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Opinion of the Court, per ALLEN, J.

risk of the owner. It is not necessary to consider whether such a custom, if proved, could vary the contract of the parties.

The other request was, that the referee should find and decide that the merchandise, being foreign merchandise, entered in bond by the plaintiff, was delivered on the wharf into the hands of the United States authorities, or placed under their custody or control, and that such disposition was a sufficient delivery and discharge of the defendant from the obligations of the contract of carriage.

The control which the law gives the revenue officers over foreign merchandise, brought into the ports of the United States, has nothing to do with the contract between the shipowner and the consignee or owner of the goods.

The promise of the carrier is, necessarily, subject to the revenue laws of the country, and his obligation does not require a delivery in contravention of the laws, but when and as those laws permit, and to the party entitled. It may well be that, if the owner fails to comply with the laws, and cannot lawfully land or remove the goods, and they are seized and taken by the officers of the government, or if, upon the omission of the owner, after a reasonable opportunity is given him for that purpose, to obtain the necessary authority to remove or receive the goods, they are, in pursuance of law, delivered to and received by the proper officers, in other words, placed in the custody of the law, the carrier would be discharged from further responsibility to the merchant. It would be equivalent to a storing of the goods, under circumstances authorizing the master of the vessel to store them for the owner. But such is not this case. The owner did obtain a permit to land the goods, to receive them from the carrier, and remove them to a particular place of deposit, a designated bonded warehouse. That the removal was under the supervision of an inspector of customs, whose duty it was to see that goods were not removed in fraud or evasion of the revenue laws, or taken to places not authorized by law, did not at all affect the relation of the parties to the action, or their

Opinion of the Court, per ALLEN, J.

duties and liabilities. Such of the goods as were taken were received and taken by the plaintiff, and, under the permit, he was entitled to take all. He was entitled to an absolute delivery from the master of the vessel; but the fact that his possession, as between him and the United States, was a qualified possession, did not affect the transaction with the defendant.

There is no evidence in the case, tending to show that the custom-house officers had, or had authority to take, the possession or control of the goods, or prevent the delivery to the plaintiff to be taken by him to the warehouse. It would have been no answer to a demand by the plaintiff of the goods, that the duties were not paid, that they were entered in bond, and that an inspector of customs was present to watch their landing, and see that they were carried away by proper persons, and to a proper place of deposit. The inspector did not assume to, and had no legal right to interfere with the delivery of the merchandise to the plaintiff under his permit. He might direct the mode of delivery so far as essential to prevent frauds upon the revenues, but this was the extent and limit of his duties and powers.

The delivery of the goods by the ship-owners or their agents was regarded as a transaction with the plaintiff, and not with the United States officers, except as they might prevent a delivery as authorized by law.

The case was well decided by the referee, and the order granting a new trial must be reversed, and the judgment on the report of the referee be affirmed.

All concur.

Judgment accordingly.

Statement of case.

JOHN B. SCHENCK and HENRY B. SCHENCK, Respondents,
v. JOHN ANDREWS, Appellant.

The provisions of section 2 of act of 1853 (chapter 333 of the Laws of
1853), amending the act of 1848 (chapter 40 of the Laws of 1848),
authorizing the formation of corporations for manufacturing and other
purposes, does not authorize the issue of stock, in addition to the capital
stock stated in the certificate of organization, and any increase thereof
made pursuant to the act of 1848. It simply authorizes the payment for
such stock, in property necessary for the business of the company instead
of in cash; and under its provisions the whole capital stock can be paid
for in property, and when so paid for, the owner thereof is not liable to
the creditors of the company under section 10 of the act of 1848.
(Argued November 27th, 1871; decided December 5th, 1871.)

APPEAL from judgment of the General Term of the Supreme Court in the second judicial district, affirming a judgment of the city court of Brooklyn, sustaining demurrer to defendant's answer.

The complaint alleges an indebtedness to plaintiff from the Empire Planing and Molding Mill Company, a corporation organized under the act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes, passed February 17th, 1848, and the several acts amendatory thereof, and the recovery by plaintiffs of a judgment for such indebtedness against said corporation.

It then alleges, and the plaintiffs seek to make defendant liable as a stockholder, on the ground that the capital stock was never paid in, and that there was no certificate filed of such payment.

The answer shows that a certificate of incorporation was filed. That"after the formation of said corporation, the trustees thereof purchased a manufactory in the city of Brooklyn, and other property necessary for their business for $100,000, the value thereof (and the full amount of the capital), and did issue the whole of said capital stock to the vendor thereof for such manufactory and property," etc., etc., “which

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Statement of case.

stock, so issued, was declared by said company, and was taken by said vendor as full paid stock," and that a certificate, in accordance with the fact, was filed.

A copy of the resolution of the trustees is annexed; also a copy of the certificate filed in accordance with the facts. The answer was demurred to, on the ground that the same does not state facts sufficient to constitute a defence. The demurrer was over-ruled, and judgment given for plaintiffs on such demurrer for $1,098.25, from which defendant appeals.

The only grounds on which the plaintiffs seek to fix the liability of defendant, for the amount of the judgment recovered against the company is, that the stock was not paid in, and that no certificate of such payment was filed. (Act of 1848, § 10; 2 R. S., 5th ed., p. 660, § 32.) That statute required the stock to be paid in cash.

By the act "to amend an act to authorize the formation," etc., etc., passed June 7th, 1853, it is provided:

Section 2. That "the trustees of such companies may purchase mines, manufactories, and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor. And the stock, so issued, shall be taken as full stock, neither shall the holders thereof be liable for any further payments under the tenth section of said act. But in all statements and reports of said company to be published, this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact." (2 R. S., 5th ed., 660, § 33.)

A. J. Parker, for appellant. The answer sets up a literal compliance with the act of 1853, and is a complete defence. (2 R. S., 5th ed., 660, § 33.) The answer does not set up a counter-claim or new matter, and is not demurrable. (Land v. Seaman's Bank, 37 Barb., 129; Rice v. O'Connor, 10 Abb., 362; Ketchum v. Zerega, 1 E. D. Smith, 553; Smith v. Grumin, 2 Sandf., 702; Davy v. Betts, 23 How., 396; Stodard v. Onondaga Conference, 12 Barb., 573.)

H. C. Place, for respondents.

Opinion of the Court, per GROVER, J.

GROVER, J. After the recovery of a judgment against the corporation for the price of merchandise sold to it, and the return of an execution issued thereon unsatisfied, the plaintiffs seek, in the present action, to recover of the defendant, a stockholder in the corporation, the amount of their debt against it. To the complaint the defendant has interposed an answer as a defence, to which the plaintiffs have demurred, upon the ground that the facts stated therein do not constitute any defence to the action. This raises the question whether, assuming the truth of the facts stated in the answer, they constitute a defence. The answer states, in substance, that the defendant was and is the owner, by transfer to him, of upward of $30,000 of stock of the corporation, which is parcel of $100,000 of stock issued by the trustees to Elias T. Hatch, in payment for a manufactory in the city of Brooklyn, and other property necessary for the business of the corporation, purchased of him, which stock so issued was declared by the company, and was taken by the vendor, as full paid stock. That the said $100,000 so issued was the entire stock of the company. That the property so purchased was of the fair value of $100,000. The answer further states that the requisite certificate of the purchase, and payment thereon of the stock, was, before the purchase of the merchandise of the plaintiffs, filed, etc., in the clerk's office of the county where the business of the company was carried on. The counsel for the plaintiffs insists that, notwithstanding these facts, he is still entitled to judgment against the defendant for his debt, by virtue of the provisions of sections 10 and 14 of the act of 1848 (Laws of that year, 56, 57), under which act the company was incorporated. Section 10 provides, that all the stockholders, of every company incorporated under the act, shall be, severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of the stock held by them, respectively, for all debts and contracts made by the company, until the whole amount of stock, fixed and limited by the company, shall have been paid in, and a certificate thereof shall be

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