Page:Federal Reporter, 1st Series, Volume 10.djvu/358

 3i6 FEDERAL REPORTER. �bility is restricted to the amount of stock held by each person, and that the subject-matter is the payment of the capital. This statute should be considered not as penal, but as requiring (as all sueh laws do and must) the utmost care and good faith in contributing the cap- ital, and as prescribing a certain sort of evidence of the fact, vrithout which the shareholder shall be presumed not to have paid. It does not appear in this case whether the actual default was in the share- holders who had not paid their capital or in the officers who had not certified the payment. If it be the former, no one doubts that the defendant is liable with or without a statute. Even if it be the lat- ter, — which on demarrer I cannot assume to be true, — still it is well known that officers of corporations do neglect the eertificate with the knowledge of the shareholders, in order to give the company better credit, and thereby to obtain money and goods at better priees. �I do not feel inclined to extend what I consider the illiberal and narrow rule of comity, or want of it, which stops all remedies at the line of the state. The venerable maxira that he who shares the benefit should share the burden is just, and should not be local in its operation. It applies with full force to shareholders, if not to offi- cers of a corporation who may not even be shareholders, and may act without pay. The cases, as far as they go, point in the same direction. �I ought to notice one further objection, that the assessment ap- pears to have been ex parte ,- or, at least, that there is no allegation that the defendant had a day in court. If this assessment were to have the effect of a judgment against the defendant there would be great force in this objection, though possibly not eontrolling force. But I understand that all defences specially applicable to this defend- ant, such as that he was not a stockholder, etc., are still open to him, and, indeed, perhaps the whole subject may be open. Enough is alleged in the declaration to put him to his defence. �Demurrer overruled. ��� �