Opinion of the Court. And again, after noticing the rulings of the Court of Appeals of the State of New York (p. 379): "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 should not leave the statute open to a different construction. It would be an anomaly for this court to put one interpretation on the statute in a case arising in New York, and a different interpretation in a case arising 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. Railroad Co., 103 U. S. 11." And finally, in reference to the objection that the action was one at law against a single stockholder instead of in equity against all (p. 380): "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, 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 execution 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 section 10 of the statute relied on in this case. Shillington v. Howland, 53 N. Y. 371; Weeks v. Suydam, 64 N. Y. 173; Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, 89 N. Y. 338." In Richmond v. Irons, 121 U. S. 27, in which the question presented was whether the individual liability of a stockholder in a national bank survived as against his administrator, it was said (p. 55): "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 Opinion of the Court. entered into by subscribing for 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 under 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 National Bank v. Hawkins, 174 U. S. 364, 372, in which one national bank was sought to be charged as stockholder in another national bank, was this declaration: "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." "Undoubtedly, the obligation is declared by the statute to attach to the ownership of the stock, and in that sense may be said to be statutory. But as the ownership of the stock, in most cases, arises from the voluntary act of the stockholder, he must be regarded 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. Dry Goods Co., 44 Kansas, 415, 418, we find this statement: "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 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." And again, in Plumb v. Bank of Enterprise, 48 Kansas, 484, 486: "Under our constitution and statutes, the individual liability stands as a sort of surety for the corporate liability, and creditors of the corporation are supposed to contract with reference to the individual responsibility of the stockholders." Opinion of the Court. In Achenbach v. Pomeroy Coal Co., 2 Kansas Ct. App. 357, 359, is this language: "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 stockholder." And while the word "statutory" is sometimes found in the opinions of that court as descriptive of the stockholder's liability, evidently the word is so used to indicate the origin rather than the nature of the liability. Thus, in IIowell v. Manglesdorf, 33 Kansas, 194, it was said (p. 199): "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. Security Company, 60 Kansas, 164, 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 (p. 166): "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 proceeding brought against himself set off debts due to him from the company." Thus, while the statutory origin of the obligation 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. 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. Railroad Company, 103 U. S. 11; Huntington v. Attrill, 146 U. S. 657. 176 568 176 380 Syllabus. 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 California, 169; Bell v. Farwell, 176 Illinois, 489; Hancock National Bank v. Ellis, 172 Mass. 39; Western National Bank v. Lawrence, 117 Michigan, 669; Guerney v. Moore, 131 Missouri, 650. See also Paine v. Stewart, 33 Connecticut, 516; Cushing v. Perot, 175 Penn. St. 66; Rhodes v. United States National Bank, (U. S. Ct. Ap. 7th Cir.) 24 U. S. App. 607; Bank of North America v. Rindge, (U. S. Cir. Ct. S. Dist. Cal.) 57 Fed. Rep. 279; Mc Vickar v. Jones, (Cir. Ct. Dist. N. H.) 70 Fed. Rep. 754; Mechanics' Savings Bank v. Fidelity Insurance Company, (Cir. Ct. E. Dist. Penn.) 87 Fed. Rep. 113; Dexter v. Edmands, (Cir. Ct. Mass.) 89 Fed. Rep. 467; Brown v. Trail, (Cir. Ct. Dist. Md.) 89 Fed. Rep. 641. We see no error in the judgment of the Circuit Court of Appeals, and it is, therefore, MR. JUSTICE PECKHAM dissented. Affirmed. 176 568 177 661 177 675 THE BENITO ESTENGER. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR No. 192. Argued January 11, 12, 1900.- Decided March 5, 1900. The general rule is that in time of war the citizens or subjects of the belligerents are enemies to each other without regard to individual sentiments or dispositions, and that political status determines the question of enemy ownership. By the law of prize, property engaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal traffic stamps it with the hostile character and attaches to it all the penal consequences. Provisions are not, in general, deemed contraband; but they may become so if destined for the army or navy of the enemy, or his ports of naval or military equipment. In dealing with a vessel asserted to be an enemy vessel, the fact of trade with the enemy in supplies necessary for the enemy's forces is of declsive importance. Statement of the Case. Individual acts of friendship cannot change political status where there is no open adherence to the opposite cause and former allegiance remains apparently unchanged. A consul has no authority by reason of his official station to graut exemption from capture to an enemy vessel; and this vessel was not entitled to protection by reason of any engagement with the United States. In cases of peculiar hardship, or calling for liberal treatment, it is not for the courts, but for another department of the Government, to extend such amelioration as the particular instance may demand. Transfers of vessels flagrante bello cannot be sustained if subjected to any condition by which the vendor retains an interest in the vessel or its profits, a control over it, or a right to its restoration at the close of the war. The burden of proof in respect of the validity of such transfers is on the claimant, and the court holds as to the transfer in this case that the requirements of the law of prize were not satisfied by the proofs. THE Benito Estenger was captured by the 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 depositions in preparatorio and the test affidavits, and sixty days given for further proofs. Accordingly the depositions of the claimant and sundry others were taken on behalf of the claimant, and the testimony of the consul of the United States at Kingston on behalf of the captor. The cause coming on for final hearing, the court entered a decree December 7, 1898, condemning the vessel as lawful prize as enemy property, and ordering her to be sold in accordance with law. Claimant thereupon appealed, and assigned errors to the effect in substance that the court erred in failing to hold that the Benito Estenger was a British merchant ship, duly documented and entitled to the protection of the British flag, and lawfully owned and registered by a subject domiciled in Great Britain; and also in holding that the Benito Estenger was lawful prize of war, inasmuch as she was engaged on a voyage in |