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as it joined in the management of the same, it was liable for nine-fortieths of the expenses, which constituted the debts of the firm. 69 Ohio St. 160. A decree was entered to that effect, and the Bank brought the case here.
It is objected at the outset that this court has no jurisdiction because the specific question was not raised sufficiently upon the record. But at the trial the Bank objected that under the statutes of the United States it could not be held liable as a partner, following the frame of the bill and meeting the ruling of the court. Then, when the Supreme Court, after discussion of the statutes, imposed the modified liability and sent the case back, it objected that under the same statutes it could not be held liable for any proportion of the debts of the firm, and took this question on exceptions again to the Supreme Court. It showed at every stage its intention to rely upon the United States banking laws for immunity, and it would be an excessive requirement to hold the Bank bound in the first instance to anticipate the specific and qualified form in which the immunity finally was denied. In addition to the foregoing facts, all of which appear on the record, the Supreme Court made a certificate part of its record and judgment, to the effect that it became and was material to consider whether the Bank had power under Rev. Stat. $8 5136, 5137, to become liable for the nine-fortieths as above stated and that the decision was against the claim of the plaintiff in error. Marvin v. Trout, 199 U. S. 212, 223; Cincinnati Packet Co. v. Bay, 200 U. S. 179. Of course such a claim of immunity under the laws of the United States, if sufficiently set up, can be brought to this court. California Bank v. Kennedy, 167 U. S. 362. See Meyer v. Richmond, 172 U. S. 82.
The question of substantive law presented is not without difficulty. It is not disposed of by the general proposition that a national bank may take by way of security property in which it is not authorized to invest, and may become owner of it by foreclosure or in satisfaction of a debt. It is not disposed of even by the decisions that it may acquire stock in a corporation
in this way, First National Bank of Charlotte v. National Exchange Bank, 92 U. S. 122, and so subject itself to the liability of a stockholder for the corporate debts. National Bank v. Case, 99 U. S. 628; California Bank v. Kennedy, 167 U. S. 362, 366, 367; First National Bank of Ottawa v. Converse, 200 U. S. 425, 438, a proposition not shaken by Scott v. Deweese, 181 U.S. 202, 218. For it does not follow that because the interest in a partnership is represented by a paper certificate in form more or less resembling a certificate of stock in a corporation and transferable like it, a national bank can take the partnership certificate to the same extent that it could take the stock.
As the Supreme Court of Ohio assumes such partnerships and certificates to be valid we assume them to be. Wells v. Wilson, 3 Ohio, 425; Walburn v. Ingilby, 1 Myl. & K. 61, 76; Re The Mexican & South American Co., 27 Beav. 474, 481; S. C., 4 De G. & J. 320; Philips v. Blatchford, 137 Massachusetts, 510. We may assume further, in accordance with a favorite speculation of these days, that philosophically a partnership and a corporation illustrate a single principle, and even that the certificate of a share in one represents property in very nearly the same sense as does a share in the other. In either case the members could divide the assets after paying the debts. But from the point of view of the law there is a very important difference. The corporation is legally distinct from its members, and its debts are not their debts. Therefore, when a paid-up share in a corporation is taken, no liability is assumed, apart from statute, but simply a right equal in value to a corresponding share in the assets and good will of the concern after its debts are paid. If the right is worth something it is a proper security, and if it is worth nothing no harm is done. It is true that a statute may add a liability, but when, as usual, this is limited to the par value of the stock, it has not been considered to affect the nature of the share so fundamentally as to prevent a national bank from taking it in pledge, with qualifications, as it might take land or bonds.
But to take a share by transfer on the books means to be
come a member of the concern. The person who appears on the books of the corporation as the stockholder is the stockholder as between him and the corporation, and his rights with regard to the corporate property are incident to his position as such. National Bank v. Case, 99 U. S. 628, 631; Pullman v. Upton, 96 U. S. 328. This does not matter, or matters less, in the case of a corporation, for the reasons which we have stated. But when a similar transfer is made of a share in a partnership it means that the transferee at once becomes a member of the firm and goes into its business with an unlimited personal liability, in short, does precisely what a national bank has no authority to do. This the Supreme Court of Ohio rightly held beyond the powers of the Bank. U. S. Rev. Stat. $$ 5136, 5137. It is true that it has been held that a pledgee may escape liability if it appears on the certificate and books that he is only a pledgee. Pauly v. State Loan & Trust Co., 165 U. S. 606; Robinson v. Southern National Bank, 180 U. S. 295; Rankin v. Fidelity Trust Co., 189 U. S. 242, 249. No doubt the security might be realized without the pledgee ever becoming a member of the firm. It is not necessary in this case to say that shares like the present could not be accepted as security in any form by a national bank. But such a bank cannot accept an absolute transfer of them to itself. It recently has been decided that a national bank cannot take stock in a new speculative corporation, with the common double liability, in satisfaction of a debt. First National Bank of Ottawa, v. Converse, 200 U. S. 425. A fortiori, it cannot take shares in a partnership to the same end.
We are of opinion that with the liability as partner all liability falls. The transfer of the shares to the Bank was not a direct transfer of a legal interest in the leasehold, which was in the hands of trustees. It was simply a transfer of a right to have the property accounted for and to receive a share of any balance left after paying debts, and the acquisition of this right was incident solely to membership in the firm. If the membership failed the incidental rights failed with it, and with the
rights the liabilities also disappeared. Becoming a member of the firm was the condition of both consequences. As the Bank was not estopped by its dealings to deny that it was a partner, it was not estopped to deny all liability for partnership debts. See California Bank v. Kennedy, 167 U. S. 362, 367. It seems to us unnecessary to add more in order to show that the claim against the plaintiff in error must be dismissed.
MR. JUSTICE HARLAN, MR. JUSTICE BREWER and MR. JUSTICE MCKENNA dissent.
UNITED STATES v. DIECKERHOFF.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEC
No. 228. Argued April 17, 1906.-Decided May 14, 1906.
A bond given by an importer to a collector of customs and purporting to
be executed under cover of § 2899, Rev. Stat., conditioned in double the value of packages delivered to the importer by the collector and to be forfeited if such packages are opened without consent of the collector and in presence of an inspector, or if not returned to collector on his demand therefor, is a valid bond, for, although not conditioned in express words of the statute, it does not run counter thereto and it is within the au
thority of the collector to accept it. Under such a bond the obligation is fixed and the Government is not re
quired to prove any actual loss or damage but is entitled to recover the full amount specified in the bond-double the value of the package ordered to be returned-as a definite sum, to be paid by the importer for nonfulfillment of his statutory duty; and this obligation is not affected by anything contained in § 961, Rev. Stat., limiting recoveries
on forfeitures to amount due in equity. Where Congress has provided a specific penalty for failing to comply with
a statutory provision and obligation, it is not within the province of courts of equity to mitigate the harshness of the penalty or forfeiture or to grant relief running directly counter to the statutory requirements.
The facts are stated in the opinion.
Argument for the United States.
Mr. J. C. McReynolds, Assistant Attorney General, for the United States:
The purpose of Congress, clearly expressed in section 2899, Revised Statutes, is that all imports shall be held pending examination, except when the collector, upon the owner's request, may decide that sample packages can be relied on to reveal the nature of all. To expedite deliveries and favor importers the statute permits them—the collector assenting-to withdraw their merchandise, except the samples, provided bond be given to return the same within ten days if called for. The manifest purpose is to subject all the imports to inspection whenever the Government officers conclude that course
The redelivery bond taken upon request of the importer is purely voluntary. Much more is involved than mere pecuniary loss to the Government. The articles may be contraband; they may be necessary evidence to punish perjury; they always furnish the best means of ascertaining values, false descriptions, etc.
Section 2899, Revised Statutes, permits demand for a separate, complete bond for each importation; but this would entail much inconvenience upon large importers, and the Secretary of the Treasury, by regulation dating back to 1857, Customs Regulations, article 391, allows a general bond upon which the value of any consignment may be indorsed. In the present case all parties voluntarily assented to the arrangement and the matter stands as if a single bond of like tenor for twice the value of the merchandise had been executed.
The recovery is not limited to the money loss sustained by the Government. Clark v. Barnard, 108 U. S. 436; Smythe v. United States, 188 U. S. 156; Nilson v. Jonesboro, 57 Arkansas, 168, 177; State v. Hall, 70 Mississippi, 678, 682; United States v. Montell, Taney's Cir. Ct. Dec. 47; United States v. Hatch, 1 Paine, 336; United States v. Pingree, 1 Sprague, 339; Andrews' Revenue Laws, 102.
The Government pursued the proper course by asking judg