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

Statement of the Case.

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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.

Judgment reversed.

MR. JUSTICE HARLAN, MR. JUSTICE BREWER and MR. JUSTICE MCKENNA dissent.

UNITED STATES v. DIECKERHOFF.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

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 authority of the collector to accept it.

Under such a bond the obligation is fixed and the Government is not required 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.

202 U. S.

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 is proper.

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

Argument for Respondents.

202 U.S.

ment for twice the value of the package called for. But if the bond as executed had strictly followed the language of section 2899, under the authority of Clark v. Barnard the Government would have been entitled to demand a judgment for twice the estimated value of the goods in the invoice which contained the unreturned package. Secs. 2901, 2939, Rev. Stat. Courts of equity will not interfere in cases of forfeiture for the breach of covenants and conditions when there cannot be any just compensation. Story, Eq. Jur. §§ 1324, 1326; Pomeroy, Eq. Jur. § 381.

The clause authorizing discharge of the bond upon payment of double the estimated value of any unreturned package is not specifically provided for by section 2899, Revised Statutes; but it is not prohibited and, being less onerous than what might have been demanded, one who voluntarily assented thereto may not complain on that account. Moses v. United States, 166 U. S. 571, 586. The Secretary of the Treasury or his agent, the collector, has authority to take common-law bonds and to stipulate for liquidated damages therein. United States v. Tingey, 5 Pet. 115; United States v. Bradley, 10 Pet. 343; United States v. Hodson, 10 Wall. 395; Jessup v. United States, 106 U. S. 147; Constable v. National Steamship Co., 154 U. S. 79; The S. Oteri, 67 Fed. Rep. 146; Stephenson v. Monmouth Min. & Mfg. Co., 84 Fed. Rep. 115; Grady v. United States, 98 Fed. Rep. 240.

If the clause permitting payment of twice the value of an unreturned article is invalid the defect is cured by those provisions in the bond which follow the language of the statute. The conditions being severable, the authorized one is good. United States v. Mora, 97 U. S. 413.

Mr. W. Wickham Smith, with whom Mr. John K. Maxwell was on the brief, for respondents:

No damage having been sustained by the Government there can be no recovery under $961, Rev. Stat. United States v. Duys, 112 Fed. Rep. 875.

A sum of money in gross, to be paid for the non-performance of an agreement, is considered as a penalty, the legal operation of which is to cover the damages which the party, in whose favor the stipulation is made, may have sustained from the breach of contract by the opposite party. It will not, of course, be considered as liquidated damages; and it will be incumbent on the party who claims them as such to show that they were so considered by the contracting party. Taylor v. Sandiford, 7 Wheat. 11; Van Buren v. Digges, 11 How. 461. See also Watts v. Connors, 115 U. S. 353; Bignall v. Gould, 119 U. S. 495; Chicago House Wrecking Co. v. United States, 106 Fed. Rep. 385; Manufacturing Co. v. Camp, 65 Fed. Rep. 794.

Under the customs administrative act a very similar bond was considered in United States v. Cutajar, 59 Fed. Rep. 1000; S. C., 67 Fed. Rep. 530, where it was held that, the statute not having fixed the bond, the Secretary of the Treasury was not authorized to impose the limit of bond but only the amount proved to be due under it.

MR. JUSTICE DAY delivered the opinion of the court.

An action was brought in the Circuit Court to recover upon a certain redelivery bond purporting to be executed under cover of section 2899, Rev. Stat. The respondents, prnicipals on the bond, were partners, as Dieckerhoff, Raffloer & Co. Achelis and Boker executed the bond as sureties. On January 13, 1897, Dieckerhoff, Raffloer & Co. imported by the steamship Bovic certain merchandise which was entered in the New York custom house and consisted of seven packages. These were described in two invoices and are numbered 417 to 421, 983, 984. Package No. 418 was designated by the collector to be sent to the public stores for examination and appraisal; the others were turned over to the importer under section 2899, Rev. Stat. The estimated value of the entire importation, $1,522, was indorsed on the bond. Within ten days after the examination and appraisal of package No. 418 the collector ordered respondents to return package No. 420. This package

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