quiring action to be brought within two years Is not, strictly speaking, a statute of limitations, which must be specifically pleaded, but is an absolute bar, not removable by any of the ordinary exceptions of that statute."

stituted, and extended it to the state courts; but it is nevertheless a federal law. There is no provision in the federal act giving the right, upon voluntary nonsuit, to institute a new action after the expiration of the two

years.

A similar proposition was passed upon by the federal Circuit Court of Appeals (Eighth Circuit) in the case of Tom J. Gardner Lumber Company v. Boomer et al., 106 C. C. A. Judgment of the Court of Civil Appeals, and

It results that we find no error in the

it is affirmed.

LONG v. STATE.

168, 183 Fed. 730. That was an action under the federal statute requiring bonds to be given by contractors doing government work for the benefit of furnishers of material, (Supreme Court of Tennessee. Oct. 2, 1915.) etc., being an act of Congress of February CRIMINAL LAW 854-SEPARATION OF JURY 24, 1905 (33 Stat. 811, c. 778 [U. S. Comp. -EFFECT. St. 1913, § 6923]), in which act a limitation Notwithstanding accused consented to a was fixed of one year after the performance separation of the jury, a conviction of felony by such jury cannot be upheld; Const. art. 1, of final settlement of contract for the en-§ 9, providing that in all criminal cases accused forcement of the right given. Suit had been shall be entitled to a speedy public trial by an brought in the state court of Colorado, and impartial jury, precluding separation of the jury in criminal prosecutions for felony or where dismissed, and was again brought in the fed- the death penalty may be assessed. eral court, after the lapse of one year. Plaintiff relied upon the Colorado statute, which permitted the commencement of a new action within one year after dismissal without trial upon the merits. It was insisted that the state statute should govern under section 721, Revised Statutes of the United States (U. S. Comp. St. 1913, § 1538), which provides that:

"The laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."

The federal court refused to adopt the application of the Colorado statute and used the following language:

[Ed. Note.-For other cases, see Criminal Law, Cent.Dig. §§ 2039-2047; Dec.Dig. 854.] Appeal from Circuit Court, Roane County; S. C. Brown, Judge.

Bud Long was convicted of abduction, and he appeals. Reversed and remanded.

J. W. Staples, of Wartburg, for appellant. Asst. Atty. Gen., for the State.

BUCHANAN, J. Long was convicted of the crime of abduction and sentenced to serve a term in the penitentiary Section 6462, Shannon's Code 1896. He has appealed to this court and assigned errors.

The several assignments of error are based on matters which we cannot consider, be"When the United States have enacted a stat-cause a bill of exceptions was not seasonably ute of limitations as to a cause of action creat- filed. Dunn v. State, 127 Tenn. (19 Cates) ed by them, there is no room for the applica- 267, 154 S. W. 969. However, it appears on tion of the statute of limitations prescribed by another sovereignty. It is only where the Con- the technical record, to which our attention stitution, treaties, and statutes of the United is called by the brief filed on his behalf, that States do not otherwise require or provide that the jury, upon his trial, after being impanelthe laws of the several states shall be regarded ed and sworn, and after hearing a part of the as rules of decisions in trials at common law in the courts of the United States in cases where evidence, was respited until the following they apply." morning, "and by agreement of the Attorney We think these authorities are sound. It General and the defendant and his counsel was not the intention of Congress, upon en- the jury was allowed to go without an offiactment of this law, to permit any variation cer." The only reasonable construction to of its terms by the Legislatures of the states; be placed on what the record shows is that but the intention is clear, from the rules of there was a total separation of the jury. It law applying in such matters, as well as up- was allowed to dissolve into its component on reason, that Congress, in taking over the parts, and each unit composing it to mingle control of this whole subject, intended that at will with his fellow citizens. On the folthe limitation of two years was a condition lowing day the same jury, as the record upon the right to sue at all. The statute shows, reassembled in court, and the hearing created a right of action which did not be- of the cause was resumed. It does not apfore exist. The condition to that right was pear by whom the conduct above during the that suit should be instituted within two trial was suggested, whether by the defendyears from the date the right of action ac- ant, his counsel, the Attorney General, the crued. While Congress gave the right to court, or the jury; and no question was made institute the action in the state courts, this on the verdict in the motion for new trial, does not change the rule so well settled in nor is any account given by the record of other actions of like character predicated the conduct of the units composing the jury upon federal statutes. The act broadened during the time of the separation. Can such the forum within which suit might be in- a verdict, and the judgment thereon based, be

allowed to stand by this court? We answer, | The judgment of the lower court was revers No. Manifestly the fair and impartial trial ed, and the cause remanded. Wesley v. State, guaranteed to the defendant under the Con- 30 Tenn. (11 Humph.) 502. stitution was not given him. The Constitution provides:

"That the right of trial by jury shall remain inviolate." Article 1, § 6.

"That no man shall be * deprived of his life, liberty, or property but by the judgment of his peers or the law of the land." Article 1, § 8.

*

That in all criminal prosecutions, the accused hath the right to * * a speedy public trial, by an impartial jury." Article 1, § 9.

In an early and perhaps leading case on this question it was said:

"That the person accused may have the full benefit of a judgment by his peers, it is absolutely necessary that the minds of the jurors should not have prejudged his case, that no impression should be made to operate on them, except what is derived from the testimony given in court, and that they should continue impartial and unbiased."

The above ruling was extended to a felony case where the punishment provided was not capital upon identical reasoning in Wiley v. State, 1 Swan (31 Tenn.) 257.

For general authority on the point here involved, see Armstrong v. State, 2 Okl. Cr. 567, 103 Pac. 658, 24 L. R. A. (N. S.) 776, and the case note thereon.

We find in our cases, in respect of the particular question here involved, no modification of the ruling made in Wesley v. State and in Wiley v. State, supra.

We think the reasoning of those cases is sound and should be adhered to. The rule established by them, as indicated in one of them, does not apply in cases of misdemeanor, but we think the rule in its full strictness should be applied in cases punishable by And it was pointed out in that case that imprisonment in the penitentiary or by one of the means necessary to securing a fair death; and, when it appears that a separaand impartial trial by a jury of the defend- tion of the jury, such as is shown by the ant's peers was not to permit the jury to sep-record in this case, has taken place during arate from each other, or mingle with the balance of the community after it had been sworn. McLain v. State, 18 Tenn. (10 Yerg.) 240, 31 Am. Dec. 573. See, also, Stone v. State, 23 Tenn. (4 Humph.) 27; Hines v. State, 27 Tenn. (8 Humph.) 597; Troxdale v. State, 28 Tenn. (9 Humph.) 412.

After the decision of the foregoing cases a prisoner charged with a capital crime was put upon trial, and on the first day thereof eight jurors were impaneled and sworn, who, with the consent of the defendant and the Attorney General, were by the court permitted to disperse until the next morning. On that day two other jurors were selected, and they, with the eight previously chosen, were permitted with like consent to disperse until Monday morning thereafter, on which day two other jurors were selected, and, the jury being thus complete, the trial proceeded regularly. The trial resulted in the defendant's conviction, and on his appeal to this court, after calling attention to the rule laid down in McLain v. State, supra, it was said:

the trial of a cause, the conduct of the jury during the separation being wholly unexplained, the verdict is ipso facto vitiated, and no judgment based thereon should be allowed to

stand.

It is suggested on the brief for the state that the consent of the defendant to the separation of the jury should work an affirmance of the judgment, and, as supporting that view, we are cited to Preston v. State, 115 Tenn. (7 Cates) 343, 90 S. W. 856, 5 Ann. Cas. 722, and Hobbs v. State, 121 Tenn. (13 Cates) 413, 118 S. W. 262, 17 Ann. Cas. 177. But in the former of these cases the chief complaint was that the oath to the jurors had not been administered by the clerk in the formal way, and in the latter of these cases the point made was that the minute entry failed to show that the jury was sworn. We do not regard either of these cases as in point. In each of them the error complained of was one merely of procedure, and was properly held not to have vitiated the verdict. But in the present case the total separation of the jury, wholly unexplained, is an error of substance going to the very core of the right of the state to deprive the defendant of his liberty.

"In the case before us the separation was permitted by the court, and consented to by the defendant, and therefore it is supposed the principles above do not apply. If the law requires the jury in a capital case to be kept together, the court cannot dispense with this requisition The present case is not to be taken as in of law, nor ought the consent of the prisoner conflict with those where a separation of the in a capital case to be taken. * judge cannot lawfully dispense with the rule that the jury must be kept together, nor ought the consent of a prisoner in such case to be taken."

** The

It was also pointed out that, where the charge against the defendant was one calculated to excite the community against him, the rules of law for securing an impartial trial of the case should be firmly enforced.

jury has occurred, but it appeared that the verdict of the jury was unaffected by the separation. King v. State, 87 Tenn. (3 Pick.) 304, 10 S. W. 509, 3 L. R. A. 210; King v. State, 91 Tenn. (7 Pick.) 617, 20 S. W. 169; Sherman v. State, 125 Tenn. (17 Cates) 54, 140 S. W. 209. No showing which can save the verdict appears in the transcript before us. Reverse and remand.

Rev. St. Me. 1903, c. 47, § 6, providing for the incorporation of companies to carry passengers and freight in other states, and that "in all such cases the articles of agreement and certificate of organization shall state that such business is to be carried on only in states and jurisdictions when and where permissible under the laws thereof," is not void as attempting to create a corporation in one state in which it is The company, in all its sales of preferred prohibited to operate, but is merely restrictive stock, issued an additional 50 per cent. of of the right of such corporation to do business, common stock as a bonus. Its entire capi

tal, when organized, March 17, 1906, was $50,000, but this was increased by amendment of its charter to $1,000,000; the stock being divided equally, common and preferred.

Its charter was filed in Tennessee with the secretary of state.

for services rendered to such corporation and the stock so issued shall be full paid stock and not liable to any further call or payment thereon; and in the absence of actual fraud in the transaction, the judgment of the directors as to the value of the * services rendered, shall be conclusive."

Chapter 47, § 87:

In addition to a bonded debt of $350,000, there was established and judicially determined unpaid unsecured debts of $119,000, at the time the present suit was brought. ration is declared to be and stands for the secu"The capital stock subscribed for any corpoUnder a general creditors' bill its entire as-rity of all creditors thereof; and no payment

sets were administered and exhausted in payment on certain secured debts, leaving all unsecured debts unpaid.

Thereupon the receiver was ordered to institute such action or actions as may be necessary to recover on account of unpaid stock subscriptions as may be due, for the common benefit of all who may be creditors in the receivership cause, and entitled to have said assets collected.

upon any subscription to or agreement for the capital stock of any corporation, shall be deemed a payment within the purview of this chapother matter or thing at a bona fide and fair ter, unless bona fide made in cash, or in some valuation thereof."

Chapter 47, § 89:

"Any person having such judgment [i. e., on claims enumerated in section 881, or any such trustees, receivers or other persons appointed to close up the affairs of an insolvent corporation, may, within two years after their right of The present suit is brought to collect of action herein given accrues, commence an action defendant on behalf of the unsecured credi- on the case or bill in equity, without demand or tors the $5,500, being the amount of the other previous formalities, against any persons, face value of the capital stock of the trac-wise severally, who have subscribed for or if a bill in equity, jointly or severally, othertion company, issued to defendant, for which agreed to take stock in said corporation and it is conceded he did not pay anything, either have not paid for the same; ** and in in money or services. such action they may recover the amount of the drawn, not exceeding the amounts of said judgcapital stock so remaining unpaid or withments or the deficiency of the assets of such insolvent corporation. solvent corporation. But no stockholder is liable for the debts of the corporation not contracted during his ownership of such unpaid stock, nor for any mortgage debt of said corporation; and no action for the recovery of the amounts herein before mentioned shall be maintained against a stockholder unless proceedings to obtain judgment against the corporation are commenced during the ownership of such stock, or within one year after its transfer by such stockholder is recorded on the corporation books."

The chancellor rendered a decree against defendant for $5,500, with interest from June 24, 1910, date of the last delivery of stock to defendant.

The defendant has appealed, and upon his assignment of errors presents a number of propositions to determine.

[1] It was not necessary to make defendant liable to the responsibilities of a stockholder that he should have formally subscribed for stock. The fact that he receipted for, accepted, and held the certificates, rendered him amenable to all the responsibilities attaching in favor of unsecured creditors. Upton v. Tribilcock, 95 U. S. 45, 47, 23 L. Ed. 203; Chubb v. Upton, 95 U. S. 665, 24 L. Ed. 523; Sanger v. Upton, 91 U. S. 56, 23 L. Ed. 220; Thompson's Liability of Stockholders, § 105; Jackson v. Traer, 64 Iowa, 469, 20 N. W. 764, 52 Am. Rep. 456; Calumet Paper Co. v. Stotts, 96 Iowa, 147, 64 N. W. 782,

59 Am. Rep. 362; Clevenger v. Moore, 71 N. J. Law, 148, 58 Atl. 88; Dunn v. Howe (C. C.) 96 Fed. 160; Barron v. Burrill, 86 Me. 66, 29 Atl. 939; Id., 86 Me. 72, 29 Atl. 938 (two cases); Cook on Corporations, p. 251, § 52; Shickle v. Watts, 94 Mo. 410, 7

S. W. 274.

The two cases of Barron v. Burrill are especially appropriate to this question. It would be highly dangerous to absolve a stockholder from liability because it appeared

from his own statements that he did not remember or did not know that he had receipted for and held bonus stock in a corporation. Very many might escape the liability if this were so.

[2] It is said that the laws of Maine were not properly pleaded.

It is necessary to allege and prove the statutes of another state in order to pursue a remedy afforded or enforce a liability existing under such laws. N. & C. R. Co. v.

Sprayberry, 9 Heisk. 852; Railroad v. Fos-
ter, 10 Lea, 351; Railway Co. v. Lewis, 89
Fletcher, 94 Tenn. 1, 28 S. W. 1099; Harris
Tenn. 235, 14 S. W. 603; Kelley Bros. v.

v. Water & Lt. Co., 114 Tenn. 328, 348, 85
S. W. 897; Mandel v. Swan, etc., Co., 154

Ill. 177, 40 N. E. 462, 27 L. R. A. 313, 45 Am.
St. Rep. 124; Ball v. Anderson, 196 Pa. 86,
46 Atl. 366, 79 Am. St. Rep. 693; Rice v.
Merrimack Hosiery Co., 56 N. H. 114; Salt
Lake, etc., Bank v. Hendrickson, 40 N. J.
Law, 52; Nashua, etc., Bank v. Anglo-Amer.
etc., Co., 189 U. S. 221, 23 Sup. Ct. 517, 47
L. Ed. 782.

We think, however, the complainant was excused in this case from setting up the statutes and laws of Maine:

(a) Because the answer of defendant pleads those laws, averring:

"The defendant claims that the rights of the

What are the laws of Maine upon the sub-parties are to be determined by the laws of ject? We quote from the Code of Maine,

Maine, which, without further proof, may be

utes, and decisions of the Supreme Court of, ance to certain named individuals, including Maine."

(b) Because the agreed stipulation of proofs made by the parties filed as exhibit a copy of the Revised Statutes of the State of Maine in relation to unpaid stock subscriptions. The only qualification to the agreement was that:

defendant, each $1,000, "in consideration of the services rendered by the several parties hereinafter named during the past year."

It is argued that inasmuch as it appears that Mr. Farnsworth was a man of wealth and prominence in Memphis, and that other men of high standing subscribed for stock

"Defendant did not know the Maine laws and subsequent to the time Mr. Farnsworth did, denies their materiality."

There is no exception by defendant to the introduction of the laws on the ground that they were not pleaded.

'Defendant did not set forth the statutes of Maine in his answer, but insisted they were controlling, and agreed that they may be taken and treated as shown in the public statutes and decisions of the Supreme Court of Maine. He will not be allowed on appeal to take a position so contrary to his pleading and proposed agreement made of record. [3] The insistence is, further, that the action cannot be maintained, except under the statutes of Maine, and these laws only provide a remedy in case of "subscription to or agreement for the capital stock." In Barron v. Burrill, 86 Me. 72, 29 Atl. 938, involving the question, the court said:

"An actual taking of shares is equivalent to subscriptions or an agreement to take. Either comes within the meaning of the statute."

That was a rational and practical construction of the statute. Defendant received and receipted for the shares sued on, and he should not be heard to say that he did not

know or remember of the transaction.

[4] Another proposition presented is that the stock was issued to defendant as a result of the action of the board of directors on account of what they thought was or would be valuable services rendered by the defendant, and no proper pleading impeached that action.

The Maine Code (Rev. St. 1903, c. 47, § 50), hereinbefore set out, authorizes the corporation to "issue stock for services rendered to the corporation, and the stock so issued shall be fully paid stock and not liable to any future call or payment thereon," and that "in the absence of actual fraud in the transaction the judgment of the directors transaction the judgment of the directors as to the value of the services shall be con

it is clear that the company considered the connection of Mr. Farnsworth with the company and his investment therein as the rendition of such services as would justify the company in issuing to him the common stock. Mr. Farnsworth testified that he did not render any services and paid nothing for the stock, except $6,000 for the $6,000 preferred stock. So on his own statement, nothing was paid in money or services for $1,000 of preferred stock and $4,500 of common stock is-. sued to him. But his learned counsel says for him that, though he rendered no service considered valuable by him, the common stock was issued in the belief of the officials of the company that he had rendered valuable services, and that their judgment under the Maine act cannot be impeached, except under proper averment and proof to impute actual fraud.

The issuance of common stock was to all purchasers of preferred stock, and cannot be considered as in contemplation of services rendered. In reality it was issued purely as a bonus, as was also the issuance of the $1,000 of preferred stock issued to defendant, for which he paid nothing. The issuance of the stock for pretended services was sufficiently attacked as a fraud, for while it is not so denominated in the bill in exact words, yet the issuance of all this stock is attacked, and it is distinctly averred that no consideration was paid for it. This is a sufficient attack within the Maine statute.

[5] The remedy of the creditor to finally look to stockholders who have not paid in full for their stock after the other assets have proven inadequate is applied by the American courts generally. The capital stock, especially unpaid subscriptions, conefit of creditors, and the stockholders may stitute, in equity, a trust fund for the benefit of creditors, and the stockholders may be compelled to make payment upon his stock The bill charged in effect that for the to its par, if so much is necessary to pay stock here in question Farnsworth rendered debts. Shannon's Code, § 2058; Sweeney v. no service to the company which was a valu- Railroad, 118 Tenn. 297, 314, 100 S. W. 732; no service to the company which was a valu-Jones v. Whitworth, 94 Tenn. 602, 30 S. W. abie consideration, thereby impeaching the pretended consideration of services rendered. 736; Shields v. Clifton Land Co., 94 Tenn. The proof showed that on April 19, 1906, a resolution was passed by the board of directors providing:

clusive."

123, 28 S. W. 668, 26 L. R. A. 509, 45 Am. St.

Rep. 700; Cartwright v. Dickinson, 88 Tenn. 476, 12 S. W. 1030, 7 L. R. A. 706, 17 Am. St. "That the president and secretary be directed Rep. 910; Railroad v. Parks, 86 Tenn. 560, to issue every subscriber of one share of pre- 8 S. W. 842; Morrow v. Iron & Steel Co., 87 ferred stock a like amount of common stock up- Tenn. 265, 10 S. W. 495, 3 L. R. A. 37, 10 on the payment in full of the preferred stock." Am. St. Rep. 658; Chase v. Railroad Co., 5 It also appeared that $1,000 of the common Lea, 415; Kelley v. Fletcher, 94 Tenn. 1, 28 stock was issued to defendant after a resolu- S. W. 1099; Upton v. Tribilcock, 91 U. S.