IN

vania.

The defendant in error brought_suit in the|| District Court of Philadelphia, for the recovery of certain penalties alleged to have been illegally collected under the internal revenue laws. The case was removed to the court below, and judgment there given for the plaintiff. Hence this writ of error.

The case is fully stated by the court.
Messrs. Charles Devens, Atty-Gen., and
Edwin B. Smith, Asst. Atty-Gen., for plaint-
iff in error.

Mr. James E. Gowen, for defendant in er

ror.

Mr. Chief Justice Waite delivered the opinion of the court:

implication.

the States for the Eastern District of Pennsyl- must be expressly imposed or they cannot be enforced. Full power is given in section 122, by reference to the other provisions of the internal revenue law, for the collection of the tax and penalty there provided for; but it nowhere appears, by reference or otherwise, that it was the intention of Congress to add to the one penalty which is expressly given for the failure to do what that section requires. As has been said, it is conceded that the addition of five per cent. and interest provided for in section 119 applies only to individual incomes. In this connection it is a noticeable fact that although by section 8 of the Act of March 2, 1867, 14 Stat at L., 473, a reduction was made from ten per cent. to five per cent. and interest at the rate of one per cent. a month in all cases where a penalty of ten per cent. had been imposed for any failure to pay any internal revenue tax, it was deemed necessary in section 13 of the same Act, 14 Stat. at L., 480, to amend section 119 specially, so as to reduce in the same way the additional per centage of ten per cent. imposed by that section. If it had been supposed that the penalties prescribed in the other parts of the Act for failure to pay taxes applied to taxes upon incomes, this special amendment would not have been necessary. But if they did not apply to section 119, it is difficult to see how they can to section 122. As it was supposed to be necessary to make express provision in section 119 for the payment of this additional percentage in order to charge the tax payer, and it was omitted in section 122, the conclusion is irresistible, that it was the intention of Congress to impose no other penalty for a failure to comply with the requirements of this section than the one which is specifically given.

In Erskine v. R. R. Co.,94 U. S.,619 [XXIV., 133], we decided that the only penalty to which a corporation was liable for default under section 122 of the Internal Revenue Act of June 30, 1864, 13 Stat. at L., 284, as amended July 13, 1866, 14 Stat. at. L.,138, was that of $1,000, specially provided for in that section. We are now asked to review that ruling; but after a careful consideration of the elaborate arguments which have been submitted, we are satisfied that it was right. The language of the section to be construed is as follows: "And for any default in making or rendering such list or return, with the declaration annexed, or of the payment of the tax as aforesaid, the company making such default shall forfeit as a penalty the sum of $1,000; and in case of any default in making or rendering said list or return, or of the payment of the tax or any part thereof as aforesaid, the assessment and collection of the tax and penalty shall be made according to the provisions of law in other cases of neglect and refusal." In Erskine's case we were asked to hold the company liable in case of default, for the penalty of five per cent. and interest at the rate of one per cent a month, provided for in section 119, as amended, 13 Stat. at L., 288; 14 Stat. at L., 480; but we decided that this provision applied only to cases of default in pay ment of the duties imposed by that section. The correctness of that ruling is now conceded; but it is claimed that the company is liable for a penalty of five per cent. and interest at the rate of one per cent. a month, under section 28 of the Act of June 30, 1864, as amended July 13, 1866, 14 Stat. at L., 106; section 11 of the Act of July 13, 1866, 14 Stat. at L., 150, and section 8 of the Act of March 2, 1867, 14 Stat. at L., 473. The last named Act simply provides that when for a failure to pay a tax at the time and in the manner provided by law a penalty of ten per cent. additional upon the amount of the tax so due and unpaid had been exacted, the person or persons so failing or neglecting to pay the tax, instead of paying ten per cent., should pay five per cent. and interest at the rate of one per cent a month. The sections of the other Acts referred to were evidently intended to apply to taxes and duties included in the regular annual and monthly lists required by law

to be made out and placed in the hands of collectors, and not to the taxes on interest and dividends collected through or from the corporations, under the provisions of section 122. Pen

We see nothing in the Act of July 14, 1870, 16 Stat. at L., 260, under which a portion of the taxes paid by the defendant in error was assessed, to manifest any intention on the part of Congress to add to the penalties imposed by section 122 while that section was in force. The penalty of $1,000 is confined to a default in making the required return, instead of default in making the return or in making the payment, as it was in section 122. In other respects the provisions as to penalties in the two Acts are substantially the same.

The judgment is affirmed.

MATHIAS TERHUNE, Appt.,

v.

JOHN PHILLIPS ET AL.

(See S. C., 9 Otto, 592, 593.)

Patent law-judicial notice-invention.

1. This court will take judicial notice that a thing patented was known and in general use long before the issuing of the patent.

2. The substitution of metal for wood is destitute

both of patentable invention and utility.
[No. 106.]
Submitted Dec. 24, 1878. Decided Jan. 27, 1879.

APPEAL from the Circuit Court of the Unit

ed States for the Northern District of Illinois.

The appellant brought suit in the court below,

for the alleged infringement of a certain patent for metallic corner sockets of show cases. The defense alleged a lack of novelty in the patent. The court entered a decree dismissing the bill, from which the complainant appealed.

The case is sufficiently stated by the court. Messrs. J. W. Merriam and L. L. Coburn, for appellant.

No counsel appeared for appellees.

Mr. Justice Swayne delivered the opinion of

the court:

The determination of this case is controlled by Brown v. Piper, 91 U. S., 37 [XXIII., 200]. We cannot fail to take judicial notice that the thing patented was known and in general use long before the issuing of the patent. The substitution of metal for wood was destitute both of patentable invention and utility. The admission of improper testimony, if it occurred, was, therefore, immaterial. The case of the appellant as it appears in the record, without any testimony, is clear and conclusive against

him.

The decree of the Circuit Court is affirmed. Cited 109 U. S., 101, 102; 111 U. S., 606; 17 Blatchf., 401; 19 Blatchf., 207.

THOMAS R. MILLS, JR., Admr., etc., of the
Estate of GEORGE HALL, Deceased, Piff. in
Err.,

v.

LEVI H. B. SCOTT.

(See S. C., 9 Otto, 25-30.)

Georgia Statute of Limitations-action against stockholder-action of debt-excessive judgment.

1. The Georgia Statute of Limitations of Mar. 16, 1869, does not commence to run against administrators until twelve months from the date of their appointment and qualification.

of Savannah, Georgia, amounting to over $100,000. The deceased was, on the first of January, 1860, and up to the time of his death the owner of one thousand shares of the capital stock of that bank, of the nominal value of $100a share. A clause in the charter of the bank provided that "The persons and property of the stockholders" should be liable for the redemption of its bills and notes at any time issued, in proportion to the number of shares held by them. The plaintiff was the owner of the bills in suit, and as they were not paid on presentation, he brought an action upon them against the bank in the Circuit Court of the United States for the Southern District of Georgia, and recovered judgment, upon which execution was issued and returned unsatisfied. He then brought this action to charge the estate of the deceased, Hall, under the provision of the char| ter mentioned.

To the declaration the defendant pleaded the general issue and the Statute of Limitations of March 16, 1869, requiring actions for the enforcement of rights of individuals under Acts of incorporation or by operation of law, which accrued prior to June 1, 1865, to be brought before the first of January, 1870, or be forever barred. To the special plea the plaintiff interposed a demurrer, and it was agreed in arguing it that the following facts should be considered as set forth in the plea, namely: that George Hall was domiciled in Connecticut, and died there in 1868, leaving a will; that there was no administration in Georgia on his estate until August 9, 1869, when letters of administration ad colligendum were granted to the defendant, Mills; and that permanent letters of administration, with the will annexed, were granted to him on June 7, 1869.

The court sustained the demurrer and struck out the plea. The case was then tried upon the general issue, and the plaintiff obtained a verdict for the sum of $100,000, of which sum $31,354 was to be made out of the property of 2. In that State an action of debt will lie against the deceased, then in the hands of the adminisa stockholder of an insolvent bank, or his administrator, and the remainder out of property which trator, to recover the amount he is liable to pay for the debts of the bank, where the amount of the bank's outstanding indebtedness and the number of shares held by the stockholder can be stated. 3. Actions for debt will always lie where the amount sought to be recovered is certain, or can be ascertained from fixed data by computation..

4. Where the recovery in such action is for too great an amount, the cause will be remanded to the court below with directions to grant a new trial,

unless the plaintiff consent to remit from the judg

ment the excess.

[No. 119.]

Argued Jan. 16, 1879. Decided Feb. 3, 1879.

IN ERROR to the Southern District of Ore.

N ERROR to the Circuit Court of the Unit

gon.

The case, which arose in the court below, is fully stated in the opinion.

might subsequently come into his hands. Upon this verdict, judgment being entered, the defendant brought the case to this court on a writ of error.

The principal questions presented for our consideration are: 1, whether the Statute of March 16, 1869, is a bar to the action; and, 2, whether an action at law by a bill-holder to charge a stockholder will lie under the charter of the bank; and, if so, whether the declaration will sustain the finding of the jury.

The Statute of March 16, 1869, was intended to bring all claims to an early determination.

It

was passed, as recited in its preamble, on ac

count of the confusion which had "grown out of the disturbed condition of affairs during the late war," and because of doubts entertained relative to the law of limitation of actions. "which should be put to rest." It was a meas

Messrs. Walter S. Chisholm, Julian Hartridge and C. D. Willard, for plaintiff in error. Mr. A. T. Akerman, for defendant in er-ure well calculated to bring disputed controver

ror:

Mr. Justice Field delivered the opinion of

the court:

This is an action at law against the adminis trator of the estate of George Hall, deceased, upon bills of the Merchants' and Planters' Bank

sies to a speedy settlement. The time prescribed within which actions were to be brought was only nine months and fifteen days. In the case of Terry v. Anderson, 95 U. S., 628 [XXIV., 365], it was held by this court that the Act was not open to any constitutional objection because of the shortness of this period. The question

in such cases, the court said, was, whether the time allowed was, under all the circumstances, reasonable; and of this the Legislature of the State was primarily the judge, and its decision would not be overruled unless a palpable error had been committed. Looking at the circumstances under which the Legislature had acted, amidst the disasters which had affected the fortunes, property and business of almost every one in the State, the court could not say that the time mentioned was unreasonable. "Society demanded, " observed the Chief Justice, "that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things;" and for that purpose, whilst the obligations of old contracts could not be impaired, "their prompt enforcement could be insisted upon or an abandonment claimed."

proportion that the shares held by him bear to
all the shares of its capital stock, which any
bill holder can enforce, upon the insolvency of
the bank, by separate action to the extent of his
claim. Lane v. Morris, 8 Ga., 468; Adkins v.
Thornton, 19 Ga., 325. Such liability may, un-
doubtedly, be enforced by a suit in equity, and
in many cases such a proceeding would seem to
be the only appropriate one, as was held by this
court in Pollard v. Bailey, 20 Wall., 520 [87 U.
S., XXII.,376]; see, also, Terry v. Tubman, 92 U.
S.,156[XXIII.,537]. The proportion of the in-
debtedness with which the stockholder is to be
charged can be ascertained only upon taking an
account of the debts and stock of the bank, and
a court of equity is the proper tribunal to bring
before it all necessary parties for that purpose.
But by the law of the State, as declared by its
highest tribunal, an action for debt will lie
where, the amount of the bank's outstanding
indebtedness and the number of shares held by
the stockholder can be stated.
In such cases,
the extent of the latter's liability is fixed, and
the amount with which he should be charged
is a matter of mere arithmetical calculation. Ac-
tions for debt will always lie where the amount
sought to be recovered is certain, or can be as-
certained from fixed data by computation. Here
the declaration states the number of shares of
the capital stock of the bank to be twenty thou-
sand, and that one thousand were held by the
deceased. His liability, therefore, was fixed at
one twentieth of the entire indebtedness of the
bank on the bills issued by it, which is averred
to be $800,000. The only recovery, therefore,
which the declaration permitted was for $40,000
and not for $100,000, which the jury found.
This error in the record is not specifically point-

There is in the statute no exception in terms of any class of cases; yet such a construction must be given to its provisions as not to impair the operation of other laws, which it is not reasonable to suppose the Legislature intended to repeal. The law of the State relating to the administration of the estates of deceased persons contains various provisions, which, in many particulars, would be defeated if the Statute of March 16, 1869, was held applicable to actions in behalf of the estates or against them. Thus, administrators are allowed twelve months from the date of their qualification to ascertain the condition of the estates confided to their charge; creditors are required to present their claims within this period; and no suits to recover a debt of the decedents can be brought until its expiration. Secs. 2530, 2548, 3348. The Supreme Court of the State has accordingly held that the Statute of 1869 does not affect this exemptioned out in the brief of counsel for the defendant, from suit for the period designated, but that its spirit and equity require that suits against administrators upon the claims mentioned should be brought within a similar period after twelve months from the grant of administration; that is, within nine months and fifteen days afterwards. Such is the purport of its decision in Moravian Seminary v. Atwood, 50 Ga., 382; and that decision has since been followed in several cases. Edwards v. Ross, 58 Ga., 147. In conformity with them we must hold that the statute was not a bar to the present action. There was no administrator of the estate of Hall appointed in Georgia, even for temporary purposes until April 9, 1869, and this action was com menced December 30, 1870, which was within the period required after the expiration of the year of exemption.

who was not present at the argument; but it is evident that it was at the erroneous apportionment of the indebtedness to the estate of the deceased that he aimed, when insisting that the remedy of the plaintiff should have been by a bill in equity, and not in this form of action.

Be this as it may, where an error in the amount recovered is apparent upon the record, and it could not have been remedied by an amendment of the pleadings, this court will, of its own motion, in the interests of justice, direct that it be corrected, and, if necessary, order a new trial or further proceedings for that purpose.

This cause will, therefore, be remanded to the court below, with directions to grant a new trial, unless the plaintiff, within a period to be designated by the court, consent to remit from the judg ment the excess over $40,000.

UNITED STATES, Appt.,

v.

The OAKES A. AMES AND OLIVER AMES,
Exrs. of OAKES AMES, Deceased, ET AL.

Whether the present action can be maintained, it being an action at law by a bill holder to charge the estate of a deceased stockholder, depends upon the construction given to the clause of the charter of the bank, prescribing the personal liability of the stockholders. language of the clause, so far as it bears upon this case, is that "The persons and property of the stockholders shall at all times be liable, pledged and bound for the redemption of bills and notes at any time issued, in proportion to the number of shares that each individual and corporation may hold and possess." This provision is held by the Supreme Court of the State to create a personal liability on the part of the stockholder for all the notes of the bank in the

(See 8. C., 9 Otto, 35-47.) Bond in admiralty-recall of property-judg ment-joint contractors-partnership—demurrer-relief in equity.

feited, and a bond is given by its claimant for its 1. Where property is seized in admiralty, as forreturn to him, such bond becomes the substitute

Are the rights of the United States, after a condemnation, to be measured by and confined to the stipulation or release bond given in such In the court of chancery, executors and ad- a cause? If so, then if the stipulation or reministrators are considered as trustees, and that lease bond proves to be insufficient, and final court exercises original jurisdiction over them process thereon is returned wholly unsatisfied in favor of creditors, legatees and heirs, in ref- and the proceeds of the property condemned as rence to the proper execution of the trust. A forfeited to the United States for violation of its single creditor has been allowed to sue for his rules of war, can be traced to the hands of perdemand in equity, and obtain a decree for pay-sons not bona fide purchasers, within the jurisment out of the personal estate, without taking a general account of the testator's debts. AttyGen. v. Cornthwaite, 2 Cox, Eq., 43; Adams, Eq., 257.