called for an opinion from the witness from "all that you know about him yourself," the caveatees objected on the ground that no sufficient basis had been laid for that portion of the question, and that the facts re lied upon in this particular should be first adduced. The court sustained the objection and caveators preserved an exception.

We agree with the court of appeals that the trial court did not err in holding that portion of the question objectionable, and, if so, the question as framed could not properly have been allowed to be propounded. though caveators were left free to put it with the objectionable words omitted. Clearly, the opinion of the witness from facts he did not disclose was inadmissible. If he knew anything about the deceased other than what he had stated, which aided him in arriving at a conclusion, that knowledge should have been developed. In that particular the question assumed the existence of facts for which there was no foundation in the evidence.

So far as the conduct of the trial was concerned, we find no reversible error.

on the assumption that the trial and verdict were absolutely void because of the incompetency of the juror.

By 872 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 666), relating to the District of Columbia, as amended by the act of March 1, 1889 (25 Stat. at L. 749, chap. 308), it is provided: "No person shall be competent to act as a juror unless he be a citizen of the United States, a resident of the District of Columbia, over twenty-one and under sixty-five years of age, and a good and lawful man, who has never been convicted of a felony or misdemeanor involving moral turpitude."

Treating the application as open to consideration by reason of the discovery of the existence of the alleged objection after verdict and judgment, but as amounting to no more than a motion for new trial made in apt time, it was within the discretion of the trial court to grant or deny it, and the court of appeals held that the order denying it was not appealable. But the court also held that the discretion of the trial court was properly exercised; that there On July 16, 1900, twenty days after the was not only no evidence in support of the decree was entered, caveators moved that charges of "fraud, undue influence, circumthat decree be vacated on the ground that vention, or coercion," which was conceded, one of the jurors was disqualified for service but that "the charge of mental unsoundon the jury by the fact that he was under ness is wholly unsustained and without any the age of twenty-one years, and by the fact support whatever in the testimony;" and that he had several times been convicted of that the trial court would have been fully the crime of petit larceny in the police justified in peremptorily directing a verdict court of the District. The motion was sup- on this issue as well as on the others, as ported by transcripts from the records of that court in the order appealed from inthe police court, and by affidavits, sustain-timated it would have done if requested. ing both disqualifications, the affidavits also In short, the two courts agreed that the showing that at the beginning of the trial term of the court at which they had been summoned the jurors had all been examined on their voir dire by the presiding justice as to their qualifications to serve on the jury; that the juror now charged to be disqualified had then and there falsely answered that he was over the age of twentyone years, and had never been convicted of crime; that one of the counsel for the caveators was present in court at the time of such examination; and that the falsehood of the statements of the juror in question was not known to the caveators or their counsel until after the entry of the order now sought to be vacated. The motion to vacate was denied, the record stating "the court further being of opinion that at the trial there was no evidence of mental incom-rors returned and empaneled, though the petency, fraud, or undue influence."

From this order the caveators took their second appeal.

Viewed as an ordinary motion for a new trial, the motion was not seasonably made under the rules, nor is it contended that the judgment came within the Maryland act of 1787, chap. 9, § 6, 2 Kilty; (Spalding v. Crawford, 3 App. D. C. 361), as having been obtained by fraud, deceit, surprise, or irregularity in the sense of that statute. But it rests on the power of the court to set aside a judgment at the term at which it is rendered under circumstances calling for the exercise of its discretion in that regard, or

facts were with the caveatees, and, unless clearly erroneous, which does not appear, we should accept their finding. Towson v. Moore, 173 U. S. 17, 25, 43 L ed. 597, 601, 19 Sup. Ct. Rep. 332.

And as the verdict was the only verdict that could be rendered consistently with the facts, the presence of this juror in the box could not have operated to the prejudice of plaintiffs in error.

In Wassum v. Feeney, 121 Mass. 93, 23 Am. Rep. 258, the rule that "when a party has had an opportunity of challenge, no disqualification of a juror entitles him to a new trial after verdict," was applied, and it was held that "a verdict will not be set aside because one of the jurors was an infant, where his name was on the list of ju

losing party did not know of the infancy until after the verdict." And Mr. Justice Gray, then Chief Justice of Massachusetts, delivering the opinion, cited, among other cases, Hill v. Yates, 12 East, 229, where the son of a juryman unlawfully served in his father's place, and pointed out that Lord Ellenborough there "said that he had mentioned the case to all the judges, and they were all of opinion that it was a matter within their discretion to grant or refuse a new trial on such a ground; that if no injustice had been done, they would not interfere in this mode."

Wassum v. Feeney was cited with ap

0

2.

is not authorized to maintain an action to enforce the liability of a stockholder, by Kan. Gen. Stat. 1868, § 32, 44, smce that act made the liability of the stockholder, not an asset of the corporation, but an asset which a creditor of the corporation alone could recover for his individual benefit to the extent required to pay a judgment ob tained by him against the corporation.

The remedy against a stockholder of an insolvent corporation, given to the receiver of its assets by Kan. Laws 1898, chap. 10, cannot be enforced until such receiver has first brought suit against the corporation and all resident stockholders, in order to fix the sum required to pay the corporate debts.

proval and quoted from in Kohl v. Lehl back, 160 U. s. 293, 301, 40 L. ed. 432, 435, 16 Sup. Ct. Rep. 304, as in accordance with the great weight of authority. This case involved the disqualification of alienage, but did not require the determination of the question, "whether, where the defendant is without fault and may have been prejudiced, a new trial may not be granted on such a ground," though it was referred to. Garrett v. Weinberg, 54 S. C. 127, 31 S. E. 341, is relied on by plaintiffs in error as ruling in a civil case that a new trial should be granted when a disqualified juror sat, the parties or their attorneys not knowing of the disqualification until after verdict. But that was a case of a motion for new trial made in the ordinary way, and the juror was held disqualified under the express provisions of the Constitution of the state, which in that respect were held to be mandatory, so that the jury was not a "constitutional jury," but the court did not intimate that the incompetency rendered the verdict and judgment void, and, on the contrary, treated ignorance of the fact until Argued and Submitted November 4, 1902. after trial as material.

In Kohl v. Lehlback we held that "the

or

3.

A Federal court cannot enforce the statutory liability of a nonresident stockholder of a foreign corporation at the suit of a receiver of its assets, where the latter has not first taken the steps which the statutes of the state, as construed by its courts, make a prerequisite to any action against an individual stockholder.

[No. 66.]

Decided December 1, 1902.

A CERTIFICATE from the United

Statement by Mr. Justice White:

disqualification of alienage is cause of chal-'States Circuit Court of Appeals for the lenge propter defectum, on account of perSecond Circuit presenting a question as to sonal objection, and if voluntarily, through negligence, or want of knowledge, the right of a receiver of a Kansas corporasuch objection fails to be insisted on, the tion to maintain an action to enforce the conclusion that the judgment is thereby in- statutory liability of a nonresident stockvalidated is wholly inadmissible. The de-holder. Answered in the negative. fect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it." Hollingsworth v. Duane, Wall, C. C. 147, Fed. Cas. No. 6,618, was referred to, where the court placed alienage, infancy, infamy, and affinity, in the same category. See Goad v. State, 106 Tenn. 175, 61 S. W. 79; State v. Powers, 10 Or. 145, 45 Am. Rep. 138,-where disqualification propter delictum was held not to be in itself fatal after verdict.

No reason is perceived why this particular objection could not be waived by the parties, and even where a party by reason of excusable want of knowledge might be entitled to claim that he had not waived it, that would go to the merits on application for new trial, and not to the want of power. The verdict and judgment not being absolutely void, it is unnecessary to pursue the subject further, as there is nothing to show that injustice was done to caveators, and the trial court did not abuse its discretion in the premises.

Judgment affirmed.

(187 U. S. 271)

The questions to be answered and the case on which they arise are shown in the statement of facts and resulting questions of law constituting the certificate of the court below, which is as follows:

"Statement of facts.

"That the Inter-State Loan & Trust Company is a corporation created and organized under and by virtue of the general laws of the state of Kansas, July 22, 1885, and as such was authorized to transact business as a land-mortgage company; that in or about the month of November, 1897, E. B. Crisseys commenced an action against the said the Inter-State Loan & Trust Company in the* United States circuit court for the district of Kansas, first division, to which court jurisdiction in that behalf duly appertained; that said action was duly commenced by the issue of a summons to said company; that was duly served upon the said summons said company, and that said company duly appeared in said suit by attorney and defended the same, and that such proceedings were afterwards had in said action that on the 31st day of December, 1897, a judgment

JOHN H. EVANS, as Receiver, Plff. in Err., was duly given and made in and by said

ANDREW J. NELLIS.

Corporations-enforcement of stockholder's liability Federal courts-enforcement of remedy created by state statute-construction of statute by state courts.

1. The receiver of the assets of a corporation

court in said action in favor of the said plaintiff and against the said company, in and by which judgment it was decided, adjudged, and decreed that there was due and owing to the plaintiff therein from and by the said company the sum of $6,792.20 and $56.45 costs, and that the plaintiff therein have and recover said sum from the said company, with interest thereon from said

⚫273

:

cept upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment.'

date at the rate of 6 per cent per annum, stock by him or her owned, together with and that the said plaintiff have execution any amount unpaid thereon; but no executherefor against the said company; that tion shall issue against any stockholder, exthereafter an execution against the property of the said the Inter-State Loan & Trust Company was duly issued out of the said court upon said judgment for the said sum of $6,792.20 and the costs as aforesaid, directed to the United States marshal for the district of Kansas, and that thereafter the said marshal duly returned said execution wholly unsatisfied for the reason that no property, real or personal, belonging to said company could be found whereon to levy the same; that thereafter and on or about the 9th day "Sec. 44. If any corporation, created unof June, 1898, upon the application of the der this or any*general statute of this state, said E. B. Crissey, the plaintiff herein was except railway, or charitable or religious duly appointed receiver of the said the corporations, be dissolved, leaving debts unInter-State Loan & Trust Company by the paid, suits may be brought against any percircuit court of the United States for the son or persons who were stockholders at the district of Kansas, first division, to which time of such dissolution, without joining said court jurisdiction therein duly apper- the corporation in such suit; and if judg tained, and has duly qualified and acted as ment be rendered, and execution satisfied, such; that thereafter and on or about the the defendant or defendants may sue all 9th day of February, 1899, an order was who were stockholders at the time of dissoduly given and made in and by said circuit lution, for the recovery of the portion of court of the United States for the district such debt for which they were liable, and of Kansas, first division, by which order it the execution upon the judgment shall diwas considered, adjudged, ordered, and de- rect the collection to be made from property creed that the said John H. Evans, as re- of cach stockholder, respectively; and if any ceiver, proceed against all or any of the number of stockholders (defendants in the stockholders of the Inter-State Loan & case) shall not have property enough to Trust Company from whom, in his judg-satisfy his or their portion of the execution, ment, a recovery can be had to collect all of then the amount of deficiency shall be ditheir liability as stockholders in said com- vided equally among all the remaining pany, a copy of which order is hereto an- stockholders, and collections made accordnexed and marked exhibit A, and which copy the plaintiff herein prays may be considered as part of his complaint as if herein set forth in full; that the defendant is a citizen of the state of New York, and prior to the month of November, 1897, became a stockholder of said corporation and the owner of 602 shares of the capital stock thereof of the par value of $100 a share, and "Sec. 14. That section 32. chapter 23, of has ever remained a stockholder and the the General Statutes of 1868, be and the owner of said shares. At the time when the same is hereby amended to read as follows: defendant became a stockholder of said cor- Sec. 32. If any execution shall have been poration, and from that time ever since, it issued against the property or effects of a was provided by the Constitution of the corporation, except a railway or a religious state of Kansas (art. 12, § 2), as follows: or charitable corporation, and there cannot 'Dues from corporations [organized and ex- be found any property upon which to levy isting under the laws of the state of Kan- such execution, such corporation shall be sas] shall be secured by individual liability deemed to be insolvent, and upon applicaof the stockholders to an additional amount tion to the court from which such exeequal to the stock owned by each stock-cution was issued, or to the judge thereholder, and such other means as shall be of, а receiver shall be appointed to provided by law; but such individual liabil- close up the affairs of said corporation. ities shall not apply to railroad corpora- Such receiver shall immediately institute tions nor corporations for religious or charitable purposes.' At the time the defendant became a stockholder of said corporation it was provided by the General Statutes of Kansas of 1868 (chap. 23, §§ 32, 44) as follows:

ingly, deducting from the amount a sum in proportion to the amount of stock owned by the plaintiff at the time the company dissolved.'

"By a law of Kansas enacted January 11, 1898, §§ 32 and 44 aforesaid were repealed, and by §§ 14 and 15 it was provided as follows:

proceedings against all stockholders to collect unpaid subscriptions to the stock of such corporation, together with the additional liability of such stockholders equal to the par value of the stock held by each. All collections made by the receiver shall be held for the benefit of all creditors, and shall be disbursed in such manner and at such times as the court may direct. Should the collections made by the receiver exceed the amount necessary to pay all claims against such corporation, together with all! costs and expenses of the receivership, the remainder shall be distributed among the

Mr. Justice White delivered the opinion of the court:

stockholders from whom collections have] been made, as the court may direct; and in the event any stockholder has not paid the The third question lies at the threshold, amount due from him the stockholders mak- and requires to be answered before aping payment shall be entitled to an assign-proaching the consideration of the first and ment of any judgment or judgments ob- second questions. This becomes apparent tained by the receiver against such stock when it is seen that if the first and second holder, and may enforce the same to the ex-be answered in such a manner as to sustain tent of his proportion of claims paid by

them.

"Sec. 15. That section 46, chapter 23, of the General Statutes of 1868 be and the same is hereby amended to read as follows: Sec. 46. The stockholders of every corporation, except railroad corporations or corporations for religious or charitable purposes, shall be liable to the creditors thereof for any unpaid subscriptions, and in addition thereto for an amount equal to the par value of the stock owned by them, such liability to be considered an asset of the corporation in the event of insolvency, and to be collected by a receiver for the benefit of all creditors. [Kan. Gen. Stat. 1901, 88 1302, 1315, pp. 293, 296.]

"The present action was brought in the circuit court of the United States for the northern district of New York by the receiver of the said the Inter-State Loan & Trust Company, appointed as aforesaid, against the defendant to recover the sum of $60,200, alleging his liability as a stockholder and the owner of the said 602 shares of the said corporation.

"Upon the foregoing facts this court desires instructions upon the following questions:

*"3d. Is the plaintiff, as a receiver appointed as aforesaid, entitled to maintain an action in the circuit court of the United States for the northern district of New York?

the cause of action, the question would yet remain whether the receiver, appointed as stated, had authority to prosecute the suit, whilst, on the other hand, if the conclusion be reached that the receiver was without power to bring the suit-irrespective of what might be the reply to the first two questions-these questions become irrelevant and the case is disposed of.

The judgment against the corporation in the circuit court of the United States for the district of Kansas was rendered on December 31, 1897, prior, therefore, to the enactment of the Kansas statute of 1899. So, also, the execution was issued and the receiver appointed prior to the passage of that act. After the receiver had been appointed, however, and subsequent to the passage of the act of 1899, the court entered an order, directing the receiver to proceed against "all or any of the stockholders of the Inter-State Loan & Trust Company, from whom, in his judgment, a recovery can be had to collect all of their liability as stockholders in said company." Now ther authority to so direct the receiver must rest upon either the statute of Kansas of 1868, referred to in the certificate, or upon the statute of 1898. But the right of the receiver of the assets of the corporation to sue under the Kansas law to recover the liability of a stockholder, cannot be evolved from the act of 1868, since that act made the liability of the stockholder, not an asset of the corporation, but an asset which the creditor of the corporation alone could recover for his individual benefit, to the extent required to pay his judgment obtained against the corporation. In Abbey v. W. B. Grimes 426, 427, it was said, referring to the liaDry Goods Co. 44 Kan. 415, 418, 24 Pac. bility under the act of 1868:

"The nature of this liability is peculiar; it seems to have been created for the exclusive benefit of corporate creditors. The liability rests upon the stockholders of the corporation to respond to the creditors for an amount equal to the stock held by each, and it has been held that the action to enforce this liability can only be maintained by the creditors themselves in their own right and for their own benefit."

"In accordance with the provisions of 6 of the act of March 3, 1891, establishing courts of appeals, etc., the foregoing ques-der the Kansas statute of 1868 was so fully The nature and extent of the liability untions of law are by the circuit court of ap: reviewed and stated in Whitman v. Oxford peals for the second circuit hereby certified to the Supreme Court." [26 Stat. at L. Nat. Bank, 176 U. S. 559, 44 L. ed. 587, 20 828, chap. 517, U. S. Comp. Stat. 1901, P. with referring to that case as conclusively Sup. Ct. Rep. 477, that we content ourselves 549.] demonstrating the proposition previously stated. Tested, then, by the Kansas act of 1868, it is manifest that the receiver had no authority to bring this suit even in the courts of the state of Kansas, and he clearly, therefore, had no power to prosecute such action in the courts of another juris

Messrs. Stephen B. Stanton, L. A. Stebbins, C. J. Evans, and P. Tecumseh Sherman for plaintiff in error.

Mr. Andrew J. Nellis in propria per sona for defendant in error.

that there is a defect of parties plaintiff;" (4) that there is a defect of parties defend ant. This demurrer was overruled, and thereafter the defendant answered." In re viewing the action of the trial court the supreme court of Kansas said:

might proceed against the individual stockholders only (1) by motion after judgment and execution against the corporation returned nulla bona; (2) by action after dissolution, either by expiration of time, judg ment of dissolution, or suspension of business for more than one year, as provided in §§ 32, 46, corp. act 1868. Chapter 10 of the Laws of 1898 repealed said §§ 32 and 46, and substituted therefor §§ 14 and 15."

diction. Indeed, it is manifest that the suit brought by the receiver which is now under consideration was not deemed by him to be a suit under the Kansas act of 1868, since the recovery which he seeks was not the amount of the judgment rendered in favor of the creditor in the particular suit "Prior to the enactment of chapter 10, wherein the receiver was appointed, but the Laws of 1898, the creditor of a business corwhole sum of the stockholder's double lia-poration, other than a railway or bank, bility, which could only be upon the theory that the receiver was entitled to take such liability as the receiver of the corporation and as a corporate asset to pay the debts generally. In fact, the foregoing propositions might have been taken as conceded, since in the argument at bar the right of the receiver to sue was upheld, not on the ground that he was acting under the act of 1868, but that he was proceeding in further ance of and in supposed conformity to the act of 1898. This contention being in effect rested on the proposition that although the judgment was rendered and the receiver appointed before the passage of the act of 1898, the order of the court empowering him to enforce the liability of stockholders was entered after the enactment of the act of 1898, and therefore conferred upon the receiver the authority which it is in the ar-ration may proceed against its stockholders. gument assumed, he would have had a right to exercise if appointed under that act.

The sections of the act of 1898 referred to are those set out in the certificate of the court below. The court then further said that it was obvious that the act of 1898 created an "entirely different remedy from that provided by the act of 1868," and declared, referring to the act of 1898, that "there exists no other statute by which the creditor of an insolvent or dissolved corpo

It follows, therefore, that if a creditor desires to make a stockholder respond for the debts of the corporation, he must proceed against him in the mode thus prescribed, and no other." Proceeding, then, to test the right of the receiver to sue, by the act of 1898, the court held that, as he had not brought a suit against the corporation and all the resident stockholders, in order in such suit to fix the sum required to pay the corporate debts, he, the receiver, was wholly without authority under the statute to make any demand whatever against a stockholder, as the previous suit to fix the sum required to pay the debts was an essential prerequisite under the statute to any action by a receiver appointed under the act of 1898 against a stockholder. Summing up its view of the act of 1898, the court said:

The question then is, Conceding arguendo, the proposition that the receiver was appointed under the act of 1898 and in supposed conformity to it, was he authorized to prosecute this suit by virtue of the act of 18981 The import of the Kansas act of 1898 and the extent of the powers which it called into being, were decided by the supreme court of Kansas in Waller v. Hamer (June 7, 1902), not yet reported in the official reports, but found in the advanced sheets of the 69th Pacific Reporter, p. 185. In that case two creditors obtained judg. ment in a Kansas court against a corporation. Execution having been issued and re turned no property found, one of the creditors moved for the appointment of a receiver to close up the affairs of the corporation, which motion was allowed. The re "This act provides a complete system for ceiver thus appointed brought suit against collecting the assets and paying the debts of a stockholder to recover his unpaid sub- an insolvent corporation, and of adjusting scription and statutory liability. The de- the liabilities of the stockholders between fendant filed an answer and a plea in abate-themselves. To do this the receiver must ment, which, among other things, we quote from the opinion of the Kansas court, asserted "that the receiver should not be permitted to further prosecute the action against him until all the stockholders were brought into court, to the end that a final ascertainment of the debts of the corporation and an adjustment and settlement of the liabilities of the stockholders to the corporation and as between themselves might be had. To this plea in abatement the plaintiff demurred, which demurrer was sustained. Thereafter, upon leave of court, the defendant demurred to the petition for the reasons: (1) That the plaintiff had no legal capacity to institute and maintain the present action; (2) that the petition did not state facts sufficient to constitute a cause of action against the defendant; (3)

bring in all stockholders that are within the jurisdiction of the court, that in one proceeding the court may ascertain and determine the indebtedness of the corporation, the amount each stockholder should pay, and, if one has paid more than his propor tion, award him such relief against the other stockholders as may appear just. The receiver having failed to comply with this plain statutory requirement, the demurrer to the plea in abatement should have been overruled."

It therefore follows that there was no authority conferred by the act of 1898 of Kansas, from which the right of the receiver to bring the suit which is now before us can be deduced. It having been heretofore demonstrated that there was no such right under the act of 1868, and as there is no such