dissenting. — The error of the majority, as I think, consists in the assumption that plaintiff’s right of action against defendant, as a stockholder of the. corporation, accrued when the incorporation became insolvent, and had no property out of which his claim against it could be made.
*453The liability of the stockholder to the creditor of the corporation is not created by the sections of the statute quoted in the opinion, but is implied from the relations of the parties. The capital stock of the corporation is regarded by the law as a trust fund for the benefit of the creditors, and the shareholder who has not paid the amount of his subscription to the capital stock is regarded as a trustee of a portion of this trust fund. The capital stock is held out to all who extend credit to the corporation as security for the debts it contracts, and there is an implied agreement by the stockholder that he will answer for the debts of the corporation, in case of its insolvency, to the amount of the unpaid portion of his subscription to the capital stock. The statute recognizes the obligations of this implied agreement, and provides a proceeding for its enforcement. Before its enactment, the remedy of the creditor of tlm corporation against the shareholders was by an action in chancery to compel them to contribute pro rata to the discharge of the debt. Story’s Equity Jurisprudence, § 1252.
But the object of the legislature in enacting the statute was, undoubtedly, to afford him a remedy which, as between him and the stockholders, should be exclusive, and there is now no other proceeding against the shareholder by which he can be compelled to contribute to the satisfaction of his debt, except the one provided by the statute.
While, therefore, the individual liability of the shareholders for the debts of the corporation grows out of the contract relations between them and its creditors, the right of action against them thereon accrues in favor of the creditor only on the happening of the events which the statute has made conditions precedent to his right of recovery against them.
Under the practice before the statute, when the remedy of the creditor was by a creditor’s bill in equity, it was essential to his right of action against the shareholder that he should have exhausted his legal remedies against the corporation, anda casual examination of sections 1083, 1084 shows, *454as I think, that the legislature never intended to change the rule in this respect. It is perfectly clear, I think, that the action to charge the stockholder, provided by section 1084, can be maintained by the creditor only after his claim against the 'corporation has been reduced to judgment.
The manifest object of the proceedings contemplated by the statute is to charge the shareholder with the judgment against the corporation, and no lawyer would think of attempting to proceed against him until the legal liability of the corporation was established by the judgment of some court of competent jurisdiction. As plaintiff’s right of action against defendant did not accrue thereon until it obtained its judgment against the corporation, the statute of limitations did not begin to run until that time. Code, § 2529. The holding of the majority is, in effect, that it began to run whenever the corporation became bankrupt, and had no property out of which the creditor’s claim could be made. I cannot bring myself to believe that this is the true rule. If it is, it might follow, in some cases, that the remedy of the creditor against the shareholder might be barred before his right accrues under the statute, to institute proceedings for its enforcement; this would be the case in every instance where the debt of the corporation does not mature until five years after it becomes insolvent.
The rule I am contending for could work the hardships and inconveniences pointed out in the original opinion only in case the shareholder neglected his own interests. The stockholder of an insolvent corporation has it in his power at any time to institute legal proceedings for the winding up of its affairs, and the collection and proper application of its assets,— a proceeding not always open to the creditor; and in this right he has ample protection against the liability to be charged with stale or unjust-claims against the corporation.
But if the rule is the correct one, as I think it is, it ought to be applied regardless of the consequences which might *455follow its application. In my opinion tbe judgment of the circuit court should be reversed.
Mr. Justice Adams concurs in this dissent.