The opinion was delivered October 17th 1866.
Per Curiam.
When this case was here before (see 11 Wright 51) we agreed that there was error in proceeding against the stockholders without joining the company. That the judgment against the company alone proving unavailing to the creditor, would not authorize him to proceed against the stockholders "alone. We held that this was not the remedy provided by the statute; both ought to be joined, or at least a portion of the stockholders, with the company, and then the order of liability would be regulated by the act. There had been a common-law judgment against the company in the case, and it was contended that as no other action could be maintained against it, and that as the stockholders could not be sued unless the company was joined, therefore the plaintiff’s claim was gone by reason of the original non-joinder. This presented a technical difficulty, and being unwilling that the creditors should be deprived of the security which the statute afforded, we suggested an amendment (the case going back for retrial) introducing the company as a co-defendant, with averments in the narr. to show that the common-law judgment against the company was to be the basis of the judgment against it under the statute in connection with the stockholders. We assimilated this with an action of debt on a judgment. Our suggestion was adopted, and now there is a judgment against both the corporation and stockholders sued *379just as the act provides, and we are asked to reverse it because of technical difficulties. It is admitted that the practice under the Act of 1849, and supplements, adopted in Patterson v. The Wyomissing Manufacturing Go., 4 Wright 117, and followed in this case, 11 Wright 51, is illogical and inconvenient, and that a better practice should be adopted: but this is a mere matter of practice, and in admitting this much, we do not intend to be held as acknowledging the positive error in view of the provisions of the statute which would demand the reversal of this judgment and the defeat of the creditors without touching the merits of their case. This would be yielding to form what should only be conceded to justice. We do not, therefore, overrule what we did in this case and in the case preceding it, but we wish the profession in the future in all cases under the Manufacturing Act of 1849 to understand that where they intend to hold the stockholders for debts due by the company, to join'them, or a portion of them at least, in their action against the company. If the company is of sufficient ability to pay, it can do them no harm, for their liability to make satisfaction is only secondary under the statute. A common-law action will lie, of course, against the company, and if there be no doubt of its ability to respond to the demands of the execution, in that case there would be no necessity for joining stockholders. But this is a risk which, if intelligently taken, may hereafter be without remedy if it should turn out differently. We wish to conform the practice as near to the act as possible ; hence we make these suggestions, seeing no sufficient reason for reversing the judgment in any of the assignments of error on the record. In the circumstances of it, it is affirmed.