exercise his choice as to suing one or more of them in the same action.1 But if the statute makes them severally liable, and only to a limited extent a creditor might, unless restrained, upon equitable grounds maintain a separate action against each, but could not join two or more of them in one suit.2 Whether in the absence of a statutory declaration on the subject in the case of an unlimited liability as partners, the shareholders might be proceeded against separately or should all be joined seems not to be clearly settled upon authority; but the weight of authority is in favor of the doctrine that separate actions would not lie and that all should be joined.3 It would be impossible to assert upon authority just what rules should govern in the matter of parties to actions at law in this class of actions. The proper practice in individual states must be determined from an examination of the statutory provisions and decisions therein. Resort to these must also frequently be 1 Larabee v. Baldwin, 35 Cal. 156; Hall v. Klink, 25 S. C. 348. 2 B'k of Poughkeepsie v. Ibbotson, 24 Wend. 479; Abbott v. Aspinwall, 26 Barb. 202, 208; Perry v. Turner, 55 Mo. 418. 3 See Allen v. Sewall, 2 Wend. 327. Contra, Strong v. Wheaton, 38 Barb. 616, 622; Reynolds v. Feliciana Steamboat Co., 17 La. 397, 407. In Strong v. Wheaton, 38 Barb. 617, it was held that the provision of the New York Code with respect to parties to actions to the effect that persons severally liable of the same obligation or instrument may all or any of them be included in the same action at the option of the plaintiff, should be confined to its legal meaning and did not embrace a class of actions not evidenced by a writing; and as a consequence of this construction it was then held that an action for work and labor could not be maintained against two stockholders of a corporation by an employee without bringing in the other stockholders. A motion to dismiss was made on the ground that it was sought to charge stockholders of a corporation for its debts for the amount of stock held by them, without joining all of the creditors as plaintiffs, and all of the stockholders as defendants. Held, that this was an objection to an alleged defect of parties, and did not suggest that an issue was being tried which was not made by the pleadings, nor that the stockholders were not hable under Const. Minn. art. 10, § 3, making stockholders liable to the amount of stock held by them in a corporation organized for the purpose of carrying on other than a manufacturing or mechanical business. Densmore v. Red Wing Lime & Stone Co. (Minn.), 48 N. W. 528; Id. 681. had to determine whether or not an action at law can be maintained at all. If an action at law lies, the shareholder's liability being limited and several, each being made liable for a sum certain, a separate action will lie against each.1 § 914. Parties to proceeding in equity.-The usual object of resorting to a court of equity is to adjust, as far as may be conveniently done, the rights of all the creditors and shareholders. To accomplish that object, the creditors should all join, or at least have an opportunity of joining, because they have a common interest in the funds to be collected from the shareholders; and all the stockholders should be made defendants because they have a common interest and without their presence it is impossible to adjust their rights and protect 1 Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Perry v. Turner, 55 Mo. 418; Boyd v. Hall, 56 Ga. 563; Paine v. Stewart, 33 Conn. 576; Culver v. Third Nat. B'k, 64 Ill. 528; Abbott v. Aspinwall, 26 Barb. 202; Garrison v. Howe, 17 N. Y. 458; Terry v. Little, 101 U. S. 216. Under some of the statutes the liability is held to be substantially that of partners. Where that is the case, all must be joined as defendants and the omission of one is ground for a plea in abatement. Allen v. Seawell, 2 Wend. 327; Reynolds v. Feliciana Steamboat Co., 17 La. Rep. 397; Dean v. Whitory, 16 Hun, 205; Bonewitz v. B'k, 41 0. St. 78. See Dodge v. Minn., etc., Slate Roofing Co., 16 Minn. 368; Culver v. Third Nat. B'k, 64 Ill. 528; Branson v. Oregonian Ry. Co., 10 Or. 278; Hoag v. Lamont, 60 N. Y. 96; Abbott v. Aspinwall, 26 Barb. 202, 207. Special provisions are made as to parties by the Pennsylvania statute. See Marshfield Iron Wks. v. Wilcox, 52 Pa. St. 377; McHose v. Wheeler, 45 Id. 32; Hoard v. Wilcox. 47 Id. 51. There the corporation itself is required to be made a party defendant. Id. A general joint and several liability for all the corporate debts makes the stockholders liable as partners. Planters B'k, etc., v. Divingsville, etc.. Co., 10 Rich. L. 95; Southmayd v. Russ, 3 Conn. 52; Middletown B'k v. Magill, 5 Id. 28, 45; Conant v. Van Schaick, 24 Barb. 87; Harger v. McCullough, 2 Denio, 119; Wiles v. Suydam, 64 N. Y. 173, 176; Conklin v. Farnam, 57 Barb. 487; Erickson v. Nesmith, 46 N. H. 371; White v. Blum, Neb. 555; N. E. C. B'k v. Newport Steam Fac., 6 R. I. 154; Maies v. Sprague, 9 Id. 541; Witherhead v. Allen, 28 Barb. 667; Chase v. Lord, 77 N. Y. 33. In some of the states though the liability is limited, the liability and the form of action and the parties thereto is the same to the extent of the liability as in the case of partners. Wehrman v. Rearkirt, 1 Cinn. Sup. Ct. 230; Brown v. Hitchcock, 36 O. St. 678. See also, Stewart v. Lay, 45 la. 604; Crease v. Babcock, 10 Met. 14 Wis. 700. them from unequal and oppressive burdens. The corporation should likewise be joined as a defendant. If there are still remaining any assets of the corporation, stockholders are entitled to have them applied on the indebtedness, thus extinguishing pro tanto their own liability; and if there are none still creditors who have not established their claims against the corporation by judgment, should have an opportunity to prove them before a master or referee.1 But while all the shareholders are proper parties they are not necessary parties. Those within the convenient reach of the court may be compelled to come in and respond to the claims of creditors to the full extent of their liabilities and left to resort to the other shareholders for contribution in a subsequent proceeding.2 The court having acquired jurisdiction of a part, may apportion the entire amount of claims presented to it among those before it until they are satisfied or the liabilities of the shareholders before the court are exhausted and may then, if necessary to full payment of the claims, bring in others to the full extent of the liability of all shareholders." 1 Coleman v. White, 14 Wis. 700. 2 Erickson v. Nesmith, 46 N. H. 371. But in Alabama where the proper proceeding is a suit in chancery all the stockholders must be joined and nonjoinder of some of them will render the bill demurrable. Friend v. Powers (Ala.), 9 So. 392, (July, 1891). For construction of § 5322, Civ. Code Cal. relating to individual liability of stockholders, see Redington v. Cornwell (Cal.), 27 P. 40. It was then held that where one stockholder and director pays more than his proportionate share of such debt, the payment is not voluntary, and he is entitled, as against a codirector who knew of and acquiesced in such payment, to contribution, and to be subrogated to the rights of the creditor, since he has a beneficial interest in the property of the corporation, which is answerable for the debt, and from which the other stockholders' proportion must be paid, if not paid by them individually. 3 See Godfrey v. Terry, 97 U. S. 171. § 915. Defences, limitations, set-off, etc.-Statutes of limitation affecting this class of action sometimes present two phases; one having reference to the time when the stockholder's connection with the corporation ceases; the other to the time when the cause of action accrued against the corporation. The statute begins to run against the creditor from the time when a stockholder severs his connection with the corporation and has a record of the fact entered upon the proper books of the corporation, whether the creditor has actual notice of it or not; especially if by statute the books are required to be kept open for the inspection of creditors.1 The appointment of a receiver under statutory authority is held to sever the relation between the corporation and its shareholders to the extent of setting the statutes in operation. And the weight of recent authority is to the effect that, where a creditor gives an extension of time to the corporation on a debt, although he take a renewal note, this does not stop the running of the statute against his original demand as against the stockholder on his statutory liability." The liability is independent of any rights and equities existing between the stockholders and the corporation; but the stockholder may have the benefit of any matter of offset or counter-claim in his favor and against any individual creditor as in other actions. And a release of the corporation or judgment in its favor upon a demand inures to the benefit of a shareholder.4 1 Moore v. Boyd, 74 Cal. 167; 15 P. 670. 2 Hollingshead v. Woodard, 107 N. Y. 96; 13 N. E. 621. 3 Hardiman v. Sage, 47 Hun, 230; Reversed on appeal, 26 N. E. Rep. 354; Hyman v. Coleman, 82 Cal. 750; Contra, Tama W. P. Co. v. Hopkins, 79 Ia. 653; 44 N. W. 797. An action against a corporation on notes given by it is not an action on the debts for which the notes were given, within the meaning of the New York statute requiring such action to be brought within one year in order to render the stockholders liable therefor. + Mohr v. Minn. El. Co., 40 Minn. 343. Griffith v. Green, 13 N. Y. S. 470. § 916. Advantages and disadvantages of proceeding in equity. Many considerations induce the courts to favor courts of equity as the tribunal in which to enforce not only the common law liability of shareholders for unpaid capital but also their special statutory liability. Among the advantages are the justness, fairness and impartiality which can no where else be so fully enforced among all parties. By employment of the remedies of such courts equal distribution may be made among all the creditors, contribution may be had among all the shareholders and a multiplicity of suits is avoided.1 On the other hand, the proceeding in equity is protracted, vexatious and expensive.2 § 917. Election of remedies.-The general rule that the creditor has his election of remedies is still maintained. The action at law lies upon the debt while the equitable jurisdiction arises from the fitness of equitable remedies and from the power of a court of equity to compel contribution among shareholders and make equitable distribution among creditors.3 within the period fixed by statute is not available to the stockholder as a defence where the corporation has prevented suit by dissolution. Arnot v. Sage, 52 Hun, 613; 5 N. Y. S. 477. 1 Pollard v. Bailey, 20 Wall. 520; Hatch v. Dana, 101 U. S. 205; Terry v. Little. Id. 216; Smith v. Huckabee, 53 Ala. 191; Jones v. Jarman, 34 Ark. 323. See Sands v. Kienback, 37 Barb. 108, 120; Cushman v. Shepherd, 4 Id. 113; Coleman v. White, 14 Wis. 700; Carpenter v. Marine B'k, Id. 705, n.; Terry v. Tubman, 92 U. S. 156; Andrews v. Bacon, 38 Fed. Rep. 777; Duykendall v. Miles, 10 Fed. Rep. 342. 2 By reason of the great number of stockholders, the frequent transfers of stock, the decease of parties and of other causes, delays, vexatious, expensive and almost interminable seem to be inevitable in all such proceedings; so much so indeed, that such liability has grown to be looked upon as furnishing next to no security at all for the debts of corporations. Mason v. Alexander, 44 O. St. 318. 3 See Bank of U. S. v. Dallaur, 4 Dana, 574; Van Hook v. Whitlock, 3 Paige, 409; Bank of Poughkeepsie v. Ibbotson, 24 Wend. 473; Pfohl v. Simpson, 74 N. |