoe, 7 Ark. 175; Van Steenwyck v. Sackett, 17 Wis. 645;. Rusk v. Sackett, 28 Wis. 400.

2 Marsh v. Burroughs, 1 Woods, 463. See next section, note 4.

3 Perry v. Turner, 55 Mo. 418; Terry v. Little, 101 U. S. 216.

4 Thebus v. Smiley, 110 111. 316; Cole v. Butler, 43 Me. 401; Jones v. Wiltberger, 42 Ga. 575; Bates v. Lewis, 3 Ohio St. 459. But see City of Chicago v. Hall, 103 111. 342; Savings Asso. v. Kellogg, 63 Ma 540.

5 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. The same rule would apply in equity as at law. But Wheeler v. Millar, 90 N. Y. 353, is contra. And see Boyd v. Hall, 56 Ga, 563.

6 See Sec. 70, infra; Pickering v. Hastings, 76 N. W. R 587; Gager v. Bank of Edgerton, 77 N. W. R. 920. But see Boyd v. Hall 56 Ga. 563.