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be found any property whereon to levy such execution, then execution may be issued against any of the stockholders to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except 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 nay 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."

"Sec. 40 (as amended in 1883). Laws 1883, chap. 46, p. 88. A corporation is dissolved-first, by the expiration of the time limited in its charter; second, by a judgment of dissolution rendered by a court of competent jurisdiction; but any such corporation' Self-executing nature of constitutional provt sions declaring the liability of stockholders in corporations.

The question whether or not the provision of the Kansas Constitution declaring that "dues from corporations shall be secured by individual liability of the stockholders and an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law," is self-executing, has been considered in a number of cases. In Fowler v. Lamson, 146 Ill. 472, 34 N. E. 932, the court said the decisions of the supreme court of Kansas must be first looked to, and their ruling would be adopted if they had made any upon the subject, and afterwards sald: "While it Is, perhaps, true that the supreme court of Kansas has not decided, in terms, that sald constitutional provision is self-executing, It has fully recognized, and in effect held, that stockholders of corporations organized under the Constitution and foregoing statutes of that state are individually liable to creditors of such corporation to an additional amount equal to the stock owned by each of them."

But that the Kansas Constitution is not selfexecuting in this matter is directly decided in Tuttle v. National Bank of the Republic, 161 Ill. 497, 34 L. R. A. 750, 44 N. E. 984; Bell v. Farwell. 176 Ill. 489, 42 L. R. A. 804, 52 N. E. 346; and Marshall v. Sherman, 148 N. Y. 9. 34 L. R. A. 757, 42 N. E. 419. And in a recent case the Kansas supreme court has adopted the same view. Woodworth v. Bowles (Kan.) 60 Pac. 331.

A constitutional provision that "dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law," is not operative without the aid of legislation, and statutes passed in fulfilment of it furnish the only basis of judicial action. Morley v. Thayer, 3 Fed. Rep. 737.

So, in Jerman v. Benton, 79 Mo. 148, It was held that the double liability clause of the Missouri Constitution of 1866 did not take effect until the enactment of appropriate legislation. A constitutional provision that "dues from corporations shall be secured by such individual liability of the corporators and other means as may be prescribed by law," and another, that "each stockholder of a corporation or Jointstock association shall be individually and personally liable for his proportion of all its debts and liabilities," must be construed together,

shall be deemed to be dissolved for the pur pose of enabling any creditors of such corporation to prosecute suits against the stock. holders thereof to enforce their individual liability, if it be shown that such corporation has suspended business for more than one year, or that any corporation now so suspended from business shall for three months after the passage of this act fail to resume its usual and ordinary business."

"Sec. 44. If any corporation, created under this or any general statute of this state, except railway or charitable or religious *corporations, be dissolved, leaving debts un-[561] paid, suits may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; and if judgment be rendered, and execution satisfied, the defendant or defendants may sue all who were stockholders at the time of dissolution, for the recovery of the portion of such debt for which they were liable, and the execution and the latter cannot be held self-executing, as in that case the former would have no meaning. French v. Teschemaker, 24 Cal. 518.

The provision of the Ohio Constitution, 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," is not self-executing so as to create a right of action in another state against a stockholder in an Ohio corporation. Barnes v. Wheaton, 80 Hun, 8, 29 N. Y. Supp. 830.

A provision of the Michigan Constitution, that "the stockholders of all corporations and joint-stock associations shall be individually liable for all labor performed for such corporation or association," being held by the courts of that state to create a collateral, and not a primary, liability, which cannot be enforced without the aid of statutes, will not create a right of action in another state against a stockholder of a Michigan corporation. May ▼. Black, 77 Wis. 101, 45 N. W. 949.

But the "double liability clause" of the Minnesota Constitution, which provides that "each stockholder in any corporation (except. ing those organized for the purpose of carrying on any kind of manufacturing or mechanical business) shall be liable to the amount of stock held or owned by him," ea proprio vigore creates an individual liability on the part of the stockholders. Willis v. Mabon, 48 Minn. 140, sub nom. Willis v. St. Paul Sanitation Co. 16 L. R. A. 281, 50 N. W. 1110.

And no supplementary statutory legislation is needed to render effective the provision of the Nebraska Constitution declaring that “every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors, over and above the amount of stock by him held, to an amount equal to his respective stock or shares so held, for all its liabilities accruing while he remains such stockholder." Farmers' Loan & T. Co. v. Funk, 49 Neb. 353, 68 N. W. 520.

And there is no necessity for legislation providing special means for the enforcement of the provision of the Washington Constitution making any bank officer receiving deposits, with knowledge of the bank's insolvency, individually liable for such deposits. Mallon Hyde, 76 Fed. Rep. 388.

1899.

The Kansas statute does not create or impose a general liability or a liability as upon contract.

upon the judgment shall direct the collection | 757, 42 N. E. 419; Tuttle v. National Bank
to be made from property of each stock- of the Republic, 161 Ill. 497, 34 L. R. A. 750,
holder, respectively; and if any number of 44 N. E. 984; Wells v. Robb, 43 Kan. 201, 23
stockholders (defendants in the case) shall Pac. 148.
not have property enough to satisfy his or
their portion of the execution, then the
amount of deficiency shall be divided equally
among all the remaining stockholders, and
collections made accordingly, deducting from
the amount a sum in proportion to the
amount of stock owned by the plaintiff at
the time the company dissolved."

The complaint alleged, and the plaintiff at
the trial introduced evidence of, the follow-
ing facts: The Kansas corporation was duly
formed under the general laws of the state
of Kansas in 1886, for the purpose of a gen-
eral banking and real-estate business; had
its only place of business at Arkansas City
in that state; was not a railway, religious,
or charitable corporation; and had a capital
of $200,000, divided into 2,000 shares of $100
each, of which the defendant, from the time
of the formation of the corporation, and ever
after, owned one half. In December, 1890,
that corporation made a general assignment
for the benefit of its creditors, and from that
time wholly suspended business. About four
months before its failure, it indorsed and
guaranteed for value two promissory notes,
together amounting to $4,875, which were
discounted by the plaintiff. In 1895 the
plaintiff brought an action to recover the un-
paid balance of those notes, in a district
court of the county of Cowley and state of
Kansas, against the corporation, and, after
its general appearance and subsequent de-
fault, recovered judgment against it for the
sum of $3,449; an execution thereon against
the corporation was issued to the sheriff of
the county, who returned it wholly unsatis-
fied, because he could not find any property
[562]on which to make a levy; and the corpora-
tion had in fact no assets of any kind.

The defendant moved the circuit court of the United States to direct a verdict in his favor, upon the ground that it had no jurisdiction to enforce a statutory remedy of the

state of Kansas. The court denied the mo

tion, directed a verdict for the plaintiff,
overruled a motion for a new trial, and en-
tered a final judgment for the plaintiff. 76
Fed. Rep. 697. That judgment was affirmed
by the circuit court of appeals. 51 U. S.
App. 536, 83 Fed. Rep. 288, 28 C. C. A. 404.
The defendant thereupon applied for and
obtained this writ of certiorari. 168 U. S.
710, 18 Sup. Ct. Rep. 950.

Mr. William G. Choate argued the cause, and Messrs. Joseph H. Choate and William G. Wilson filed a brief, for Whit

man:

Defendant's liability, if any, is purely statutory.

Morley v. Thayer, 3 Fed. Rep. 739; Barnes v. Wheaton, 80 Hun, 8, 29 N. Y. Supp. 830; State ex rel. Atty. Gen. v. Sherman, 22 Ohio St. 411; French v. Teschemaker, 24 Cal. 518; Fusz v. Spaunhorst, 67 Mo. 256; Groves v. Slaughter, 15 Pet. 449, 10 L. ed. 800; Marshall v. Sherman, 148 N. Y. 9, 34 L. R. A.

Ball v. Reese, 58 Kan. 614, 50 Pac. 875; Pollard v. Bailey, 20 Wall. 520, 22 L. ed. 376; Terry v. Little, 101 U. S. 216, 25 L. ed. 864.

The remedy is not available without the state of Kansas.

Marshall v. Sherman, 148 N. Y. 9, 34 L. R. A. 757, 42 N. E. 419; Story, Confl. Laws, $ 572; 2 Kent, Com. 462; Wharton, Confl. Laws, § 721.

The whole fabric of supposed authority has been built upon an unsupported dictum of the Kansas supreme court in Howell v. Manglesdorf, 33 Kan. 194, 5 Pac. 759. It is well settled that such a dictum is not to be regarded as an authority.

Carroll v. Carroll, 16 How. 286, 14 L. ed.

941.

The weight of considered authority is wholly opposed to the series of decisions, mere successive echoes of the which are

dictum in Howell v. Manglesdorf.

Lowry v. Inman, 46 N. Y. 119; Pollard v. Bailey, 20 Wall. 520, 22 L. ed. 376; Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224; Marshall v. Sherman, 148 N. Y. 9, 34 L. R. A. 757, 42 N. E. 419; Bank of North America v. Rindge, 154 Mass. 203, 13 L. R. A. 56, 27 N. E. 1015; Fowler v. Lamson, 146 Ill. 472, 34 N. E. 932 Tuttle v. National Bank of the Republic, 161 Ill. 497, 34 L. R. A. 750, 44 N. E. 984; Hancock Nat. Bank v. Farnum, 20 R. I. 466, 40 Atl. 341; Rice v. Merrimack Hosiery Co. 56

N. H. 114.

If the liability of a stockholder in a Kansas corporation is upon contract, then the statute of frauds forbids the enforcement of such contract.

Moses v. Lawrence County Bank, 149 U. S. 303, 37 L. ed. 745, 13 Sup. Ct. Rep. 900.

Messrs. Howard A. Taylor and William B. Hornblower argued the cause and

filed a brief for the bank:

The provision of the Kansas Constitution is, if not self-executing, at least declaratory of a legal relation involving rights and lia

bilities.

Willis v. Mabon, 48 Minn. 140, sub nom. Willis v. St. Paul Sanitation Co. 16 L. R. A. 281, 50 N. W. 1110; People ex rel. McClel land v. Roberts, 148 N. Y. 360, 31 L. R. A. 399, 42 N. E. 1082.

Having in mind the constitutional provia declaration, even if not selfsion as executing, the special remedies of the statute become merely additional remedies to the ordinary one by action in any court of record.

Cook, Stock & Stockholders, 3d ed. §§ 218,

219.

The liability can be enforced in any Federal circuit court of the United States which has jurisdiction of the parties.

Huntington v. Attrill, 146 U. S. 657, 36 L. 589

ed. 1123, 13 Sup. Ct. Rep. 224; Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Northern P. R. Co. v. Babcock, 154 U. S. 190, 38 L. ed. 958, 14 Sup. Ct. Rep. 978.

effective this constitutional provision, but does not destroy the liability; nor is it created by the act of the legislature *prescribing [563])

the mode of its enforcement. This is the obvious meaning of the constitutional pro

For instances of the enforcement of similar liabilities outside of the territorial lim-vision. "The simplest and most obvious inits of the state enacting the statute, see

Auer v. Lombard, 33 U. S. App. 438, 72 Fed. Rep. 209, 19 C. C. A. 72; Flash v. Conn, 109 U. S. 371, 27 L. ed. 966, 3 Sup. Ct. Rep. 263; Cuykendall v. Miles, 10 Fed. Rep. 342; First Nat. Bank v. Gustin Minerva Consol. Min. Co. 42 Minn. 329, 6 L. R. A. 676, 44 N. W. 198; Paine v. Stewart, 33 Conn. 516; Aldrich v. Anchor Coal Co. 24 Or. 32, 32 Pac. 756; Aultman's Appeal, 98 Pa. 505; Ex parte Van Riper, 20 Wend. 614; Savings Asso. v. O'Brien, 51 Hun, 45, 3 N. Y. Supp. 764.

The current of authority in the Federal circuit court and the circuit court of appeals in favor of enforcing the liability in the courts outside the territorial imits of Kansas is overwhelming.

Rhodes v. United States Nat. Bank, 24 U. S. App. 607, 66 Fed. Rep. 512, 13 C. C. A. 612. 34 L. R. A. 742; McVickar v. Jones, 70 Fed. Rep. 754; Bank of North America v. Rindge, 57 Fed. Rep. 279; Brown v. Trail, 89 Fed. Rep. 641; Mechanics' Sav. Bank v. Fidelity Ins. Trust & S. D. Co. 87 Fed. Rep. 113; Schiffer v. Columbia College, 87 Fed. Rep. 166; American Freehold Land Mortg. Co. v. Woodworth, 82 Fed. Rep. 269.

The authorities in the state courts are mostly in support of respondent's position. Hancock Nat. Bank v. Ellis, 166 Mass. 414, 44 N. E. 349, 51 N. E. 207; Guerney v. Moore, 131 Mo. 650, 32 S. W. 1132; Ferguson v. Sherman, 116 Cal. 169, 37 L. R. A. 622, 47 Pac. 1023: Western Nat. Bank v. Lawrence, 117 Mich. 669, 76 N. W. 105; Tuttle v. National Bank of the Republic, 48 Ill. App. 481; National Bank v. Zinser, 55 Ill. App. 510; Marshall v. Sherman, 84 Hun, 186, 32 N. Y. Supp. 193; Bell v. Farwell, 176 Ill. 489, 42 L. R. A. 804, 52 N. E. 346.

[562] *Mr. Justice Brewer delivered the opin

ion of the court:

By § 2 of article 12 of the Constitution of Kansas a certain definite liability is cast upon each stockholder in other than railway, religious, and charitable corporations. This liability is for the dues of the corporation and to an amount equal to the stock owned by him. The word "dues" is one of general significance, and includes all contractual obligations. Whether broad enough to include liabilities for torts, either before or after judgment, is not a question before us, and upon it we express no opinion. The words, "shall be secured," are not merely directory to the legislature to make provision for such liability, but of themselves declare it. To this extent the Constitution is self-executing. Willis v. Mabon, 48 Minn. 140, 16 L. R. A. 281, 50 N. W. 1110. The discretion of the legislature extends beyond this, as indicated by the clause "and such other means as shall be provided by law." A failure of the legislature to create courts or prescribe modes of procedure may, it is true, make in

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terpretation of a Constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption." Lamar, Justice, in Lake County v. Rollins, 130 U. S. 662, 671, 32 L. ed. 1060, 1063, 9 Sup. Ct. Rep. 651, 652.

But this constitutional provision does not stand alone. The legislature of Kansas has acted on the subject-matter, and the Constitution and the statutes are to be taken together, as making one body of law; and it serves no good purpose to inquire what rights and remedies a creditor of a corpora. tion might have, or what liabilities would rest upon a stockholder, if either Constitu tion or statutes stood alone and unaided by the other.

In § 32 of chapter 23 of the General Stat utes of that state, passed before the organi zation of the corporation referred to, the legislature prescribed the mode of enforcing this constitutional liability, and if such were needed declared to what extent it could be enforced. It may be either by motion in a case in which judgment has been rendered against the corporation and execution thereon returned unsatisfied, or by a direct action by the plaintiff in such judgment. Neither remedy can be made effectual in the courts of Kansas against a stockholder unless by due service of process he is brought within the jurisdiction of such courts. Wilson v. Seligman, 144 U. S. 41, 36 L. ed. 338, 12 Sup. Ct. Rep. 541; Howell v. Manglesdorf, 33 Kan. 194, 199, 5 Pac. 759.

Whatever else may be said about the remedy, it is direct, certain, and available to every creditor of a corporation, and leaves to the stockholders the adjustment between themselves of their respective individual shares of the corporate obligations. In view of the present tendency to carry on business through corporate instrumentalities and the freedom from personal liability which attends ordinary corporate action, it cannot be said that this limited additional remedy is open to judicial condemnation.

The liability which by the Constitution and statutes is thus declared to rest upon the stockholder, though statutory in its origin, is contractual in its nature. It would not be doubted that if the stockholders in this corporation had formed a partnership, the obligations of each partner to the others[564] and to creditors would be contractual, and determined by the general common law in respect to partnerships. If Kansas had provided for partnerships with limited liability, and these parties, complying with the provisions of the statute, had formed such a partnership, it would also be true that their obligations to one another and to creditors would be contractual, although only in the statute was to be found the authority for the creation of such obligations. And it is none the less so when these same

stockholders

organized a corporation under a law of Kansas, which prescribed the nature of the obligations which each thereby assumes to the others and to the creditors. While the statute of Kansas permitted the forming of the corporation under certain conditions, the action of these parties was purely voluntary. In other words, they entered into a contract authorized by statute.

Flash v. Conn, 109 U. S. 371, 27 L. ed. 966, 3 Sup. Ct. Rep. 263, is much in point. In that case a corporation was organized in the state of New York, under an act of the legislature, which contained this provision:

and does not depend on the liability of other stockholders. There is no necessity for bringing in other stockholders or creditors. Any creditor who has recovered judgment against the company and sued out an execu. tion thereon, which has been returned unsatisfied, may sue any stockholder, and no other creditor can. Such actions are maintained without objection in the courts of New York, under § 10 of the statute relied on in this case. Shellington v. Howland, 53 N. Y. 371; Wiles v. Suydum, 64 N. Y. 173; Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338."

"Sec. 10. All the stockholders of every In Richmond v. Irons, 121 U. S. 27, 30 L. company incorporated under this act shall be ed. 864, 7 Sup. Ct. Rep. 788, in which the severally individually liable to the creditors question presented was whether the individ of the company in which they are stock-ual liability of a stockholder in a national holders, to an amount equal to the amount bank survived as against an administrator, of stock held by them respectively, for all it was said (p. 55, L. ed. p. 873, Sup. Ct. debts and contracts made by such company, Rep. p. 801): until the whole amount of capital stock fixed and limited by such company shall have been paid in, and a certificate thereof shall have been made and recorded as prescribed in the following section."

An action was brought in Florida against one of the stockholders, and on error to this court it was held that the stockholder was liable, the court saying (377, L. ed. 969, Sup. Ct. Rep. 267):

Under that act the individual liability of the stockholders is an essential element in the contract by which the stockholders became members of the corporation. It is voluntarily entered into by subscribing for[566] and accepting shares of stock. Its obligation becomes a part of every contract, debt, and engagement of the bank itself, as much so as if they were made directly by the stockholder instead of by the corporation. There is nothing in the statute to indicate that the obligation arising upon these undertakings and promises should not have the same force and effect, and be as binding in all respects, as any other contracts of the individual stockholder."

In Concord First Nat. Bank v. Hawkins, 174 U. S. 364, 372, 43 L. ed. 1007, 1011, 19 Sup. Ct. Rep. 739, 742, in which one national bank was sought to be charged as stockhold. er in another national bank, was this declaration:

"We think the liability imposed by § 10 is a liability arising upon contract. The stock holders of the company are by that section made severally and individually liable, within certain limits, to the creditors of the company for its debts and contracts. Everyone who becomes a member of the company by subscribing to its stock assumes this liability, which continues until the capital stock is all paid up and a certificate of that fact is made, published, and recorded." [565] *And again, after noticing the rulings of the court of appeals of the state of New York (379, L. ed. 969, Sup. Ct. Rep. 268): "If this were a case arising in the state of New York we should therefore follow the construction put upon the statute by the courts of that state. The circumstance that the case comes here from the state of Florida "Undoubtedly, the obligation is declared should not leave the statute open to a dif- by the statute to attach to the ownership of ferent construction. It would be an anomaly the stock, and in that sense may be said to for this court to put one interpretation on be statutory. But as the ownership of the the statute in a case arising in New York, stock, in most cases, arises from the volunand a different interpretation in a case aris-tary act of the stockholder, he must be reing in Florida. Our conclusion, therefore, is that this action was not brought to enforce a liability in the nature of a penalty.

"The right of the plaintiffs to sue upon this liability in any court having jurisdiction of the subject-matter and the parties is therefore clear. Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439."

And finally, in reference to the objection that the action was one at law against a single stockholder instead of in equity against all (380, L. ed. 970, Sup. Ct. Rep. 269):

"But in this case the statute makes every stockholder individually liable for the debts of the company for an amount equal to the amount of his stock. This liability is fixed

"In the present case it is sought to escape the force of these decisions by the contention that the liability of the stockholder in a national bank to respond to an assessment in case of insolvency is not contractual, but statutory.

garded as having agreed or contracted to be
subject to the obligation."

Similar are the views entertained by the
supreme court of Kansas.

In Abbey v. W. B. Grimes Dry Goods Co. 44 Kan. 415, 418, 24 Pac. 426, 427, we find this statement:

"The nature of this liability is peculiar; it seems to have been created for the exciu sive benefit of corporate creditors; the liability rests upon the stockholders of a 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."

See

And again, in Plumb v. Bank of Enter- | 51 N. E. 207; Western Nat. Bank v. Law prise, 48 Kan. 484, 486, 29 Pac. 699, 700: rence, 117 Mich. 669, 76 N. W. 105; Guerney "Under our Constitution and statutes, the v. Moore, 131 Mo. 650, 32 S. W. 1132. individual liability stands as a sort of surety also Paine v. Stewart, 33 Conn. 516; Cush for the corporate liability, and creditors of ing v. Perot, 175 Pa. 66, 34 L. R. A. 737, 34 the corporation are supposed to contract Atl. 447; Rhodes v. United States Nat. Bank, with reference to the individual responsibil- 24 U. S. App. 607, 66 Fed. Rep. 512, 13 C. C. ity of the stockholders." A. 612, 34 L. R. A. 742; Bank of North Amer[567] *In Achenbach v. Pomeroy Coal Co. 2 Kan. ica v. Rindge, 57 Fed. Rep. 279; McVickar App. 357, 359, 42 Pac. 734, 735, is this lan- v. Jones, 70 Fed. Rep. 754; Mechanics' Sav. guage: Bank v. Fidelity Ins. Trust & 8. D. Co. 87 Fed. Rep. 113; Dexter v. Edmands, 89 Fed. Rep. 467; Brown v. Trail, 89 Fed. Rep. 641.

"The liability of a stockholder in an insolvent corporation is of the nature of a liability on contract, and survives against the legal representatives of a deceased stockhold

er."

And while the word "statutory" is sometimes found in the opinions of that court as descriptive of the stockholder's liability, evi. dently the word is so used to indicate the origin rather than the nature of the liability. Thus, in Howell v. Manglesdorf, 33 Kan. 194, 199, 5 Pac. 759, 762, it was said:

"While the liability is statutory, it is one which arises upon the contract of subscription to the capital stock of the corporation, and an action to enforce the same is transitory, and may be brought in any court of general jurisdiction in the state where personal service can be made upon the stockholder."

Obviously this recognizes the contractual nature of the obligation as well as its statutory origin. Again, in Pierce v. Topeka Commercial Security Co. 60 Kan. 164, 55 Pac. 853, it was held that a stockholder, sued by a judgment creditor of the corporation, might set off against that claim the indebtedness of the corporation to him, accruing before he became liable as stockholder, the court saying (60 Kan. 166, 55 Pac. 854):

"Where the statute creates a liability against stockholders which is personal and several, and actionable by any creditor against any stockholder, it is generally held that a stockholder may in such a proceed. ing brought against himself set off debts due to him from the company."

We see no error in the judgment of the Circuit Court of Appeals, and it is therefore affirmed.

Mr. Justice Peckham dissents.

Prize

1.

2.

3.

4.

5.

THE BENITO ESTENGER.

(See S. C. Reporter's ed. 568-581.)

vessel trading in provisions—friendly acts license or exemption by consul.

The trading to a stronghold of the enemy, of an enemy vessel carrying provisions, constitutes, under the laws of war, illicit intercourse with the enemy, subjecting the property to capture as a prize.

The individual acts of friendship of a subject of one nation at war, toward the other nation, will not affect his status as an enemy. A United States consul has no authority by virtue of his official station to grant any license or permit to exempt a vessel of the enemy from capture and confiscation.

A colorable transfer of a ship from a belligerent to a neutral is in itself ground for condemnation as prize.

The burden of proving neutral ownership of a vessel in a prize case is on the claimants.

Thus, while the statutory origin of the ob- Argued ligation is asserted, its contractual nature is recognized in that the right of set-off is affirmed.

That an action upon this liability is not one to enforce a penal statute of Kansas, but only to secure a private remedy, is not open to question since the decision in Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224.

And as this liability is one which is contractual in its nature, it is also clear that an action therefor can be maintained in any court of competent jurisdiction. Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Huntington v. Attrill, 146 U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224. [568] *Similar views have been expressed by the highest courts of several states in like actions based upon the same Kansas constitutional and statutory provisions. Ferguson v. Sherman, 116 Cal. 169, 37 L. R. A. 622, 47 Pac. 1023; Bell v. Farwell, 176 Ill. 489, 42 L. R. A. 804, 52 N. E. 346; Hancock Nat. Bank v. Ellis, 172 Mass. 39, 42 L. R. A. 396,

[No. 192.]

January 11, 12, 1900. Decided
March 5, 1900.

from a decree District

Court of the United States for the Southern District of Florida condemning a vessel as a prize. Affirmed.

Statement by Mr. Chief Justice Fuller:

*The Benito Estenger was captured by the[569] U. S. S. Hornet on June 27, 1898, off Cape Cruz on the south side of the island of Cuba, and was brought into the port of Key West and duly libelled on July 2. The depositions in preparatorio of Badamero Perez, Edwin Cole, and Enrique de Messa were taken, and thereafter and on July 27 a claim was interposed by Perez as master of the steamer on behalf of Arthur Elliott Beattie, a British subject, as owner, supported by test affidavits of himself and de Messa. The cause was preliminarily heard on the libel, the deposi

NOTE. As to jurisdiction and powers of consuls,-see Telefsen v. Fee (Mass.) 45 L. R. A. 481, and note.

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