Page:Federal Reporter, 1st Series, Volume 10.djvu/627

UNITED STATES V. CENTRAL NATIONAL BANK. 615 �121 are mutually exclusive. No case can arise uuder section 121 unless the bank "shall neglect or omit to make dividends or addi- tions to its surplus or contingent funds." The duty imposed by sec- tion 121 on "the amount of profits which have accrued or been earned and received by the bank," in case of failure to declare dividends or additions to its surplus or contingent funds, does not appear to be necessarily the same as might be imposed under section 120 upon such dividends or additions, if made. �The present complaint contains no averments sufficient to present a case under section 120. The construction of the language of this section, in reference to the right to deduct the state tax, and the bearings of sections 116 and 117, which are in pari materia upon the same question, cannot, therefore, be here properly considered. �On the other hand, it would be useless to consider the question under section 121 alone, when both parties assume the facts to put the case under section 120. The complaint, moreover, is defective under section 121, because it contains no averment that the defend- ant had "neglected or omitted to make any dividends or additions to its surplus or contingent funds." The complaint is not sufficient, therefore, under either section. �It is an aneient rule in pleading that upon demurrer the whole record is presented, and judgment goes against the party who com- mits the firat substantial fault. Cooke v. Graliam, 3 Cranch, 229; Sprigg v. Bank of Mt. Pleasant, 10 Pet. 264; 1 Saund. 119, note 7; 285, note 5 ; 1 Chit. PI. 668. The same rule is still applicable under the Code. People v. Booth, 32 N. Y. 397. �The second defence demurred to is, therefore, held sufficient in law as regards the elaims made for 1866, 1867, and 1868, and judgment should be entered for the defendant for the insufficiency of the com- plaint, unless the plaintiff shall amend within 20 days as to the claim for the year 1870, in which case the answer already put in may, if desired, stand as an answer to the amended complaint as respects that claim. �See Nat. Alhany Exchange Bank. Y. Hills, 5 Fed, Eep. 248. ��� �