41 So. 272 | Ala. | 1906
UThis bill is filed by the complainant, a simple contract creditor of an insolvent corporation, to compel the respondent to pay what is clue upon her sub" scription and to subject the same to-payment of his debt. Section 823 of the code of 1896 confers this right in a court of equity only upon judgment creditors..
Acts 1903, p. 388, has no application to a bill of this kincl^ but simply permits the marshaling of the assets of an insolvent corporation for. the payment of creditors. The bill in the case at bar is in no sense such a bill as is contemplated by said act. The complainant,-having no right under the statute to maintain this bill, is relegated to the common law, and, if he canfiot proceed thereunder, has no standing in the chancery court. “No facts' will be sufficient to excuse the creditor from obtaining a judgment at law against the corporation, except facts' -which' are such as to make it impracticable for him to obtain such a judgment.” The mere insolvency of the corporation does not relieve the complainant from first obtaining a judgment and its being returned nulla bona.— 10 Cyc. 728; Tarbell v. Page, 24 Ill. 46; Van Weed v. Winston, 115 U. S. 228 6 Sup. Ct. 22, 29 L. Ed. 384.
An attempt is made in the bill as amended to excuse' a failure to obtain a judgment against the corporation by
The constitution of West Virginia clearly defines the liability of a stockholder for his unpaid subscription to the capital stock and is an affirmance of the common law. —10 Cyc. p. 678. §§ 1, 2. The first ground of the demurrer was properly overruled.
“A general statute imposing an individual liability upon the' shareholders includes married women, arid,' unless they are specially mentioned by its terms, they are not exempted by reason of their coverture.” — 10 Cyc. p. 682, § 11; Reciprocity Bank Case, 22 N. Y. 9; Dreisbach v. Price, 133 Pa. 560, 19 Atl. 569. The fourth ground of the demurrer was properly overruled.