The Sunday Creek Coal and Iron Company grew out of the prior company named in the defense, and seems to have acquired the property and assumed the obligations of that company. The obligation to Gifford in regard to these bonds was one of them. The bonds had been received from him as an accommodation, no consideration being paid for the loan. The obligation assumed by the bailee was to cut off the coupons as they matured, sell them, and remit the proceeds to Gifford, and return the bonds on thirty days' notice. The obligation arose ex locato, and no liability beyond this accrued to Gifford as against the company until, upon demand, it refused to return the bonds, which was June 15, 1884; so that, as a matter of law and fact, the liability of the company for the conversion accrued to Gifford after Barrick became the owner of all his stock.

But in holding the facts pleaded insufficient to constitute a defense, we do not place our decision on this ground. Whilst there are some resemblances between the stockholders of a corporation and the members of a partnership, there are few that are real, and no inferences can be drawn therefrom as to the rights of creditors against stockholders upon their individual liability: Taylor on Private Corporations, sec. 716. A new member of a firm is not, in the absence of agreement, liable for the debts of the firm contracted before he became a member. The addition of a new member makes a new firm. A change, however, in the stockholders of a corporation has no legal effect upon its status. It remains, through all changes in the personnel of its stockholders, the same legal entity, possessed of the same rights, and subject to the same liabilities. When one purchases stock in a corporation, he acquires a fractional interest in the capital stock and assets of the company, proportionate to the amount of his stock. If there is a surplus, he acquires an equivalent interest in it, and is entitled to dividends when they are earned; but if there should happen to be a deficiency, the maxim applies, Qui sentit commodum sentire debet et onus, and is therefore required to contribute his share to the discharge of the common burden. The application of this principle is not varied by the time when the owner acquired his stock. The right, with the correlative duty, is an incident of the stock. There is no difference, in this regard, between the opinion of the majority and that of the minority in the case of Brown v. Hitchcock, 36 Ohio St. 667. In both, it is held that the individual liability of

805 stockholders to creditors is to be discharged, primarily, by those who are the owners of the stock at the time the right to assert it accrues. But in the opinion of the majority it was held that, in the case of the insolvency of an existing owner, a person from whom the insolvent existing owner obtained the stock by assignment, either mediately or immediately, may be made liable for such debts as may have been contracted while he remained owner; the minority holding that the obligation attached exclusively to those who are holders of the stock at the winding up of the company, or when the right is asserted by creditors.

If, then, an existing stockholder is solvent, it is immaterial, so far as his liability to creditors is concerned, when he became the owner of the stock, or from whom he acquired it. As such stockholder he is individually liable for the debts of the company to the extent limited by the statute. Such liability attaches to every share of stock issued by a company; the stock and the liability go together, so that whoever owns the stock must sustain the burden when the company becomes insolvent.

The plaintiff in error relies upon Bonewitz v. Van Wert Co. Bank, 41 Ohio St. 78. No such question arose in that case. All that was there decided is, that a finding that two of the stockholders did not own stock at the time the indebtedness of the plaintiff accrued did not authorize a judgment in their favor releasing them from liability. This was right, and determined the question before the court. The additional remark, that "if the finding had been that the stock they held when the action was commenced had not been sold by the corporation until after the debt of the plaintiff had accrued, the judgment would have been proper," was simply a misleading statement, outside of the case, and no way necessary to its determination.

Judgment affirmed.

CORPORATIONS - ACTION BY Creditor when CORPORATION IS Insolvent. - An action at law by a single creditor will lie against any stockholder of an insolvent corporation to enforce an individual liability created by its charter: Schalucky v. Field, 124 Ill. 617; 7 Am. St. Rep. 399. As to the time within which such actions must be brought, see Hyman v. Coleman, 82 Cal 650; 16 Am. St. Rep. 178, and note; Corning v. McCullough, 1 N. Y. 47; 49 Am. Dec. 287, and note. For a thorough discussion of the statutory liability of stockholders to creditors, and its enforcement, see extended note to Thompson v. Reno Sav. Bank, 3 Am. St. Rep. 834-872, wherein is considered the question of whether a stockholder's liability is primary, or subject to other

proceedings first taken against the corporation; compare note to Prince v. Lynch, 99 Am. Dec. 432-435. Ordinarily, the creditor must obtain a judgment against the corporation, and the execution issued thereon be returned nulla bona, before a bill in equity will lie against the stockholders: Payne v. Bullard, 23 Miss. 88; 55 Am. Dec. 74, and note; but this rule does not apply when the corporation is insolvent: Note to Germantown etc. R'y Co. v. Fitler, 100 Am. Dec. 552-557.

STANLEY V. STANLEY.

[47 OHIO STATE, 225.]

STATUTE OF LIMITATIONS-ABSENCE FROM STATE. If a defendant is absent from the state when a cause of action accrues against him, his occasional or frequent visits to the state, giving the plaintiff an oppor. tunity, by the exercise of ordinary diligence, to commence an action against him, will be of no avail to him under a plea of the statute of limitations, however open and notorious his visits may have been, unless he has been within the state and the jurisdiction of her courts for the full period limited by the statute, either continuously or in the aggregate. STATUTE OF LIMITATIONS - ABSENCE FROM STATE. The statute of limitations does not run in favor of a defendant while he is absent from the state, no matter if he was so absent when the cause of action accrued; and whenever he departs from the state after having come into it, the running of the statute is suspended from that time and during his absence, whether the cause of action first accrued while he was in. or while he was absent from, the state.

S. S. Knowles, for the plaintiff in error.

A. D. Follett, for the defendant in error.

MINSHALL, C. J. The question in this case arises upon the defense in the answer to which the demurrer was sustained. The defense was intended to avoid the effect of the averments in the petition as to the absence of the decedent from the state at the time the plaintiff's causes of action accrued, and his continued absence thereafter until the time of his death. The question requires a construction of the following section of the Revised Statutes, relating to the statute of limitations:

"Sec. 4989. If, when a cause of action accrues against a person, he is out of the state, or has absconded, or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought."

It is necessary to observe that it is not claimed in the defense to which the demurrer was overruled that the causes of action to which it was pleaded, or any of them, arose in the state of West Virginia, the residence of the deceased, or were to be performed there. Such averments were made as separate grounds of defense, and were met by denials. The gist of the defense to which the demurrer was interposed is, that although the decedent resided in the state of West Virginia when the causes of action accrued, yet he frequently came into this state, and within the jurisdiction of the courts of the county in which the plaintiff resided, after the causes of action accrued, and more than six years before the action was commenced; and that these occasions were attended with such circumstances of notoriety that the plaintiff could, with the exercise of ordinary diligence, have obtained service upon him. The defense admits that the deceased was a non-resident of the state at the time the causes of action accrued; but it is claimed that if, at any time thereafter, he came into the state so that the plaintiff night have commenced his action, the statute began to run, and continued to do so, though he may have departed the state the next day, and have remained out of it the residue of his life.

We do not so construe this statute. Where a defendant is out of the state when a cause of action accrues against him, our construction is, that the statute does not begin to run until he comes into the state. It then begins to run against him, and if he remain in the state, it will be barred in the period limited from that time. But if, after he comes into the state, he again depart from it, the running of the statute is suspended during his absence. It is not necessary that we should determine in this case whether absence upon business the defendant continuing a resident of the state-is sufficient, or whether it must be limited to absence as a nonresident of the state, for it is admitted that the decedent was a resident of the state of West Virginia, and his absence, therefore, referable to that fact.

The design of the statute is to give to the plaintiff the full period of the limitation, in available time, for the commencement of his action; so that, in ascertaining this period, the time the defendant is out of the state is not computed as any part of the time given him in which to commence his action. This is in close analogy to the Roman law, which, in like cases, counted only the available days, tempus utile, on which activity

was possible, in ascertaining whether an action was barred by limitation or not; and days on which the action was hindered by the absence of the defendant were excluded from the computation of the term: Poste's Gaius, 255.

This is the only rational construction that can be placed on the statute, and makes it consistent with itself. Thus in the second clause, it is provided, in so many words, that if after the cause of action accrues, the defendant depart from the state, "the time of his absence . . . . shall not be computed as any part of the period within which the action must be brought." It could not, then, have been intended by the legislature that where a defendant was absent from the state at the time a cause of action accrued, his return to the state would not only set the statute to running in his faver, but that it would continue to run, whether he remained in the state or not.

The first clause provides for the case where the defendant is absent from the state when the cause of action accrues; the second for the case where he departs from the state after it has accrued. In the first, the statute begins to run when he comes into the state; in the second, it ceases to run, and is suspended until he returns to the state. The purpose, then, of the statute is perfectly plain: Presence of the defendant within the state, so that he may be sued, avails in his favor; absence from the state, whether at the accruing of the action or afterwards, suspends the running of the statute.

This is the first time the precise question seems to have arisen in this court, so that none of its previous decisions afford any light in determining it. But most of the other states have statutes of limitations with provisions similar in this regard to our own, which have been frequently construed by their courts; and the general result of these decisions is, that when a defendant is absent from the state when a cause of action accrues against him, his occasional or frequent visits to the state will be of no avail to him under a plea of the statute of limitations, however open and notorious his visits may have been, unless he has been in the state, and the jurisdiction of its courts, for the full period limited by the statute, either continuously or in the aggregate.

The statute of the state of Maine is substantially the same as our own; and there, in a suit on a promissory note, which the defendant claimed was barred, he offered to show that though he lived in the province of New Brunswick, he was frequently in the state, to the knowledge of the plaintiff.