Where the rule is held that the suit to enforce the stockholder's liability must be brought in equity, or wherever such a suit is brought on grounds of convenience, although an action at law lies, the suit should be brought on behalf of all the creditors similarly situated,1 and against all the stockholders liable,2 unless certain of them cannot be made parties because beyond the court's jurisdiction.3 Where it is necessary to show, as a condition precedent to maintaining the suit, that the bank has no available assets, the recovery of a judgment and a return of nulla hona must appear; but facts that excuse such a proceeding may be alleged and proven, as that the bank is insolvent or in the hands of a receiver, or any other facts that render such a proceeding useless.4 The suit must necessarily be brought by the creditors unless the statute permits some one else to sue.5 There can be no set-off pleaded in favor of a stockholder on account of claims against the bank,8 but there are exceptions. One is the exception under a peculiar statute in New York, where the statutory liability arises upon a failure to pay in the whole capital,7 and another exception is that if the stockholder's claim is of such a nature that he is entitled to payment before the creditors, his claim may be set off.8 The nature of the action provides for a contribution among the stockholders, since all must be sued. The decree in equity must be several as against the different stockholders, unless, of course, the liability is made joint, when a decree against all for the whole amount would be good. Such a case is impossible where the liability is in proportion to the amount of stock held by each stockholder.9 In an equitable proceeding it is a matter of some doubt whether the corporation ought to be made a party or not, either through itself or its receiver or assignee. Where the right to sue belongs to the creditors and is against the stockholders, it would seem to be reasonably plain that the corporation is not concerned.10 But owing to statutes which give the receiver the right to sue, and other statutes or rulings which require the assets of the corporation to be exhausted, it is rarely safe to omit making the corporation or its representative a party to a suit in equity. The judgment against the corporation being conclusive,11 such a course can work no injury; and where no execution has been issued on the judgment, or where no judgment has been obtained, the presence of the corporation as a party is as necessary to complete justice as the presence of its representative is necessary where the right of action is given to him.

1 Irons v. Manuf. Nat. Bank, 27 Fed. R 591.

2 Terry v. Martin, 10 Rich. 263; Coleman v. White, 14 Wis. 700.

3 Terry v. Martin, supra; Kennedy v. Gibson, 8 Wall. 498.

4 Hodgson v. Cheever, 8 Mo. App. 318. There is such a confusion between courts as to whether this is necessary without a statute that no general rule can be found. See 3 Am. St. R. 851, in note, and Sec. 63, ante.

5 See cases cited in note 1, Sec. 65, supra. And see Howarth v. Ell-war ger, 86 Fed. R 54; Watterson v. Masterson, 15 Wash. 511; State v. Union Stock Yards Bank, 70 N. W. R 752. But even if the suit is given to the receiver or a particular officer it may be brought by a creditor (Worth v. Piedmont Bank, 28 S. E. R 488), if the officer or receiver will not sue (Anderson v. Seymour, 73 N. W. R 171), without applying to the corporation. Foster v. Bank of Abingdon, 88 Fed. R. 604. This case decides that creditors suing for negligent injuries to bank by the officers are not within the ninety-fourth equity rule, which required an application to the corporation and a refusal by it to sue. But of course the bank or its receiver must be a party to the action.

6 Hobart v. Gould, 8 Fed. R. 57; Sowles v. Witters, 39 Fed. R. 403; Witters v. Sowles, 32 Fed. R. 130; Thompson v. Meisser, 108 111. 359; In re Empire City Bank, 18 N. Y. 119; Buchanan v. Meisser, 105 I11. 638; Burnap v. Harkins Engine Co., 127 Mass. 586; Paine v. Stewart, 33 Conn. 516; Parker v. Carolina Sav. Bank, 31 & E. R 673.

7 Wheeler v. Millar, 90 N. Y. 353. The reasoning of this case is exceedingly attenuated. Compare Boyd v. Hall, 56 Ga. 563.

8 Wells v. Stout, 38 Fed. R. 807. This case seems right wherever the assets of the corporation must first be exhausted.

9 See cases cited in note 9 to Sec. 65, supra. But at law several stockholders might be sued where the liability of none exceeded the debt.

10 See Sec. 65, supra. But it seems to be permissible to join in this action causes of action against officers of the bank. Where this is done, it is needless to say the corporation and its receiver should both be made parties, because the right of action is in the bank. See Gager v. Marsden, 77 N. W. R, 920.

11 Marsh v. Burroughs, 1 Woodsr 463. See 3 Am. St. R. 858, in note