Booth vs. Dear and others. stockholders will have to be ultimately resorted to in order to fully pay the corporation debts. The facts in that regard do not go to the cause of action. Therefore it is not essential to the complaint that such facts be alleged therein. It is sufficient to allege and show that the plaintiff is a creditor of the corporation, having a debt due and payable; that he sues on behalf of himself and all other creditors of the corporation; that the defendants are stockholders liable for such indebtedness, under sec. 47, ch. 479, Laws of 1852; and that, if the corporation be not made a defendant, sufficient reason be set forth to warrant the omission. Prior judg ment against the corporation, in the action to enforce such liability, is not necessary to exist or be pleaded, or want of assets of the corporation to meet its liabilities. The liability of the stockholders for the payment of the liabilities of the bank, to the amount of their respective holdings of stock, is primary and absolute, and the right to commence and maintain an action to enforce such liability is also absolute, and clearly given by secs. 3223 and 3224, R. S., and without conditions other than above indicated, though the proceedings to that end, in the action, require an ascertainment of the necessity therefor before entering judgment against such stockholders. It follows from what has preceded that the appellants' contention that the complaint does not state a cause of action, because it does not show that the assets of the corporation have been exhausted, cannot be sustained. By the Court. The order of the superior court overruling the demurrer to the complaint is affirmed. Warehouse & Builders Supply Co. vs. Galvin and others. WAREHOUSE & BUILDERS SUPPLY COMPANY, Respondent, vs. May 25-June 11, 1897. Jurisdiction of state and federal courts: Admiralty: Liens: Common carriers: Entire contract: Replevin. 1. The owner of a vessel, as a common carrier, has at common law a particular and specific lien for his freight upon goods carried, which may be enforced in a state court. 2. An action of replevin, brought by the owner and consignee of goods shipped by water to recover possession thereof from the owner of the vessel and those claiming under him, who claimed a lien thereon growing out of the contract of carriage, is a proceeding to enforce a common-law remedy, and not a proceeding in admiralty. The state courts were not therefore deprived of jurisdiction over the action by sec. 2, art. III, Const. of U. S., or by subd. 8, sec. 563, R. S. of U. S., vesting exclusive admiralty and maritime jurisdiction in the federal courts, but expressly saving to suitors the right of a common-law remedy where the common law is competent to give it. 3. A contract to carry 5,000 bushels of salt between certain points at ten cents per barrel is an entire contract, and if only a part of that amount is actually delivered for carriage, the carrier is entitled to a lien thereon, at the end of the transit, for the entire contract price. 4. Where a shipper fails to deliver to a vessel the full amount of goods which he has contracted to furnish, the lien of the vessel upon the goods delivered is enforceable in admiralty, whether the action be regarded as one to recover freight or for damages for the nonperformance of a contract. 5. Where a person has a lien upon goods which would be enforced by the federal courts as courts of admiralty, the owner of the goods cannot recover them in an action of replevin brought in the state courts. APPEAL from a judgment of the superior court of Douglas County: CHAS. SMITH, Judge. Reversed. This action of replevin was commenced June 21, 1895, to recover possession of 415 barrels and 607 sacks of salt, in all Warehouse & Builders Supply Co. vs. Galvin and others. equivalent to 818 barrels, of the admitted value of $600, by the plaintiff, a wharfinger and warehouseman, and owner of the salt, at West Superior, against the defendants Rooney and Beardsley, copartners doing business under the firm name of the Superior Warehouse Company, and as such operating a warehouse at that place, and also against the defendants Galvin, Donnacher, and Tyler, owners of the steamer Saginaw Valley, and engaged in operating the same, and W. E. Clark and H. B. Erhart, as master and agent of the same vessel. The cause being at issue, and trial having been had by the court (a trial by jury having been expressly waived), at the close thereof the court found as matters of fact, in effect, the facts stated, and also that June 10, 1895, the Saginaw Valley left Buffalo, New York, for West Superior; that before leaving Buffalo the plaintiff entered into a contract with the owners of the Saginaw Valley, by the terms of which the Saginaw Valley was to transport 5,000 barrels of salt for the plaintiff from Marine City and St. Clair, Michigan, to the plaintiff's dock at West Superior, at the agreed price of ten cents a barrel, the plaintiff to load and unload the same, or to pay the cost of loading and unloading the salt thereon; that the vessel reserved space for 5,000 barrels, and had the same reserved when at Marine City and St. Clair, June 14, 1895; that when the vessel arrived at Marine City and St. Clair the plaintiff only furnished for transportation barrels and sacks equivalent to 818 barrels, as mentioned, leaving a shortage of 4,182 barrels of salt, which the plaintiff had so agreed to furnish; that the defendants made diligent effort to obtain a sufficient cargo to fill the place of the 4,182 barrels of salt so short, but were obliged to make the voyage without any additional cargo; that June 19, 1895, the Saginaw Valley reached the plaintiff's dock at West Superior with said cargo, and notified the plaintiff of the arrival; that by reason of such failure of the Warehouse & Builders Supply Co. vs. Galvin and others. plaintiff to furnish said additional 4,182 barrels of salt the owners of the Saginaw Valley were damaged in the sum of $418.20; that upon so reaching the plaintiff's dock the defendants Clark and Erhart, as such master and agent, demanded pay of the plaintiff for the damages so sustained, and refused to deliver the salt then on board unless the plaintiff would pay such damages; that the plaintiff then refused to pay such damages, or to receive the salt subject to charges for such damages, but offered to pay and tendered payment for transporting 818 barrels, so then on board, at the rate of ten cents per barrel, and, in addition, to pay the handling charges, but the defendant refused to accept the offer; that thereupon the vessel left the plaintiff's dock, and proceeded to the dock of the Superior Warehouse Company, and unloaded the same in their warehouse, under instructions from the master not to deliver the same to the plaintiff, except upon the order of Erhart; that June 20, 1895, Erhart gave the plaintiff an order upon the Superior Warehouse Company, to deliver to the plaintiff the salt so on board, but before the same was acted upon Erhart countermanded the order, and directed the Superior Warehouse Company not to deliver the salt to the plaintiff; that the plaintiff then duly demanded the salt from the defendants, and upon their refusal to deliver the same commenced this action, and replevied the salt, and delivered the same to the plaintiff, who still had the possession thereof, and that the value thereof was $600; that the charges of the Superior Warehouse Company for receiving and storing the salt since the commencement of this action were $61, which had been paid by the owners of the vessel; that the Saginaw Valley was delayed one day at Marine City and St. Clair by reason of the plaintiff's failure to furnish the 4,182 barrels of salt mentioned, but the defendants made no claim to the plaintiff at the time for demurrage for such delay, nor did they set up any specific claim for demurrage in their answer, but Warehouse & Builders Supply Co. vs. Galvin and others. did claim the same on the trial under the general denial, but the proof thereof was rejected by the court; that the plaintiff's damages for such detention of the salt were six cents, and the charges for transporting 818 barrels were $81.80, and the cost of unloading was $12; that the Saginaw Valley so received the salt from the Michigan Salt Works, from which the plaintiff had purchased the same and was the owner thereof. As conclusions of law, the court found, in effect, that the plaintiff was entitled to judgment against all of the defendants for the possession of the salt so replevied; and a judg ment against all the defendants for six cents damages and the costs and disbursements in this action, to be taxed, and ordered judgment accordingly. From the judgment so entered thereon the defendants appeal. For the appellants there was a brief by H. H. Grace and H. R. Spencer, and oral argument by Mr. Grace. For the respondent the cause was submitted on the brief of Frederick II. Remington. He contended, inter alia, that it is established that the shipowner has no lien upon the goods shipped for the freight upon those not shipped, but is left to an action for damages. Phillips v. Rodie, 15 East, 547; Birley v. Gladstone, 3 Maule & S. 205; Gray v. Carr, L. R. 6 Q. B. 522. The carrier's lien is a particular or specific lien attaching only to the specific goods. in his possession, and in general only secures the unpaid price of carriage of those specific goods. 1 Jones, Liens, SS 265-281; Crommelin v. N. Y. & II. R. Co. 4 Keyes, 90; Leonard's Ex'rs v. Winslow, 2 Grant (Pa.), 139; Hartshorne v. Johnson, 7 N. J. Law, 108; Butler v. Woolcott, 2 Bos. & P. N. R. 64; 8 Am. & Eng. Eney. of Law, 975. The state court had jurisdiction. Crawford v. Roberts, 50 Cal. 235; Southern Dry Dock Co. v. The J. D. Perry, 23 La. Ann. 39; Leon v. Galceran, 11 Wall. 185; Rake v. The Potomac, 6 Bush, 25; Parisot v. Helm, 52 Miss. 617; Bohannan v. Ham |