gatory and fruitless to effect anything, as the incumbered property, upon a sale thereof, would not bring sufficient to discharge the liens on the same, and the execution creditors would only be cast in the costs of such levy and sale.

"(12) That by reason of the premises defendants aro indebted to plaintiff, upon the coupons held by him as aforesaid, in the sum of one thousand and fifty dollars, and interest from the first day of July, 1883.

"Wherefore plaintiff prays judgment against said defendants for the sum of one thousand and fifty dollars, with interest from first July, 1883, and costs."

Thereupon the defendants demurred orally, on the ground "that the liabil ity imposed by the statutes referred to in the complaint cannot be enforced in an action at law, but by a proceeding in equity only, and, consequently, that this being a court of law, has no jurisdiction to entertain the plaintiff's case. And this question having been fully argued before the judges aforesaid, and their opinions thereupon being opposed, the point upon which they disagree is stated as follows: Whether the liability imposed upon the directors of a corporation by the provisions of the statutes referred to in the complaint can be enforced by a single aggrieved creditor in an action at law against one or more directors, or whether such creditor must proceed by a creditor's bill in equity,"

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*The statutes referred to in the complaint are the 1367th section of the General Statutes of South Carolina, the act of December 10, 1869, entitled "An act to regulate the formation of corporations," and "sundry other laws of said state." This last reference would broaden the question certified, so as to embrace the inquiry whether the remedy insisted on was conferred by any law of the state; but counsel for the plaintiffs in error disclaim reliance upon any provisions of the statutes, except those specifically referred to, which they have accordingly printed with their brief. Section 1367 of the General Statutes of South Carolina occurs in a general act on the subject of the organization and government of corporations, contained in the revision of 1882, in chapter 38, under the sub-title "of corporations organized under charters." It reads as follows:

"Sec. 1367. The total amount of debts which such corporations shall at any time owe shall not exceed the amount of its capital stock actually paid in; and, in case of excess, the directors in whose administration it shall happen shall be personally liable for the same, both to the contractor or contractors and to the corporation. Such of the directors as may have been absent when the said excess was contracted or created, or who may have voted against such contract or agreement, and caused his vote to be recorded in the minutes of the board, may respectively prevent such liability from attaching to themselves by forthwith giving notice of the fact to a general meeting of the stockholders, which they are authorized to call for that purpose. The provisions of this section shall not apply to debts of railroad corporations secured by mortgage."

This provision was a re-enactment of, and consequently superseded, a similar provision contained in section 33 of the act of December 10, 1869, under which the Marine & River Phosphate Company had been organized as a corporation, and which being a general law was subject to modification and repeal. The language of that section was as follows:

"Sec. 33. The whole amount of the debts which any such company at any time owes shall not exceed the amount of its capital stock actually paid in; and, in case of any excess, the directors under whose administration it occurs, shall be jointly and severally liable to the extent of such excess, for all the debts of the company then existing, and for all that are contracted, so long as they respectively continue in office, and until the debts are reduced to the amount of the capital stock: provided, that any of the directors who are ab

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sent at the time of contracting any debt contrary to the foregoing provisions, or who object thereto, may exempt themselves from liability by forthwith giving notice of the fact to the stockholders at the meeting they may call for that purpose."

The act of 1869 also contained the following:

"Sec. 35. When any of the officers of a company are liable, by the provisions of this act, to pay the debts of the company, or any part thereof, any person to whom they are so liable may have an action against any one or more of said officers, and the declaration in such action shall state the claim against the company and the grounds on which the plaintiff expects to charge the defendants, personally; and such action may be brought, notwithstanding the pendency of an action against the company for the recovery of the same claim or demand; and both of the actions may be prosecuted until the plaintiff obtains the payment of his debt, and the cost of both actions."

This section now appears as section 1401 of the General Statutes, but under a subdivision of "Provisions applicable solely to corporations under class I;" and this class is defined by section 1377 as "all labor, agricultural, manufacturing, industrial, mining, or companies or associations of like nature," the organization and government of which is the subject of chapter 39, entitled "Of corporations organized under general statutes." On the other hand, sec

tion 1367 of the General Statutes, which, as we have seen, corresponds to and supersedes section 33 of the act of 1869, is contained in chapter 38 of the General Statutes under the head "Of corporations organized under charters."* But section 1370 of the same chapter, under a subdivision designating "manufacturing companies," provides that "all manufacturing companies which shall be incorporated in this state shall have all the powers and privileges, and be subject to all the duties, liabilities, and other provisions contained in sections 1361 to 1369, inclusive, of this chapter, unless the said corporations be specially exempted therefrom by their respective charters."

It thus appears that, although section 35 of the act of 1869 furnished the remedy for enforcing the liability imposed by section 33 of the same act, the former has been superseded by section 1401, and the latter by section 1367 of the General Statutes, but with a totally different relation in the latter from that sustained by the corresponding sections in the former, so that it cannot be said that the action given by and described in section 1401 of the General Statutes applies as the remedy expressly prescribed for enforcing the liability imposed by section 1367. It follows that if section 1401 applies to the Marine & River Phosphate Company section 1367 does not. Either there is no such liability as is sought to be enforced in the present action, or the remedy resorted to cannot rest upon the section cited as expressly conferring it.

It is argued, indeed, on behalf of the defendants in error, that section 1367, which declares the liability of the directors in the case stated in the complaint, cannot apply, because the Marine & River Phosphate Company is not a corporation organized under a charter, but under a general law, that provision being applicable, it is said, only to those of the former description. But we deem it unnecessary to consider and decide that question, because no special remedy being prescribed by statute for enforcing the liability defined by that section from a cor.sideration of its nature, and the circumstances which are made the conditions of it, we are led to the conclusion that the only appropriate remedy in the courts of the United States is by a suit in equity.

The conditions of the personal liability of the directors of the corporation, expressed in the statute, are that there shall be debts of the corporation in excess of the capital stock actually paid in, to which the directors sought to be charged shall have assented, and this liability is for the entire excess both to the creditors and to the corporation. To ascertain the existence of the liability in a given case requires an account to be taken of the amount of the corporate indebtedness, and of the amount of the capital stock actually paid

in, facts which the directors, upon whom the liability is imposed, have a right to have determined, once for all, in a proceeding which shall conclude all who have an adverse interest, and a right to participate in the benefit to result from enforcing the liability. Otherwise the facts which constitute the basis of liability might be determined differently by juries in several actions, by which some creditors might obtain satisfaction and others be defeated. The evident intention of the provision is that the liability shall be for the common benefit of all entitled to enforce it according to their interest, an apportionment which, in case there cannot be satisfaction for all, can only be made in a single proceeding to which all interested can be made parties.

The case cannot be distinguished from that of Hower v. Henning, 93 U. S. 228, the reasoning and result in which we reaffirm It is immaterial that in the present case it does not appear that there are other creditors than the plaintiffs in error. There can be but one rule for construing the section, whether the creditors be one or many. To the question certified, therefore, it must be answered that an action at law will not lie, and that the only remedy is by a suit in equity.

The judgment is accordingly affirmed.

(112 U. S. 659)

TORRENT & ARMS LUMBER Co. v. RODGEI 8.

(December 22, 1884.)

INFRINGEMENT OF PATENTS-DAMAGES-REISSUE OF PATENTS.

On the twenty-fifth of August, 1868, letters patent were granted to E. T. for " new and improved machine for rolling saw-logs," which were afterwards assigned by the patentee to R., and on the fifteenth of July, 1873, upon the application of R., reissued letters patent were granted him for the same. In the reissue the specification is modified so as to make a radical change, not only in the purpose, but in the mechanism of the invention. It embraces a different machine, intended for different purposes, and performing different functions from that described in the original patent. On the twenty-ninth of January, 1873, letters patent were applied for, and on the twelfth of August following granted to J. T. "for certain improvements in log turners," which covered the alleged infringing machine complained of by R. as being embraced in his patent. Held, that in the action brought by R. to recover damages for the infringement of his patent the first claim of the reissued patent was void.

In Error to the Circuit Court of the United States for the Western District of Michigan.

B. F. Thurston, Geo. W. Dyer, and R. A. Parker, for plaintiff in error. C. C. Chamberlain, for defendant in error.

WOODS, J. This was an action at law brought June 25, 1879, by Alexander Rodgers, the defendant in error, against the Torrent & Arms Lumber Com pany, the plaintiff in error, to recover damages for the infringement of re issued letters patent for "a new and improved machine for rolling saw-logs," dated June 25, 1873, granted to Rodgers as the assignee of Esau Torrent, the original patentee. The lumber company pleaded the general issue, with notice that, among other things, it would give in evidence, and insist in its defense, "that the said patentee and his assignee, the plaintiff, unjustly obtained the reissued patent for matters and principles embraced in such reissue not included in the original patent or specification therefor, and for what was in fact invented by another, to-wit, John Torrent, of the city of Muskegon, who was using reasonable diligence in adapting and perfecting the same;" that John Torrent "made his application for a patent therefor on January 29, 1873, and his patent was granted August 12, 1873, and the plain

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kegon and state of Michigan, have invented a new and improved machine for turning [rolling saw] logs; and I do hereby declare that the following is a full, clear, and exact description thereof, which will enable others skilled in the art to which it appertains to make and use the same; reference being had to the accompanying drawings forming [a] part of this specification:

*"Fig. 1 is a side view of my improved machine, parts of the frame being broken away to show the construction. Fig. 2 is a detail sectional view of the same taken through the line, x, x, of Fig. 1. Similar letters of reference indicate corresponding parts in the different figures of the drawing. My invention has for its object to furnish an improved device for turning or rolling logs to or upon the carriage of circular or other saw-mills, which shall be simple in construction, effective in operation, and conveniently operated; and it consists in the application for that purpose of a toothed bar connected with means for giving it the necessary movement; and, further, in the construction and combination of the various parts, as hereinafter more fully de

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tiff and his assignee had knowledge prior to the application for such reissue of the aforesaid application for patent by the said John Torrent, and the said principles so patented by the said John Torrent had (by him) been used at the city of Muskegon, aforesaid, by said John Torrent and others." Upon the trial in the circuit court, Rodgers, to maintain the issue on his part, introduced in evidence the original letters patent, dated August 25, 1868, granted to Esau Torrent for "a new and improved machine for rolling saw-logs," the assignment of said letters patent by the patentee to Rodgers, and the reissued letters patent granted to Rodgers as the assignee of Torrent, applied for June 25, 1873, and issued and dated July 15, 1873.

*

The specification and claims of the original and reissued patents were both illustrated by the annexed drawings. The original specification is here reproduced, so as to show the changes made in the reissue. The parts in italics are found in the reissue and not in the original, and the parts inclosed in brackets are found in the original and not in the reissue: "Be it known that I, Esau Torrent, of Muskegon, in the county of Mus

A

scribed. A represents [a part of] the frame-work, and B [represents] the log carriage of a [an ordinary] saw-mill [about the construction of which parts there is nothing new.] Cis a [an upright] bar having teeth, c1, attached to its forward side, and which [moves up and down between the posts, D, attached to the frame, A,] has a vertical as well as horizontal movement, controlled by suitable guides. The lower end of the toothed arm, C, is pivoted to and between two blocks, E, which moves up and down in grooves in the inner sides of the posts, D, as shown in Fig. 2, and in dotted lines in Fig. 1. This construction enables the upper end of the [upright] bar, C, to move back and forth to adjust itself to the size of the log to be rolled or turned upon the carriage, B, and also to enable the teeth, c1, to pass the log when the bar is descending in the inner sides of the posts, D, as shown in Fig. 2, and in dotted lines in Fig. 1. This construction enables the upper end of the [upright] bar, C, to move back and forth to adjust itself to the size of the log to be rolled or turned upon the carriage, B, and also to enable the teeth, c1, to pass the log when the bar is descending. To the rear side of the lower end

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of the bar, C, is attached, or upon it is formed, a block, arm, or projection, c2, to which is attached the end of the rope or chain, F, by means of which the said [upright] bar, C, is raised to turn the log. This manner of attaching the hoisting chain forces the upper end of the said bar, C, forward, causing the teeth, c1, to take a firm [firmer] hold upon the log to be rolled. The chain or rope, F, passes over a pulley, G, secured in a proper position [immediately] beneath a log deck, H, and thence down to the barrel or drum, I upon [of] the shaft, J, to which one [its] end of it is securely attached. Upon [To] the shaft, J, is also attached the large friction pulley, K, to which motion is given by the small friction pulley, L, secured upon [attached to] the shaft, M, to which shaft is also attached the pulley, N, by means of which motion is communicated to the apparatus from the driving power of the mill. One end of the shaft, M, works in stationary bearings attached to or connected with the frame of the mill, and its other end works in bearings secured upon [attached to] the bridge-tree, O, one end of which is pivoted to the frame,