tiff so to sue beyond as well as within the limits of Ohio as might be necessary. It is to be assumed that it was the purpose of the legislature and of the court of common pleas to provide an effectual remedy for the enforcement of the double liability in other states and fully to authorize and empower the receiver to accomplish the object contemplated and intended by the constitution and the act passed to give it practical operation and effect, and further, that Elliott through his subscription to the capital stock of the railroad company agreed that the receiver appointed to enforce the double liability against him as a stockholder should have right and title so to do. The double liability constituting a special quasi-trust fund, not for the corporation nor included among its assets, but exclusively for its creditors, a receiver under the legislatively authorized direction of the court for the enforcement of such double liability, whether in Delaware or any other state, acts, not as a naked chancery receiver, but as a representative of the creditors or a quasi-assignee or trustee, and in such capacity has a right or title to sue which must be respected, not only in Ohio, but in any other state. Converse v. Hamilton, 224 U. S. 243, 32 Sup. Ct. 415, 56 L. Ed. 749; Bernheimer v. Converse, 206 U. S. 516, 27 Sup. Ct. 755, 51 L. Ed. 1163; Francis v. Hazlett, 192 Mass. 137, 78 N. E. 405, 116 Am. St. Rep. 230; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. R. A. 301; Goss v. Carter, 156 Fed. 746, 84 C. C. A. 402; Irvine v. Bankard (C. C.) 181 Fed. 206; Bankard v. Irvine, 184 Fed. 986, 106 C. C. A. 664; Irvine v. Putnam (C. C.) 190 Fed. 321; Irvine v. Putnam (C. C.) 167 Fed. 174; Shipman v. Treadwell, 200 N. Y. 472, 93 N. E. 1104.

In Bernheimer v. Converse, supra, it was held that a receiver appointed in Minnesota to enforce the double liability of stockholders of a corporation of that state could maintain an action in New York against stockholders based upon an assessment made against them in the proceedings in Minnesota, although not served with process in that proceeding nor appearing therein. The Minnesota statute of 1899 (Laws 1899, c. 272) under which Bernheimer v. Converse was decided, was, as has been said, essentially different from the statute of 1894 (Gen. St. 1894, c. 76) with which the court dealt in Hale v. Allinson, 188 U. S. 56, 23 Sup. Ct. 244, 47 L. Ed. 380, but quoad the right of the receiver to sue in other states for the enforcement of the double liability essentially the same as section 3260 of the revised statutes of Ohio, as amended and supplemented on and before April 16, 1900. The Minnesota statute of 1899 directed, among other things, that on the petition of an assignee of a corporation of that state for the benefit of its creditors under its insolvency laws, or of a receiver of the corporation duly appointed under the general equity powers and practice of the court, or pursuant to any statute, or of any creditor who had filed his claim in assignment or receivership proceedings, action might be taken for making an assessment upon the stockholders for the enforcement of their double liability; that the court should "direct the payment of the amount so assessed" to the assignee or receiver within the time specified in its order; that the order should direct the assignee or receiver in default of payment of such assessment to

"prosecute action against each and every such party so failing to pay the same, wherever such party may be found, whether in this state or elsewhere"; and that actions for the amount assessed might be maintained against each stockholder severally in Minnesota or "in any other state or country where such stockholder, or any property subject to attachment, garnishment or other process in an action against such stockholder, may be found." This legislative enactment contained a proviso having no pertinency to the point now under consideration. The Minnesota statute of 1899 did not expressly vest in the assignee in insolvency or the receiver any right or title to the stockholders' double liability nor did it mention the vesting of title in him; and it cannot be assumed, in view of the fact that the double liability runs, not to the corporation, but exclusively to its creditors, that property in it passed to its assignee or receiver as trustee, quasi-assignee or in any other capacity, save in so far as the authority and duty conferred and imposed upon him to collect the quasi-trust fund, consisting of the double liability, constituted him a representative of the creditors as the cestuis que trustent or a quasi-assignee for their benefit. Whatever right or title he possessed to recover the amount of the assessment in other states arose, therefore, not from any express conference of title upon the receiver, but solely from the fact that he was legislatively authorized to recover the quasi-trust fund as the representative of the creditors of the corporation, and precisely this authority was conferred upon Irvine, although in fewer words, under section 3260 as amended and supplemented, by the court of common pleas in the decree of July 17, 1905. The court in Bernheimer v. Converse said:

"It is objected that the receiver cannot bring this action, and Booth v. Clark, 17 How. 322 [15 L. Ed. 164], Hale v. Allinson, 188 U. S. 56 [23 Sup. Ct. 244, 47 L. Ed. 380], and Great Western Mining Co. v. Harris, 198 U. S. 561 [25 Sup. Ct. 770, 49 L. Ed. 1163], are cited and relied upon. But in each and all of these cases it was held that a chancery receiver, having no other authority than that which would arise from his appointment as such, could not maintain an action in another jurisdiction. In this case the statute confers the right upon the receiver, as a quasi assignee, and representative of the creditors, and as such vested with the authority to maintain an ac tion. In such case we think the receiver may sue in a foreign jurisdiction." In Converse v. Hamilton, 224 U. S. 243, 32 Sup. Ct. 415, 56 L. Ed. 749, the court had under consideration the Minnesota statute of 1899 above referred to and said:

"Under this statute, as interpreted by the Supreme Court of the State, as also by this court, the receiver is not an ordinary chancery receiver or arm of the court appointing him, but a quasi-assignee and representative of the creditors, and when the order levying the assessment is made he becomes invested with the creditors' rights of action against the stockholders and with full authority to enforce the same in any court of competent jurisdiction in the State or elsewhere. It is true that an ordinary chancery receiver is a mere arm of the court appointing him, invested with no estate in the property committed to his charge, and is clothed with no power to exercise his official duties in other jurisdictions. But here the receiver was not merely an ordinary chancery receiver, but much more. the proceedings in the sequestration suit, had conformably to the laws of Minnesota, he became a quasi-assignee and representative of the creditors, was invested with their rights of action against the stockholders, and was charged with the enforcement of those rights in the courts of that State

** *

By

and elsewhere. So, when he invoked the aid of the Wisconsin court the case presented was, in substance, that of a trustee, clothed with adequate title for the occasion, seeking to enforce for the benefit of his cestuis que trustent, a right of action, transitory in character, against one who was liable contractually and severally, if at all."

In Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. R. A. 301, approved by the Supreme Court of the United States, as already stated, the court said with reference to the enforcement of the double liability:

"It has been held that an ordinary appointment as receiver, made in another state will not enable the appointee to sue in this Commonwealth in his own name. * * * In the present case the receiver is called by the court in Washington a quasi assignee for creditors. He is charged with the administration of a trust fund which does not take form or come into actual existence until after his appointment, and he is the only person who can collect it. By virtue of his official relation to the corporation and its creditors he is the owner of the legal title to this fund as a trustee for the creditors. A suit could not have been brought in the name of the corporation, and he is the only person who can now, or who ever could, legally demand and collect the money. We are of opinion that the action is rightly brought in his name."

* * *

No importance is attached to the fact that in the decree of the circuit court of Franklin county of December 7, 1907, which subsequently was reversed, it was ordered and adjudged that the plaintiff "be, and he hereby is, invested with the title and ownership in trust for the creditors of said railroad company * * * of the rights of the creditors of said railroad company, against the stockholders including the several sums hereinbefore found due from the stockholders," or to the fact that the decree of the court of common pleas of May 28, 1909, contained a similar provision. Whatever motive may have prompted the making of such a provision it was wholly unnecessary and neither enlarged nor impaired the authority and right of the receiver to maintain suit in other states to enforce the double liability. For the receiver could not act in excess of the power conferred by the legislature upon the court to authorize and direct him "to prosecute such action in his own name as receiver, as may be necessary, in other jurisdictions to collect the amount found due from any officer or stockholder." For the foregoing reasons the demurrer cannot be sustained on the eighth ground, challenging the right of the plaintiff to maintain suit in Delaware to enforce payment of the assessment made against the defendant under his double liability.

[17] The fourth ground of demurrer is to the effect that this action is barred by the Ohio "statute of limitations," because not brought against the defendant "within eighteen months from the accrual of the cause of action mentioned in said declaration"; and the sixth ground is to the effect that the action is barred by the Delaware statute of limitations because "not brought within three years from the accrual of the cause of action against this defendant." But little need be said of the Delaware statute. If under the laws of this state there be any limitation applicable to this action it is to be found in section 6 of chapter 123 of the revised code, providing:

"No action of trespass, no action of replevin, no action of detinue, no action of debt not found upon a record or specialty, no action of account, no action of assumpsit, and no action upon the case shall be brought after the expiration of three years from the accruing of the cause of such action; subject, however," etc.

The omitted qualification has no pertinency here. This is an action of debt, and the above section includes all actions of debt "not found upon a record or specialty." If the action be "found upon a record or specialty" there is no limitation applicable to it; and lapse of time less than a period of twenty years from the accruing of the cause of action, necessary to give rise to a presumption of payment, cannot of itself render the action defeasible. If, on the other hand, the ac-. tion is not "found upon a record or specialty," but upon an implied contract resulting from the acquisition by Elliott of stock in the railroad company and the double liability he thereby incurred and assumed, the three year limitation is applicable as a pure limitation and nothing else, and under the settled law of this state cannot be taken advantage of by demurrer, but must be pleaded. Parker v. Whitaker, 4 Har. (Del.) 527.

It is claimed in the fourth ground of demurrer that this action is barred because not brought within eighteen months from the accrual of the cause, not of this action, but of the "action mentioned in said declaration." That action was the domiciliary suit in Ohio commenced by the filing of the Marriott and Kinsey petitions in 1899.

Section 3258 of the revised statutes of Ohio which had been in force from 1880 was amended April 29, 1902 (95 Ohio Laws, p. 312) and again April 24, 1904 (97 Ohio Laws, p. 390). By the former amendment the following provision was added:

"Sec. 3258a. An action upon the liability of stockholders can only be brought within eighteen months after the debt or obligation shall become enforceable against stockholders."

And by the later amendment, passed to adapt the legislation on the subject of the double liability to the changed condition of things produced by the constitutional amendment of November 3, 1903, abolishing such liability, a provision to precisely the same effect was added. There has been much contrariety of judicial opinion on the point whether the eighteen months limitation begins to run from the insolvency of an Ohio corporation, barring any domiciliary suit for the enforcement of the double liability not commenced within that period, or, on the other hand, is applicable only to an action brought against a stockholder who has not been served with process nor appeared in the domiciliary suit, barring such action if not brought within eighteen months after the completion of the final assessment against him and the appointment of a receiver. On principle it would seem that the eighteen months should not begin to run until after the making of the final assessment and such appointment. Before section 3260 was so amended and supplemented as to permit the enforcement, by a receiver appointed in the domiciliary proceedings, of such liability against stockholders in other states, the local or domiciliary action was brought by one or more creditors of the insolvent corporation on behalf of

themselves, and all other creditors thereof, against it and all its stockholders, non-resident as well as resident. The period of limitation applicable to the action was six years from and after the insolvency of the corporation. An assessment under the double liability could be made only in the domiciliary suit, and no judgment or decree to enforce the payment of such assessment against any stockholder could be rendered or made save in that suit. There was no means by which non-resident stockholders of an Ohio corporation could be reached by process beyond the limits of that state, and unless served with process while temporarily there or voluntarily appearing in the domiciliary proceedings no judgment or decree could pass against them for the amount assessed against them in such proceedings. Under these circumstances there could be no reason to cut down the period of limitation for the commencement of the domiciliary action from six years to eighteen months unless on general principles the latter period was deemed preferable to the former.

But after the passage of the amendatory and supplemental act of April 16, 1900, providing means for the enforcement beyond the limits of Ohio of the double liability of the stockholders of Ohio corporations through actions brought by receivers appointed in the domiciliary proceedings, there was the strongest reason for limiting the bringing of such actions to a comparatively short period, to the end that the double liability fund should be promptly realized and distributed equitably and justly among the creditors. Further, it is a significant fact, that if the eighteen months limitation was intended to apply to the domiciliary suit there would have been no period of limitation applicable to a suit for the enforcement of the double liability against non-resident stockholders over whom jurisdiction in personam had not been acquired in the domiciliary proceedings, save the varying periods of limitation provided by the lex fori in the various states in which such suit should be brought. It seems inherently improbable that the legislature of Ohio, in view of the desirability of making prompt distribution among the creditors of the double liability fund, could have intended such a result. Hence, it seems most natural that section 3258a which limits the bringing of an action upon the double liability to the period of eighteen months after the debt or obligation "shall become enforceable against stockholders" should have been intended to apply only to suits brought against stockholders not served with process nor appearing in the domiciliary proceedings.

[18, 19] If, however, the eighteen months limitation was intended to apply only to a domiciliary suit for the enforcement of the double liability, it could have no application to this case; for the domiciliary suit in question was commenced before the enactment of the statute creating the eighteen months limitation, and at the time of such enactment more than eighteen months had elapsed after the insolvency of the railroad company. The contractual liability of Elliott and other stockholders of the railroad company to its creditors through their acquisition of stock had been created and was in full force, and it was not within the power of the legislature of Ohio, under the constitution of the United States, wholly to deprive the creditors of all