
    Neil McRae vs. Jesse A. Locke & others.
    An action at law cannot be maintained by a creditor of a corporation against its officers, te enforce the liability imposed by St. 1863, c. 246, § 2.
    In an action at law against the officers of a corporation, to enforce their statute liability for the corporation’s debts, the objection that the remedy is not at law, but in equity, where the corporation is a necessary party, is not waived by the submission of the case upon an agreed statement of the facts necessary for the determination of the question of liability. Upon an appeal from the Superior Court to this court, an action at law cannot in this court be changed by amendment to a proceeding in equity.
    Tort against the president and three of the directors of the Massachusetts and Oil Creek Petroleum Company, to recover the amount of two promissory notes of the company, dated respectively June 4,1866, and September 10,1866, the title to which was in the plaintiff, upon the ground that the certificate filed June 21, 1866, by the officers of the corporation with the clerk of the city of Boston, where the corporation was established, was not a certificate sufficient to meet the requirements of St. 1862, a. 210, § 1. Writ dated September 16, 1871.
    The case was submitted in the Superior Court upon an agreed statement of the facts necessary for the determination of the question of the officers’ liability, and judgment was there ordered for the defendants, arid the plaintiff appealed.
    
      F. Goodwin, for the plaintiff.
    
      H. C. Hutchins, for the defendants.
   Wells, J.

No action at law can now be maintained by a creditor of a corporation against its officers, to enforce liabilities imposed by the statutes relating to corporations. If such an action was authorized, against officers of a mining company, by Gen. St. c. 60, § 31, and c. 61, § 5, that provision was expressly repealed before this cause of action arose. Sts. 1862, c. 218, § 10; 1870, c. 224, § 69. No remedy now exists except in equity.

This objection to the form of action is not waived or rendered immaterial by the submission upon an agreed statement of facts. The corporation is a necessary party to a proper bill in equity.

The plaintiff cannot be allowed, in this court, to amend by changing the action to a suit in equity. The appeal does not transfer the case, but only the question of law. Gen. Sts. c. 115, § 12. There being no error of law in the judgment of the court below, it must be

Affirmed.  