It is clear that Mr. Dewey is not liable as a stockholder for the debt claimed in this action. He had ceased to be a member of the corporation at the time the judgment declared on was rendered. The original debt was thereby merged, and a new debt created, for which those who were not then stockholders were not liable. Handrahan v. Cheshire Iron Works, ante, 396.

It is equally clear that the plaintiff failed to show that either of tne persons summoned as stockholders was chargeable with any debt of the corporation. The statute, by authorizing the *579stockholders who are summoned in the action to appear and defend it, necessarily imposes on the plaintiff the burden of proving that the persons summoned are stockholders in the corporation, and that as such they are liable for its debts. Although Ihey cannot be allowed to dispute the cause of action, they can defend against the claim of the plaintiff to recover an execution, on which their private property may be taken. But in making such defence they are not bound to prove a negative. It is not incumbent on them to show, in the first instance, either that they are not stockholders, or that the corporation has not omitted to comply with the requisitions of the statute regulating manufacturing corporations, so that the stockholders are not rendered liable for the corporate debts. The affirmation of this issue lies on the plaintiff. He is bound to show that the persons whom he has summoned as stockholders are liable for the payment of the debts of the company. No such proof was offered at the trial of the present case. The plaintiff only proved that Dewey and Freeman were stockholders in the corporation. He failed to offer any evidence that the corporation had in any particular omitted to comply with the requirements of the statute, whereby their stockholders were made liable for the corporate debts.

The error of the plaintiff consists in supposing that the provisions of the practice act, Gen. Sts. c. 129, §§ 17, 27, are applicable to a proceeding like the one at bar, and that the omission to file an answer denying in clear and precise terms that the stockholders in the corporation were liable for the debts operated as an admission of that fact. But the provisions above cited are intended only to apply to the actions enumerated in the first section of that chapter, and comprehended within one of the three divisions of actions therein named; namely, actions of contract, actions of tort, and actions of replevin. They do not apply to a case like the present, which is of a peculiar and anomalous character, so far as it is designed to try the question of the liability of stockholders for corporate debts. As to them, it is, properly speaking, neither an action of contract nor an action of tort. It is a proceeding sui generis, by which a legal *580liability created by statute is sought to be enforced, which does not come within any of the usual forms of actions known to the common law.

Doubtless it was competent for the court before which the suit was pending to order the persons who were summoned as stockholders, and who had appeared to defend, to file a specific statement of the grounds on which they intended to deny their liability. But in the absence of such order, they were not bound to file a definite and precise answer, and their omission to do so could not be construed into any admission of liability. Exceptions overruled.