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cember 22, 1906, to the circuit court for Franklin county, which refused, on motion made for that purpose, to dismiss such appeal, but by an order or decree made December 7, 1907, in effect reversed the decree appealed from, and assessed against all of the defendant's stockholders including Elliott 50% of the par value of the capital stock of the railroad company held by them; that some of the defendants in the consolidated cause thereupon duly prosecuted a proceeding in error to the Supreme Court of Ohio, giving a supersedeas bond under the laws of that state; that the Supreme Court May 11, 1909, reversed the decree of the circuit court of December 7, 1907, and sustained and affirmed the decrees of the court of common pleas of July 17, 1905, and December 22, 1906, respectively, and found and adjudged that the judgments, decrees and assessments and each of them made and entered in the consolidated cause in the court of common pleas July 17, 1905, and December 22, 1906, respectively, were final and conclusive, and that they and each of them "now stand unreversed and unmodified and are in full force and virtue in law"; that all the above mentioned appeals and proceedings upon writs of error were taken in due time as required by law, and upon proper bonds being filed as required by law, and as hereinabove referred to; that the effect of said appeals and proceedings on writs of error under and by virtue of the laws of Ohio was to suspend the operation and effect of the said decrees of the court of common pleas; that by reason of said appeals and proceedings by writ of error there was no time during which Irvine could lawfully proceed as such receiver, under and by virtue of the decrees of the court of common pleas, to enforce the collection of the amounts so assessed against the stockholders of said company, defendants in the consolidated cause, until the making of the order and decree of the Supreme Court May 11, 1909; that the court of common pleas made a further order and decree May 28, 1909, that Irvine as receiver be invested with the title and ownership in trust for the creditors of the railroad company of and to all and singular its property and assets and the rights of its creditors against its stockholders wherever situated or held, including the right to the sum of money found due from and assessed against Elliott as above mentioned, and empowering, authorizing and directing Irvine, receiver as aforesaid, to institute and prosecute in his own name in pursuance of the statute in such case made and provided, such action, actions or other proceedings against the defendants in the consolidated cause and the stockholders of the railroad company, or any of them, in any court of competent jurisdiction in Ohio or elsewhere as he might deem necessary or proper for the recovery of the amount due from such defendant or defendants and from the stockholders of the railroad company as thereinbefore or thereafter found and adjudged by the court of common pleas, and further authorizing and empowering him to commence and prosecute such action or actions against such defendants and stockholders, or any of them, whether residing in Ohio or elsewhere, and whether served with process in such proceedings in the court of common pleas by publication or otherwise, and to commence and prosecute such action or actions

against any such defendants or stockholders who were during the pendency of the action in the court of common pleas non-residents of Ohio whether personally served with process or not in such action; that the decree of May 28, 1909, is final and unreversed and in full force and effect and no appeal therefrom is pending; that by virtue of the constitution and statutes of Ohio and the decrees of the court of common pleas and Supreme Court of Ohio above mentioned, the plaintiff Irvine, receiver, became invested with the title and ownership in trust for the creditors of the railroad company of all its assets and the rights of its creditors against its stockholders, wherever situated. or held, including the several sums found by the court of common pleas to be due from the stockholders of the railroad company, and among them the sum adjudged and decreed to be due from Elliott as above mentioned, and was authorized, empowered and directed to collect the same by suit in any court of competent jurisdiction whether in Ohio or elsewhere, in his name as such receiver or otherwise; that Irvine duly qualified and entered upon the discharge of his duties as receiver and is duly qualified as receiver for the purposes aforesaid; that at and prior to the time of the incorporation of the railroad company and when Elliott became a stockholder thereof and when the Marriott and Kinsey`suits were commenced in the court of common pleas and thereafter, the constitution of Ohio provided that "dues from corporations shall be secured, by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock"; that during all of said time the statutes provided that "the stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation"; that under the above mentioned constitutional and legislative provisions and the judgments and decrees of the court of common pleas the statutory liability of the defendant here passed to and is now vested in the plaintiff as the representative of the creditors of the railroad company, and the plaintiff now holds title thereto as a trust fund for their benefit; that at and prior to the time of the filing of the Marriott and Kinsey petitions in the court of common pleas Elliott was and has ever since continued to be the owner and holder of the said 325 shares of the capital stock of the railroad company; that the court of common pleas duly found, adjudged and decreed in the consolidated cause that he was duly served with process in such cause by publication, pursuant to the laws of Ohio in such case made and provided, being section 3260 of the revised statutes of Ohio, as amended April 16, 1900 (94 Ohio Laws, p. 359); that the plaintiff by virtue of the constitution and laws of Ohio and his appointment and qualification as receiver in the consolidated cause became and now is the representative of the creditors of the railroad

company and is "vested with the title to all and singular the rights of action possessed by said railroad company and its creditors, including the right of action to recover the indebtedness of said stockholders and the indebtedness of this defendant to the creditors of said company, as hereinabove alleged, and is duly authorized to maintain this action in this court against the defendant herein to recover the sum aforesaid due from and assessed against this defendant" as above mentioned; and that the plaintiff has demanded and been refused payment by the defendant, etc.

The demurrer assigns nine grounds, as follows:

"1. That said declaration is uncertain and insufficient in that it does not aver on the twelfth page of the said declaration at what date an appeal was taken in said cause in the said declaration mentioned, from said decree dated July 17th, 1905, or when said appeal was dismissed by said circuit court for Franklin County, State of Ohio, nor by whom said appeal was so taken and prosecuted.

2. That said declaration is uncertain and insufficient in that it is not stated therein on pages 12 and 13 of said declaration at what date said plaintiff in the cause mentioned in said declaration did take an appeal from said decree dated December 22nd, 1906, to the circuit court for Franklin County and State of Ohio, or when said plaintiff filed an appeal bond as required by the laws of the State of Ohio.

3. That said declaration is uncertain and insufficient in that it is not stated therein on page 13 of said declaration what defendants in said consolidated cause mentioned in said declaration did prosecute said mentioned proceeding on writ of error to said Supreme Court of said State of Ohio, upon which the said mentioned order of the Supreme Court of the State of Ohio of May 11th, 1909, was entered.

4. That it appears by said declaration and by the record in said cause that said plaintiff is barred by the statute of limitations of the State of Ohio against the maintaining of this action, in that suit against said defendant was not brought within eighteen months from the accrual of the cause of action mentioned in said declaration.

5. That it appears by said declaration and the record in said cause that said plaintiff is barred from the maintaining of this action by the statute of limitations of the State of Ohio, in that this suit was not brought within six years from the accrual of the supposed liability or cause of action against this defendant.

6. That it appears by said declaration and the record in said cause that said plaintiff is barred from maintaining this suit by the statute of limitations of the State of Delaware, in that this action was not brought within three years from the accrual of the cause of action against this defendant.

7. That it appears by said declaration and the record in said cause that the statutory procedure of the State of Ohio upon which this action is based was not complied with, and that thereby no cause of action exists against this defendant.

8. That said plaintiff hath no right as a receiver appointed by the courts of Ohio to maintain this action in the circuit court of the United States for the District of Delaware.

9. That the statutory procedure of Ohio is void and legally ineffective as to stockholders who were not personally served with process."

The counsel for the defendant in open court at the hearing and also in his brief of argument said that:

"Of the grounds specially set up by said demurrer, the fifth, seventh and ninth are not insisted upon and no judgment of the court is asked thereon, the same being abandoned so far as this demurrer is concerned."

The defendant thus practically, though impliedly, admits for the purpose of disposing of the demurrer, first, that the Ohio six year limitation is not applicable to this case; second, that the statutory procedure of Ohio upon which this action is based was complied with; and, third, that such statutory procedure is valid and legally effective as to stockholders not personally served with process. Of the remaining causes of demurrer five, namely, Nos. 1, 2, 3, 4 and 6, directly or indirectly involve questions touching the effect upon this action of statutes of limitation or lapse of time, and number 8 challenges the right of the plaintiff as a receiver appointed in Ohio to maintain an action in Delaware to enforce the statutory or double liability of a stockholder of an Ohio corporation. This last cause of demurrer may conveniently be considered first.

[1] Section 3 of article 13 of the Ohio constitution of 1851 provided:

"Dues from corporations shall be secured by such individual liability of the stockholders, and other means, as may be prescribed by law; but, in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, and to a further sum, at least equal in amount to such stock."

This provision continued in force until after the defendant acquired his shares of the capital stock of the railroad company and after the consolidation of the Marriott and Kinsey petitions as above mentioned. This constitutional provision was amended November 3, 1903, so as to read:

"Sec. 3. Dues from private corporations shall be secured by such means as may be prescribed by law, but in no case shall any stockholder be individually liable otherwise than for the unpaid stock owned by him or her."

[2] It is unnecessary, however, in this immediate connection to dwell upon the latter constitutional provision, for the plaintiff's right to maintain this action, if it exists, must rest upon the constitutional provision of 1851 and the legislation enacted thereunder. That provision contemplates legislative action to effect its purpose, and under it the legislature of Ohio by act of May 1, 1852 (50 Ohio Laws, p. 296, § 78), amended April 17, 1854 (52 Ohio Laws, p. 44, § 1), provided, among other things:

"All stockholders of any railroad, turnpike, or plank-road, magnetic telegraph, or bridge company, or any joint stock company, organized under the provisions of this act, shall be deemed and held liable to an amount equal to their stock subscribed, in addition to said stock for the purpose of securing the creditors of such company," etc.

Of this legislative provision the Supreme Court of Ohio in Wright v. McCormack, 17 Ohio St. 87, said:

"The statute adopts the minimum liability allowable by the Constitution, and was intended to make the constitutional provision effective."

[3] And later, section 3258 of the revised statutes of Ohio, in force from 1880 to April 29, 1902, provided:

"The stockholders of a corporation which may be hereafter formed, and such stockholders as are now liable under former statutes, shall be deemed and held liable, in addition to their stock, in an amount equal to the stock

by them subscribed, or otherwise acquired, to the creditors of the corporation, to secure the payment of the debts and liabilities of the corporation."

This section was in force at the time of and prior to and after the incorporation of the railroad company and the acquisition by the defendant of his stock therein and the commencement of the Marriott and Kinsey suits, and consequently the defendant, upon the acquisition of his stock, assumed and became subject to the statutory double liability. Bernheimer v. Converse, 206 U. S. 516, 27 Sup. Ct. 755, 51 L. Ed. 1163; Howarth v. Lombard, 175 Mass. 570, 56 N. E. 888, 49 L. R. A. 301. It was a liability imposed upon all the stockholders. Section 3260 of the revised statutes, dealing with the subject of remedial procedure for the enforcement of the double liability, was as follows:

"Sec. 3260. A stockholder or creditor may enforce such liability by action jointly against all the holders or owners of stock, which action shall be for the benefit of all the creditors of the corporation and against all persons liable as stockholders; and in such action there shall be found and determined the amount payable by each person liable as stockholder on all the indebtedness of the corporation, in which adjudication no costs shall be taxed to nor collected of any stockholder to an amount which, together with the amount to be paid on said indebtedness, will exceed the amount of the stock on which he is liable."

This section remained in force from 1880 until March 22, 1894 (91 Ohio Laws, p. 88), when it was amended by the addition of a proviso, which, so far as may be pertinent to this case, was as follows:

"Provided, that in any such action the plaintiff may file in the court a sworn statement that a stockholder or stockholders or the legal representatives of a deceased stockholder' have not been summoned, giving their residence if known, and that it is impracticable to secure service of summons upon such stockholder or such legal representatives of a stockholder, and remitting from the claim of the plaintiff or of other creditors consenting, so much as may be found payable by such stockholders not served with summons except those who may be insolvent or non-resident of the state, and judgment shall be rendered against the stockholders who have been served with summons, for the pro rata amount for which they would be liable if all solvent stockholders resident of the state were served with summons," etc.

[4] The court of common pleas of Ohio is vested with common law and chancery jurisdiction. Under the foregoing legislation the enforcement there of the statutory double liability of stockholders of a corporation of that state involved equitable procedure. This resulted from the essential nature of such liability. It did not constitute a primary fund or resource for the payment of the corporate indebtedness, but was only a collateral security for the exclusive benefit of the creditors and not to be availed of while other means of compelling payment remained open, whether through the collection. of unpaid stock subscriptions or the seizure and sale of other corporate assets, nor until after the ascertainment, through an account, of a proper and equitable basis for an assessment against all the stockholders respectively. In Zieverink v. Kemper, 50 Ohio St. 208, 34 N. E. 250, the court, referring to the procedure under section 3260 before its amendment to enforce the double liability said:

"We think there is abundant authority in the statutes for the appointment of a receiver in an action to collect the statutory liability of stockholders,

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