can it well be doubted, that the District Court had jurisdiction by bill of review in a proper case to set aside and correct its former decree. The present bill does not set out that bill of review, or even its substance. It does not show whether any defense was made to it by the United States, or any process served on any of its officers. It gives no more of the proceedings in that case than it chooses, and this is scant indeed. The case was heard on demurrer to this bill, which was dismissed, and of course every presumption not inconsistent with the allegations of the bill is to be made in favor of the decree of the District Court. It is, therefore, to be presumed that, on the questions raised by the bill of review, there was a full and fair hearing, and that the rights of the parties were duly considered. The only impeachment of that decree is in a single paragraph of the present bill, which reads as follows: "And your orator charges that the action of said United States District Court for the Southern District of California in the premises, in setting aside and vacating its former decree and confirming said claim, was irregular and without authority of law, and that said former decree rejecting said claim had become final." A decree of a court of record is not to be set aside, seventeen years after it has been rendered, because it was irregular nor because it was erroneous. We have already said that the court had jurisdiction of the matter, and if its action was in any other respect without authority of law, it surely should have been shown what that was. The decree rejecting the claim had only become final in the sense that any other decree had which settles the rights of the parties; and like any other decree, it was subject in a proper case to be opened by a bill of review within five years after it was made. There is no allegation of fraud in the decree of the court or in procuring it; no imputation upon the court. The present bill alleges that no new testimony was offered on the hearing of the bill of review, but that the bill itself was founded on the allegation that the former decree was erroneous, and ought to be reversed for error apparent in the record. It was so reversed, and the final decree simply confirmed the action of the Board of Commissioners. It is impossible to hold that such a decree should be opened for a new hearing on such allegations as these, so long after it was made: no fraud charged against it: no error of law pointed out: no want of jurisdiction: a loose, disconnected effort to show that, if another hearing could be had, the result would be different. The bill also alleges that the patent issued by the United States does not conform to the survey which was finally approved in the surveyor's office. This patent bears date February 16, 1875, and the present bill was filed two years after. The discrepancy alleged between the amount of land covered by the survey and that covered by the patent is very large. The bill was filed within a reasonable time after the patent issued. We should be very much inclined to sustain any bill showing such a squandering of the public land if the allegations had been sufficiently specific to call upon the Such a bill must rest, defendant to answer. however, on the ground of fraud or mistake, and it is too clear for argument that the particulars of the fraud, or the manner in which the mistake occurred should be set out. No copy of the patent is exhibited, nor of the survey with which it is said to differ. There is only the general allegation that certain persons, not named therein, conspired together, and by false and fraudulent representations and suppression of facts imposed upon the officers connected with the Land-Office at Washington, and fraudulently procured the patent to be issued. No names of the parties who committed the fraud, no names of the persons or designation of the officer imposed on, are given. It is at war with the whole character of proceedings in courts of equity to call in aid its extraordinary power to set aside such solemn public record as a patent of the United States on such allegations as these. We had occasion to discuss this matter so recently in the case of Marquez v. Frisbie, 101 U. S., 473 [XXV., 800], that we will content ourselves with a reference to that case. It is urged that, after the court had sustained a demurrer to the bill, the complainant asked leave to amend; which was refused, on the ground that no amendment could be made which would justify the relief prayed. The right to amend after the demurrer is sustained, must rest largely, if not wholly, in the discretion of the court; and while we are not prepared to hold that in no case will the action of the court in such matter be reviewed here, we have no hesitation in saying that the abuse of this discretion must be made plain, to authorize us to do so. In the case before us, there is no suggestion of the nature of the amendment proposed to be made. No amendment to the bill was offered for the consideration of the court, nor do we know in what particulars the parties desired to amend. We have no foundation, therefore, on which to affirm that the court erred in refusing the request. The decree of the Circuit Court is affirmed. James H. McKenney, Clerk, Sup. Court, U. S. Cited-104 U. S., 426. 1880. Mr. Geo. Willey, for appellees. DENSMORE V. SCOFIELD, Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity by the complainants. The bill was brought upon a re-issued patent. The summation and claims, as set forth in the re-issue, are as follows: "The nature of our invention consists in combining two large, light, tight, firm, stout tanks with an ordinary railway car, making the tank practically a part of the car, so as to carry the desired substance in bulk in the car itself, or in a permanent fixture or part thereof, instead of in barrels, casks, hogsheads, tierces, or other movable vessels or packages, as is now universally done on railway cars, and thereby save carrying the weight of the barrels, casks, hogsheads, tierces, or other movable vessels or packages. "What we claim as our invention, and desire to secure by letters patent, are, "First, The two tanks B, B, or their equivalent, when constructed and operating in combination with an ordinary railway car, substantially as and for the purposes set forth. "Second, The two tanks B, B (or their equivalent), when set directly (or nearly so) over the car trucks, and when constructed and operating in combination with an ordinary railway car, substantially as and for the purposes set forth. "Third, The frames C, C, C, C, the bolts 1, 2, 3, and 4, and the cleats Í, H, H, H, when constructed and operating in combination with tanks B, B, the man-holes and manheads D,D, and the faucets E, E, and the runway G, when constructed and arranged in combination with tanks B, B, and an ordinary railway car, substantially as and for the purposes set forth and described." The bill alleges infringement, and prays for an account of profits and a decree for a perpetnal injunction, and for such further relief as may be deemed proper. Among other defenses, the answer sets up that the re-issued patent is too broad and is, therefore, void, and denies infringement. We pass by these topics, because we deem it proper to dispose of the case upon a more radical and comprehensive objection. A witness, called by the appellees, testified that he was largely engaged in shipping petroleum, from 1861 to 1872. His language is: **In 1863, and prior to this and after, I shipped large quantities of it in old whaling casks holding from 14 to 8 and 10 barrels each. I shipped a great many thousands of barrels in said casks, which were sent forward, returned empty, refilled, and forwarded again. "I attach two leaves of my shipping-book, showing some shipments in casks and return casks in 1863; they are correct. "My practice was to spike down cleats to prevent the casks from shifting. In nearly every shipment there were small and large casks as The casks would go to and fro on the above. railroad many times, carrying oil, and returning in the same cars empty to be filled and shipped again by me.” Another witness testifies "That he has been general freight agent on the Lake Shore and Southern Michigan Railway and its predeces sors for about twenty years. That all this time A third witness, speaking of wooden tanks "During the year 1871, their use was discon- "A. That kind of tank car is still in use, and is giving universal satisfaction because of being tight, little or no leakage, and the liabilities to fire are less; and, in case of accident, the tank is of sufficient strength to even be thrown off a car without injury. "Q. State whether or not tanks of the kind described in the defendants' patent have gone into disuse in the carrying of petroleum generally. A. So far as I know, they have. "Q. In loading freight cars, what has always been the practice and custom in reference to loading over the trucks where the weight can be thus distributed? "A. It is the universal custom, so far as is possible, to place the weight over the trucks. These witnesses are unimpeached and uncontradicted. No This testimony leaves nothing of the substance of the plaintiffs' alleged invention. one, we apprehend, would seriously contend constitute the basis of a valid patent. See for a moment that what is left is sufficient to Brown v. Piper, 91 U. S. 37 [XXIII., 200], and of this testimony and of any testimony, upon the authorities there cited. But, irrespective looking this re-issue in the face and examining nothing that brings any of them within the its several claims by their own light, we find sphere of what is properly patentable. There pear, to use the language of appellants' brief, is no novelty and no utility. It does not apa flash of thought" by which that there was such a result as to either was reached, nor that there was any exercise of the inventive faculty, more or less thoughtful, whereby anything enduced. It strikes us that the entirety and all titled to the protection of a patent was prothe particulars of the summary and the claims are frivolous, and nothing more. 66 Patents rightfully issued are property, and are surrounded by the same rights and sanctions which attend all other property. Patentees as a class are public benefactors, and their rights should be protected. But the public has rights also. The rights of both should be upheld and they come under judicial consideration. enforced by an equally firm hand, wherever The decree of the Circuit Court is affirmed. True copy. Test: James H. McKenney, Clerk, Sup.Court, U. S. 215 UNITED STATES, ex rel., CITIZENS' NA-ance of principal and interest still due to its TIONAL BANK OF LOUISIANA, Piff. in Err., JOHN J. KNOX, Comptroller of the Currency. (See S. C., 12 Otto, 422-426.) Liability of stockholders of bank—insolvency. 1. The shareholders of an insolvent national bank are liable, individually, equally and ratably, for the debts of the bank to the extent of the amount of their stock therein. 2. The insolvency of one stockholder, or his being beyond the jurisdiction of the court, does not in anywise affect the liability of another. [No. 839.] creditors, and to direct the receiver to proceed as before to collect the amount of the new assessment. The comptroller refused, because the enforcement of such an assessment would compel the solvent shareholders to pay the sums and proportions due from the shareholders who are insolvent. He holds that no such liability is imposed on the solvent shareholders, and that he has, therefore, no right or power to make the assessment as requested. The point to be decided is whether he is clothed with this power and duty, and whether the shareholders are thus liable. The first bank law was passed February 25, 1863 ch. 58, 12 Stat. at L., 665. The last clause Argued Dec. 6, 1880. Decided Dec. 20, 1880. of section 12 is as follows: For all debts contracted by such associa ERROR to the Supreme Court of the Dis- tion for circulation, deposits or otherwise, each Itrict of Columbia. The case is fully stated by the court. error. Mr. Charles Case, for defendant in error. Mr. Justice Swayne delivered the opinion of the court: This case is a petition to the Supreme Court of the District of Columbia for a writ of mandamus directed to the Comptroller of the Currency. It was fully heard in that court upon the merits. The writ was refused and judgment was rendered against the relator for costs. This writ of error was thereupon sued out, and the case is thus brought before us for review. There is no controversy as to the facts. The only question presented for our consideration is a question of law. The case made in the record, so far as it is necessary to be stated for the purposes of this opinion, is as follows: on the 7th of April, 1874, the Crescent City National Bank of New Orleans was, and for some time had been, insolvent and in the hands of a receiver. On that day the comptroller assessed each shareholder seventy per cent upon the par value of each share of his stock, and ordered the receiver to collect the assessment. This the receiver proceeded to do by filing a bill in equity in the Circuit Court of the United States for the District of Louisiana, against all the shareholders. Thereafter he obtained a decree against all the defendants severally, who were within the jurisdiction of the court, for the amount due from each one according to the assessment, and the cause was thereupon continued to await any further assessment the comptroller might deem it proper to make, and it is still pending. The capital stock of the bank was $500,000; seventy per cent, therefore, was $350,000. This sum, if it could have been collected in full, would have paid all the debts of the bank and left a balance over. But by reason of the insolvency of many of the shareholders the assessment netted only $112,658.13, and nothing or very little more will hereafter be realized from it. From the proceeds of the assessment and other assets of the bank, eighty per cent of the principal of its debts have been paid. shareholder shall be liable to the amount of the been since and is now in force in these terms: The Act of 1863 made no provision for enforcing the personal liability of shareholders, while that of 1864,13 Stat. at L.,100, provided that it might be done through a receiver appointed by the comptroller, and acting under his direction. R. S., sec. 5234. The difference between the clause creating the individual liability as it was originally, and as it was after it was amended and altered, is obvious and striking. The change was plainly made ex industria, to prevent the possibility of doubt as to the meaning of Congress. What the effect of the clause would have been without the change is a point we are not called upon to consider. tion is a contract between the law-making powThe charter of a private corporaer and the corporators, and the rights and obligations of the latter are to be measured accordingly. of the stockholders was not liable for the debts By the common law, the individual property of the corporation under any circumstances. Here the liability exists by virtue of the statute and the assent of the corporators to its provisions, given by the contract which they entered into with Congress in accepting the charter. it is entirely clear from the language employed With respect to the character of that liability, in creating it, that it is several and cannot be made joint, and that the shareholders were not intended to be put in the relation of guarantors or sureties, "one for another," as to the amount which each might be required to pay. of the separate liability of each of the shareIn the process to be pursued to fix the amount The relator being a large creditor of the bank, whole amount of the par value of all the stock holders, it is necessary to ascertain (1), the requested the comptroller to order a further as-held by all the shareholders; (2), the amount of sessment of thirty per cent upon each share of the deficit to be paid after exhausting all the the capital stock, for the discharge of the bal-assets of the bank; (3), then to apply the rule 216 1880. that each shareholder shall contribute such sum as will bear the same proportion to the whole amount of the deficit as his stock bears to the whole amount of the capital stock of the bank at its par value. There is a limitation of this liability. It cannot in the aggregate exceed the entire amount of the par value of all the stock. The insolvency of one stockholder, or his being beyond the jurisdiction of the court, does not in anywise affect the liability of another; and if the bank itself, in such case, holds any of its stock, it is regarded in all respects as if such stock were in the hands of a natural person, and the extent of the several liability of the other stockholders is computed accordingly. Crease v. Babcock, 10 Met., 525. These rules have been applied in several well considered judgments of other courts, where the words we have italicized were not in the statutes upon which they proceeded. We have found no case in conflict with them. See Crease v. Babcock, supra; Atwood v. Bk., 1 R. I., 376; Matter of the Hollister Bk., 27 N. Y., 393; Adkins V. Thornton, 19 Ga., 325; Robinson v. Lane, 19 Ga., 337; Wiswell v. Starr, 48 Me., 401. See, also, Morse, Bkg., 503. owners as effectively as possession under the most is founded on a stale claim. Submitted Dec. 6, 1880. Decidea Dec. 20, 1880. APPEAL from the Circuit Court of the United States for the District of Indiana. The case fully appears in the opinion of the court. Messrs. James C. Denny and Charles E, Marsh, for appellants. Messrs. Azro Dyer, Asa Iglehart and J. E. Iglehart, for appellee. Mr. Justice Field deliverea the opinion of the court: This is a suit to quiet the title to certain real property in the State of Indiana, of which it is charged that one William P. Hall, who died intestate in 1857, was seised in fee. By the law of Indiana, his real estate descended to the complainants. The premises in controversy are situated in Although assessments made by the comptrol- the City of Evansville, in that part known as ler, under the circumstances of the first assess-Lamasco. They constitute a part of a fractional ment in this case, and all other assessments, suc- section in the subdivision of the public lands in cessive or otherwise, not exceeding the par value a township of the State. A small stream runs of all the stock of the bank, are conclusive upon through the section, known as Pigeon Creek, the stockholders, yet if he were to attempt to on the west of which four sevenths of the secenforce one made, clearly and palpably, con- tion lie, and on the east three sevenths. The trary to the views we have expressed, it cannot premises in suit are on the west side of the creek. be doubted that a court of equity, if its aid were invoked, would promptly restrain him by injunction. In 1831, the deceased, William P. Hall, became the owner of two undivided sevenths of the section. In 1833, proceedings were taken Nothing in this opinion is intended in any- in the Circuit Court of the county in which the wise to affect the authority of Kennedy v. Gib-section lies, at the instance of the possessor of son, 8 Wall., 498 [75 U.S., XIX.,476], and Casey v. Galli, 94 U. §., 673 [XXIV., 168]. On the contrary, we approve and re-affirm the rule laid down in those cases. an undivided interest, for a partition of the land and an assignment in severalty of the interests These proceedings reof the different owners. sulted in a partition, by which the interest of Hall was set apart out of that portion of the section lying east of Pigeon Creek. If these proDis-ceedings are valid, the claim of the complainants, as the heirs and the widow of the deceased, is without foundation. He was devested of all James H. McKenney, Clerk, Sup. Court, U. S. interest in the property in controversy several The comptroller decided correctly as to his duty in this case. The judgment of the Supreme Court of the trict of Columbia is, therefore, affirmed. True copy. Test: CATHARINE HALL ET AL., Appts. v. WILLIAM H. LAW. (See S. C., 12 Otto, 461-467.) Partition of real estate-conclusive decisioncolor of title-statutory bar-defense in eject ment stale claim. years before his death." The proceedings were taken under an Act of the State, of February, 1831, entitled "An Act to Provide for the Partition of Real Estate," the 1st section of which enacts: "That when two or more persons are proprietors of any real estate, any of whom are desirous of having the same divided, it shall and may be lawful for the Circuit Court of the county where such real estate may be situate, on the application of any such person (notice of such application having been previously given by the 1. In proceedings in Indiana to partition real estate, the order of the court appointing the commis-party so applying, for at least four weeks in some sioners is a determination that the application is sufficient, and that due notice of it has been given. 2. This conclusion is not open to collateral attack; it can only be questioned, on appeal or writ of error, by a superior tribunal invested with appellate jurisdiction to review it. It is not void because no petition or complaint appears in the record. 3. Whenever an instrument, by apt words of transfer from grantor to grantee, whether such grantor act under the authority of judicial proceedings or otherwise, in form passes what purports to be the title, it gives color of title. 4. Even if invalid, possession under it for the period prescribed by statute bars the right of the true public newspaper in the State), to appoint three disinterested freeholders, residents of said county, not related to either of the parties, as commissioners for dividing the said estate; and said commissioners having previously taken an oath or affirmation, before some justice of the peace in said county, honestly and faithfully to execute the trust reposed in them as commissioners aforesaid, shall proceed to make division of said estate, as directed by the court, among the owners and proprietors thereof, according to their 217 respective rights; which partition being made | by the said commissioners or any two of them, and return thereof being made by the said commissioners, in writing, under their hands, to said court, particularly describing the lots or portions allowed to each respective owner or proprietor, mentioning which of the owners or proprietors are minors, if any such there be, which return being acknowledged by the commissioners making the same, before any one of the judges of the court aforesaid for the said county, and accepted by the court, and entered and recorded in the clerk's office, shall be a partition of such lands, lots and tenements therein mentioned." Rev. Laws of Ind., 1838, 426. The record of the proceedings of the partition in this case consists of the order of the Circuit Court of September 12th, 1832, appointing three commissioners to divide the section between the several proprietors, and to report to the court at the next Term; their report at the next Term, in March, 1833, showing the partition made and the part assigned to each proprietor; the confirmation of the report at that Term by the court, and its apportionment of the expenses of the partition among the proprietors. Voorhees v. Bk., 10 Pet., 449; Thompson v. Tolmie, 2 Pet., 157; Comstock v. Crawford, 3 Wall., 396 [70 U. S., XVIII., 34]. The cases of Lease v. Čarr, 5 Blackf., 353, and Shaw v. Parker, 6 Blackf., 345, cited by complainants, do not support their position. In the first case, the Supreme Court of Indiana, having the proceedings in partition before it for review on writ of error, held that the petition of the appellant should show the extent and nature of his interest in the land, and that he holds it in common with the defendants, whose interests, if known to him, should also be stated; and that as the petition in that case was silent in these particulars, and merely requested the appointment of commissioners to divide the land, it was defective, and the order made thereon was erroneous. But the court did not hold or intimate that the order and subsequent proceedings were, from the defective character of the petition, absolutely void. It was the common case of the reversal of proceedings because of intervening error. If not thus corrected, the existence of the error in no respect impairs the validity and efficacy of the subsequent proceedings, or the order or judgment thereon. The distinction between erroneous and void orders and judgments is too familiar to call for extended observation, and is fully recognized, not only in the courts of Indiana, but in those of every State in the Union. Horner v. Doe, 1 Ind., 130; Doe v. Smith, 1 Ind., 451; Doe v. Harrey, 3 Ind., 104; Ashley v. Laird, 14 Ind., 222; Cox v. Matthews, 17 Ind., 367; Ecans v. Ashby, 22 Ind., 15; Waltz v. Borroway, 25 Ind., 380; Hawkins v. Hawkins, 28 Ind., 67; Comparet v. Hanna, 34 Ind., 74; Garin v. Graydon, 41 Ind., 559; Burk v. Hill. 55 Ind., 419; Hays v. Ford,55 Ind.,52; Hunter v. Burnsville, Turnpike Co.. 56 Ind., 218; Wiley v. Pavey, 61 Ind., 457. The second case, Shaw v. Parker, also came beThe validity of this partition is assailed before the Supreme Court on a writ of error, and cause no complaint or petition of the applicant for the partition appears in the record as the foundation of the proceedings, and without one it is contended that they were void. The order appointing the commissioners recites that it was proved to the satisfaction of the court that David Miller, one of the proprietors, had given due and legal notice that he would, on the third day of the court, which was that day, Sep. 12, make application for the appointment of commissioners to divide among the several proprietors thereof the fractional section. The report gives the boundaries of the section, and sets forth with proper description the portion assigned to each proprietor. It complies in its details with the requirements of the statute and is accompanied with a plat of the land showing the tracts assigned. port constituted in the language of the statute, à partition of the lands described in it. follows in its decision Lease v. Carr. We see nothing in either to impeach the validity of the order of the Circuit Court of the county appointing the commissioners, or its order conThe statute does not in terms require the ap-firming their report. Thus confirmed, the replication of the proprietor seeking a partition to be presented in writing, or, if one be presented, to be filed among the records of the court. All that it designates as necessary to authorize the court to act is, that there should be an application for the partition by one or more joint proprietors, after giving notice of the intended application in a public newspaper for at least four weeks. When application is made, the court must consider whether it is by a proper party, whether it is sufficient in form and substance, and whether the requisite notice has been given as prescribed. Its order made thereon is an adjudication upon these matters. The recitals in the order show a compliance with the statute; they show jurisdiction in the court over the subject. That jurisdiction arises upon the presentation of the application, accompanied with proper proof of previous notice of it. The order of the court appointing the commissioners is a determination that the application is sufficient, and that due notice of it has been given. This conclusion is not open to collateral attack; it can only be questioned, on appeal or writ of error, by a superior tribunal invested with appellate jurisdiction to review it. The complainants, treating as invalid the partition proceedings, sue for the undivided two sevenths of that portion of the fractional section lying west of Pigeon Creek, and assume in their bill of complaint that the title of the defendant rests upon a deed made under a decree in a suit in chancery commenced against the deceased in 1836, three years after the alleged partition. It seems that a claim was made at that time that the two undivided sevenths of the fractional section was conveyed by its then owner, Nathaniel Ewing and his wife, to one William Prince, upon a condition which had failed; that upon the death of Prince, his estate being insolvent, the Property had been sold by order of the probate Court to one William Daniel, for $45, and for the like sum had, by him and wife, been conveyed to the deceased William P. Hall; and the suit in chancery was brought by parties who had obtained another conveyance from Ewing and wife to set aside the probate sale, and to compel the deceased to convey his interest to them. The suit resulted in a decree directing the execution of a deed of the |