CLAY ARTHUR PIERCE, Henry Clay
Pierce, and Pierce Investment Company,
Appts.,

V.

UNITED STATES OF AMERICA.

the firm, with individual Mississippi | Justice McReynolds took no part in the Choctaw claimants, having the object of consideration or decision of these cases. securing the rights of the latter to allotments in the tribal lands of the Choctaw Nation, and removing the Indians to the Indian Territory, was actively engaged for about a year and a half in pressing the claims of those Choctaws upon Congressmen and Senators, the subcommittee on Indian Affairs of the House of Representatives, the officials of the Indian Office, and the Secretary of the Interior. It is found not to have been established by the evidence that Howe's services were effective in establishing the claims of the Mississippi Choctaws to citizenship in the Choctaw Nation, or that such legislation as was enacted, under which they received allotments in the tribal lands, was the result of his professional services. The vital element of a benefit conferred upon the Mississippi Choctaws as a class is lacking, and from what we have said it is manifest that the judgment of the court of claims as to this claim must be affirmed.

In the other cases covered by the present appeals, viz., Bounds, No. 7, London, No. 8, Field and Lindly, No. 9, Beckham, No. 10, and Vernon, No. 11, the findings show no benefit conferred upon the Mississippi Choctaws as a class, for which recovery can be had under the jurisdictional acts. The claims of Bounds, Beckham, and Vernon, are based upon services rendered and expenses incurred in behalf of individual Indians. London did nothing to advance the claims of the Mississippi Choctaws to citizenship [398] in the Nation. Lindly and Field claim as associates of Chester Howe; it does not appear that Lindly performed any meritorious service for the Indians; Field was active in impressing upon Congressmen and Senators his views as to necessary and proper legislation for securing the rights of the Mississippi Choctaws to citizenship in the Choctaw Nation; but the extent and effect of such services do not appear, nor does it appear that the legislation finally enacted was the result of said services. In none of these cases does the record show any proper foundation laid for a remand for further findings. All these claims were properly rejected.

No. 6. Judgment reversed, and the cause remanded for further findings of fact as above specified.

Nos. 7, 8, 9, 10, 11, and 12. Judgments affirmed.

(See S. C. Reporter's ed. 398-406.) Execution - on judgment for penalties. 1. All judgments for penalties, whether recovered by civil or criminal proceedings, are within the provision of U. S. Rev. Stat. § 1041, that judgments for penalties may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced. [For other cases, see Execution, I. in Digest Creditors'. bill

Sup. Ct. 1908.]

by United States judgment imposing fine.

2. A judgment imposing a fine upon a corporation for accepting rebates, contrary to the Elkins Act of February 19, 1903, § 2, is a debt which will support a creditors' bill by the United States to obtain satisfaction of the judgment out of the assets in the hands of the stockholders, among whom all the corporate property has been distributed, U. S. Rev. Stat. § 1041, having provided that judgments for penalties may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced.

[For other cases, see Creditors' Bill, II. in Digest Sup. Ct. 1908.]

Note. On suit for statutory penalty as a civil or criminal prosecution-seo note to Hepner v. United States, 27 L.R.A.(N.S.) 739.

On effect of dissolution on debts owed by corporations and on their propertysee note to Mumma v. Potomac Co. 8 L. ed. U. S. 945.

On liability of directors for corporate debts where they sell the entire corporate property and distribute the proceeds-see note to Darcy v. Brooklyn & N. Y. Ferry Co. 26 L.R.A. (N.S.) 267.

On individual liability of stockholders for corporate debts-see notes to Hatch v. Dana, 25 L. ed. U. S. 885; Lloyd v. Preston, 36 L. ed. U. S. 1111; and United States v. Stanford, 40 L. ed. U. S. 751.

As to whether statutory liability of stockholders for debts of corporations includes interest thereon-see note to Flynn v. American Bkg. & T. Co. 19 L.R.A. (N.S.) 428.

As to interest on judgments-see note Mr. Justice Van Devanter and Mr. to Rockwell v. Butler, 17 L.R.A. 612.

4. A corporation cannot disable itself from responding to liability for its acts by distributing its property among its stockholders, and leaving remediless those having valid claims. In such a case the claims, after being reduced to judgment, may be satisfied out of the assets in the hands of

the stockholders.

[For other cases, see Corporations, XI. in

Digest Sup. Ct. 1908.] Corporations among stockholders creditors.

distribution of assets
rights

of

5. The right to follow the distributed assets of a corporation in the hands of the stockholders applies not only to those who are creditors in the commercial sense, but to all who hold unsatisfied claims. [For other cases, see Corporations, XI. in Digest Sup. Ct. 1908.] Creditors' bill by United States judgment imposing fine claim unliquidated when assets of judgment debtor were distributed.

6. The right of the United States to maintain a creditors' bill to obtain satisfaction of a judgment imposing a fine on a corporation for accepting rebates out of the assets in the hands of the stockholders, among whom all the corporate property has been distributed, exists, although the judgment was not rendered until after the distribution was made,-especially where such stockholders were not ignorant of the government's claim, since they were officers of the corporation, and the indictment was pending when the transfer of the assets was made.

[For other cases, see Creditors' Bill, III. in

Digest Sup. Ct. 1908.]

Creditors' bill by United States return nulla bona.

8. The existence of a possible remedy against the purchaser of all of the property of a corporation against which the United States had recovered a judgment did not bar the government from following, by a creditors' bill, the assets of the corporation in the hands of its stockholders, among whom all the proceeds of the sale had been [For other cases, see Creditors' Bill, III. in

distributed.

Digest Sup. Ct. 1908.]
Election of remedies — choice.

9. A suit by the United States to sub-
ject to the satisfaction of a judgment re-
covered by it against a corporation certain
of the property of such corporation which
it had conveyed to another corporation did
not amount to an election of remedies
which would bar the government from fol-
lowing by creditors' bill the assets of the
judgment debtor in the hands of its stock-
holders, among whom all the corporate
assets had been distributed.
[For other cases, see Election of Remedies, III.
in Digest Sup. Ct. 1908.]
Appeal

12. Interest in a creditors' suit brought by the United States on a judgment for a penalty recovered in a proceeding begun by criminal indictment is allowable only from the time when judgment was entered in the creditors' suit, since the original judgment does not fall within the terms of the only applicable Federal statute, viz., U. S. Rev. Stat. § 966, providing that interest shall be allowed on all judgments in civil causes.

[For other cases, see Interest, II. c, in Digest Sup. Ct. 1908.]

[No. 173.]

7. A creditors' bill may be maintained by the United States upon a judgment recovered by it in a Federal district court in another state, although the return of nulla bona was not made by the marshal for the district in which the creditors' suit was brought until after the commencement of the suit, where the execution issued to the marshal for the district in which the judgment was recovered had been returned nulla Argued January 4, 1921. Decided March bona before the creditors' suit was brought, and it is agreed that when the latter suit was brought the judgment debtor had no property anywhere out of which the judg ment could be satisfied in law; an execution issued in favor of the United States by any of its courts running, by virtue of U. S. Rev. Stat. § 986, in every part of the United States.

[For other cases, see Creditors' Bill, III. in Digest Sup. Ct. 1908.]

7, 1921.

APPEAL from the United States Cir

Court of Appeals for the Eighth Circuit to review a decree which affirmed a decree of the District Court for the Eastern District of Missouri, granting the relief prayed by the government in a creditors' suit. Modified, and, as modified, affirmed.

1920.

See same case below, 171 C. C. A. 1, 257 Fed. 514; on rehearing, 171 C. C. A. 194, 260 Fed. 158.

The facts are stated in the opinion. Mr. Louis Marshall argued the cause and filed a brief for appellants:

The judgment imposing a fine on the Waters Pierce Oil Company on its conviction under the Elkins Act did not constitute a debt on which a creditors' bill would lie in favor of the United States against the appellants.

Re Sutherland, Fed. Cas. No. 13,639; Hall v. Coleman, 138 Ga. 734, 75 S. E. 1132; McCool v. State, 23 Ind. 127; State v. Joseph, 137 La. 55, 68 So. 211; State v. Mace, 5 Md. 350; Peterson v. State, 79 Neb. 132, 14 L.R.A. (N.S.) 292, 126 Am. St. Rep. 651, 112 S. W. 306; Ex parte Hollman, 79 S. C. 9, 21 L.R.A.(N.S.) 242, 60 S. E. 19, 14 Ann. Cas. 1105; Re McDonald, 4 Wyo. 150, 33 Pac. 20; Spalding v. People, 7 Hill, 301, affirmed in 4 How. 21, 24, 11 L. ed. 858, 859; Re Long, L. R. 20 Q. B. Div. 318, 57 L. J. Q. B. N. S. 360, 58 L. T. N. S. 664, 36 Week. Rep. 346,

Morrell, 29; Bailey v.

State, 87 Ala. 44, 6 So. 399; Re Boyd,
34 Kan. 540, 9 Pac. 240; Ex parte Mc-
Innis, 98 Miss. 773, 54 So. 261; Chase V
Curtis, 113 U. S. 452, 28 L. ed. 1038, 5
Sup. Ct. Rep. 554; Savage v. Shaw, 195
Mass. 571, 122 Am. St. Rep. 272, 81 N.
E. 303, 12 Ann. Cas. 806; Child v. Bos-
ton & F. Iron Works, 137 Mass. 519, 50
Am. Rep. 328; Perry v. Orr, 35 N. J. L.
295; Kirkland v. Kille, 99 N. Y. 395, 2
N. E. 36; Heacock v. Sherman, 14 Wend.
58; Esmond v. Bullard, 16 Hun, 68;
Henley v. Meyers, 76 Kan. 723, 17 L.R.A.
(N.S.) 779, 93 Pac. 168; Ex parte
Robertson, 27 Tex. App. 628, 11 Am. St.
Rep. 207, 11 S. W. 669; Chicago
Morell, 247 Ill. 383, 139 Am. St. Rep.
340, 93 N. E. 295; Re Southerland, Fed.
Cas. No. 13,639; Re Southern Steel Co.
183 Fed. 498; Whiteacre v. Rector, 29
Gratt. 714, 26 Am. Rep. 420; Clark v. Al-
len, 114 Fed. 374, affirmed in 62 C. C. A.
58, 126 Fed. 738; Audubon v. Shufeldt,
181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct.
Rep. 735; Dunbar v. Dunbar, 190 U. S.
340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757;
Wetmore v. Markoe, 196 U. S. 68, 49 L.
ed. 390, 25 Sup. Ct. Rep. 172, 2 Ann.
Cas. 265; Romaine v. Chauncey, 129 N.
Y. 566, 14 L.R.A. 712, 26 Am. St. Rep.
544, 29 N. E. 826; Turner v. Turner, 108
Fed. 785, 3 N. B. N. Rep. 821; Lynde
v. Lynde, 64 N. J. Eq. 736, 58 L.R.A.
471, 97 Am. St. Rep. 692, 52 Atl. 694;
Chase v. Ingalls, 97 Mass. 530; Fickel v.
Granger, 83 Ohio St. 101, 32 L.R.A.

(N.S.) 270, 93 N. E. 527, 21 Ann. Cas.
472, 513, 26 L. ed. 197, 204; Lane County
1347; Meriwether v. Garrett, 102 U. S.
v. Oregon, 7 Wali. 71, 19 L. ed. 101; New
Jersey v. Anderson, 203 U. S. 483, 492,
51 L. ed. 284, 288, 27 Sup. Ct. Rep. 137;
Boston v. Turner, 201 Mass. 193, 87 N.
E. 634; Herbert v. Handy, 29 R. I. 543,
72 Atl. 1102; Ware v. Hylton, 3 Dall.
Minnesota Elevator Co. 40 Minn. 343, 41
249, 278, 1 L. ed. 589, 602; Mohr v.
N. W. 1074; Re Nicolin, 55 Minn. 130, 56
N. W. 587; Woolverton v. George H.
Taylor Co. 43 Ill. App. 426.

The contention that a judgment im-
posing a fine for an offense against the
laws of the United States is enforceable
by creditors' bill, because of § 1041 of

Statutes
States Revised
United
the
(Comp. Stat. § 1705, 3 Fed. Stat. Anno.
2d ed. p. 327), cannot be sustained.
Re Teuscher, Fed. Cas. No. 13,846;
Jones v. United States, 137 U. S. 211, 34
States v. Hudson, 7 Cranch, 32, 3 L. ed.
L. ed. 695, 11 Sup. Ct. Rep. 80; United
259; United States v. Britton, 108 U. S.
199, 206, 27 L. ed. 698, 700, 2 Sup. Ct.

Rep. 531; Manchester v. Massachusetts,
139 U. S. 240, 262, 267, 35 L. ed. 159,
166, 171, 11 Sup. Ct. Rep. 559; United
States v. Eaton, 144 U. S. 677, 687, 36
L. ed. 591, 594, 12 Sup. Ct. Rep. 764; Re
Green, 52 Fed. 104.

Nor does § 916 of the United States Revised Statutes (Comp. Stat. § 1540, 3 Fed. Stat. Anno. 2d ed. p. 229) apply.

Boyle v. Zacharie, 6 Pet. 635, 8 L. ed. 527; The Blanche Page, 16 Blatchf. 1, Fed. Cas. No. 1,524; Clark v. Allen, 114 Fed. 374, affirmed in 62 C. C. A. 58, 126 Fed. 738; Hudson v. Wood, 119 Fed. L. ed. 1200; Canal & C. Street R. Co. v. 764; Ex parte Boyd, 105 U. S. 647, 26 Hart, 114 U. S. 654, 29 L. ed. 226, 5 Sup. Ct. Rep. 1127; Windsor v. McVeigh, The transfer by the Waters Pierce Oil 93 U. S. 274, 282, 23 L. ed. 914, 917. Company of its property to the Pierce Oil Corporation having been made in good faith nearly a year prior to the imposition of the fine, even trust-fund theory otherwise applicable, it does not inure to the benefit of one not a creditor at the time of the transfer and distribution of the corporate property.

were the

Graham v. La Crosse & M. R. Co. 102

U. S. 148, 26 L. ed. 106; Horbach v. Hill, 112 U. S. 144, 149, 28 L. ed. 670, 672, 5 Sup. Ct. Rep. 81; Hollins v. Brierfield Coal & I. Co. 150 U. S. 371, 383, 385, 37 L. ed. 1113, 1116, 1117, 14 Sup. Ct. Rep. 127; Wabash, St. L. & P. R. Co. v. Ham, 114 U. S. 587, 29 L. ed. 235

It was plain error for the courts below to award judgment against the appellants not only for the amount of the fine, but for interest thereon from the date of the indictment, more than seven years anterior to the conviction and sentence of the Waters Pierce Oil Company.

5 Sup. Ct. Rep. 1081; Fogg v. Blair, 133 | v. Jardine, L. R. 7 App. Cas. 345, 51 U. S. 534, 541, 33 L. ed. 721, 724, 10 Sup. L. J. Q. B. N. S. 612, 47 L. T. N. S. 258, Ct. Rep. 338; McDonald v. Williams, 174 30 Week. Rep. 893, 19 Eng. Rul. Cas. U. S. 397, 43 L. ed. 1022, 19 Sup. Ct. 738; Rawson v. Turner, 4 Johns, 469. Rep. 743; McDonald v. Dewey, 202 U. S. 529, 50 L. ed. 1135, 26 Sup. Ct. Rep. 731, 6 Ann. Cas. 419; Wallace v. Penfield, 106 U. S. 260, 262, 27 L. ed. 147, 148, 1 Sup. Ct. Rep. 216; Schreyer v. Scott, 134 U. S. 409, 410, 33 L. ed. 957, 958, 10 Sup. Ct. Rep. 579; Lant v. Manley, 71 Fed. 18; Merchants' Bank v. Thomas, 57 C. C. A. 374, 121 Fed. 306; Montgomery v. Whitehead, 40 Colo. 327, 11 L.R.A. (N.S.) 230, 90 Pac. 509; Boston Safe-Deposit & T. Co. v. Bankers' & M. Teleg. Co. 36 Fed. 297; Coe v. East & West R. Co. 52 Fed. 534; Toledo, St. L. & K. C. R. Co. v. Continental Trust Co. 36 C. C. A. 155, 95 Fed. 528; Whitney v. Kelley, 94 Cal. 148, 15 L.R.A. 813, 28 Am. St. Rep. 106, 29 Pac. 624; New Hampshire Sav. Bank v. Richey, 58 C. C. A. 294, 121 Fed. 959; Coleman v. Hagey, 252 Mo. 135, 158 S. W. 829; Deerfield v. Nims, 110 Mass. 115; Gaylord v. Kelshaw, 1 Wall. 81, 82, 17 L. ed. 612.

The creditors' bill in this case was prematurely brought, because, at the date of its filing, no execution had been issued or returned nulla bona against the Waters Pierce Oil Company in Missouri.

National Tube Works Co. v. Ballou, 146 U. S. 517, 36 L. ed. 1070, 13 Sup. Ct. Rep. 165; 12 Cyc. 25; Ware v. Delahaye, 95 Iowa, 667, 64 N. W. 640; National State Bank v. McCormick, N. J., 44 Atl. 706.

At the time when this suit was brought, the government had instituted a suit in the western district of Louisiana against the Pierce Oil Corporation for the recovery of the amount of the fine imposed on the Waters Pierce Oil Company, based on the assumption of all of the debts, obligations, and liabilities of the Waters Pierce Oil Company. The bringing of such suit constituted an irrevocable election of remedies.

Friedenwald Co. v. Asheville Tobacco Works, 117 N. C. 544, 23 S. E. 490; Fowler v. Bowery Sav. Bank, 113 N. Y. 450, 4 L.R.A. 145, 10 Am. St. Rep. 479, 21 N. E. 172; Whalen v. Stuart, 194 N. Y. 505, 87 N. E. 819; Moller v. Tuska, 87 N. Y. 166; Bach v. Tuch, 126 N. Y. 53, 26 N. E. 1019; Morris v. Rexford, 18 N. Y. 552; Acer v. Hotchkiss, 97 N. Y. 395; Conrow v. Little, 115 N. Y. 387, 5 L.R.A. 693, 22 N. E. 346; Terry v. Munger, 121 N. Y. 161, 8 L.R.A. 216, 18 Am. St. Rep. 803, 24 N. E. 272; Scarf

United States v. Mitchell, 163 Fed. 1014, affirmed in 97 C. C. A. 420, 173 Fed. 254, 19 Ann. Cas. 1145; United States v. Pomeroy, 152 Fed. 279; Dyar v. United States, 108 C. C. A. 478, 186 Fed. 623; United States v. Theurer, 130 C. C. A. 370, 213 Fed. 964; People ex rel. Warfield v. Sutter Street R. Co. 129 Cal. 545, 79 Am. Rep. 137, 62 Pac. 104; State v. Steen, 14 Tex. 398; United States v. Jacob Schmidt Brewing Co. 254 Fed. 714; United States v. Verdier, 164 U. S. 218, 41 L. ed. 409, 17 Sup. Ct. Rep. 42; Hagerman v. Moran, 21 C. C. A. 242, 44 U. S. App. 636, 75 Fed. 97; Perkins v. Fourniquet, 14 How. 328, 14 L. ed. 441.

Even had there been no sufficient assignment of error either on the appeal to the circuit court of appeals or to this court, under Rules 21 and 35, the court at its option may notice a plain error not assigned or specified.

World's Columbian Exposition Co. v. Republic of France, 33 C. C. A. 333, 62 U. S. App. 704, 91 Fed. 64; United States v. Pena, 175 U. S. 500, 44 L. ed. 251, 20 Sup. Ct. Rep. 165; Behn v. Campbell, 205 U. S. 403, 51 L. ed. 857, 27 Sup. Ct. Rep. 502; Weems v. United States, 217 U. S. 349, 54 L. ed. 793, 30 Sup. Ct. Rep. 544, 19 Ann. Cas. 705; Columbia Heights Realty Co. v. Rudolph, 217 U. S. 547, 54 L. ed. 877, 30 Sup. Ct. Rep. 581, 19 Ann. Cas. 854; Briscoe Rudolph, 221 U. S. 547, 55 L. ed. 848, 31 Sup. Ct. Rep. 679; Central Improv. Co. v. Cambria Steel Co. 120 C. C. A. 121, 201 Fed. 811; A. Santaella & Co. v. Otto F. Lange Co. 84 C. C. A. 145, 155 Fed. 719.

V.

This was a suit in equity which was tried on an agreed statement of facts. For that reason, also, the liberal rule has been applied in some jurisdictions that since the appeal brings up the entire record, it is in itself a sufficient assignment of error.

Mershon & Co. v. Morris, 148 N. C. 48, 61 S. E. 647; Re Davidson, 21 Cal. App. 118, 131 Pac. 67.

Solicitor General Frierson argued the