Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017195433 Cornell University Library KF 101.M88 Morrison's trariscript of the d^^^^^ 3 1924 017 195 433 Morrison's Transcript — or THE- DECISIONS -or THE — Supreme Court of the United States. ¥0L. I. WASHmOTOU, D. c. : W. H. & 0. H. MORRISON, fata ^nbltsfetts anb ^ooliscUcrs. 1881. Entered according to Act of Congres?, in LIk! jcar 1881, by W. H. & 0. H, Morrison, Fii the Offic<' of llie Libiarian of Cono;r(;ss, at Washington, T). (J Prhh or TnoauH McQiu, Sc Uo., ImW PltlNTSDH, CASES REPORTED. Page, Alcxiuider ads Bouliliii ]9() «(?« Di'iiiiisou 351 Allfii V. City 'it Louisiana 415 Andrews I'. Conoui- 29 Artliiu' ad.i Solomon 139 Atlieiton fflrfs United Statfesf...^ 2'd-7! Ball V. Baumgavden... >..„)\.64 Bambpi'gcr 1). Teriy 581 Banko! Montreal i>. White 117 Baumsarden ads Ball Gi Bennett u. Railroad Co 4S1 Bt-nton Connty v. Bollens 262 Blake arfs Fletcher 390 Booo'hev V. Life Insurance Co. 564 Bouldin v. Alexander 190 Brooks r. Railroad Co 45 Brutt'y ads Williams 406 Bnchanan v. City of LitcliHeld. 216 Cliontean ad.? United States.... 593 The Chim ads Sheplierd 180 Clark V. United States 337 Clopper atZ* Railroad Co 491 Comcan ads Seward 4 Congar ads Andrews 20 Cooper acZs Sinclair 460 Daniel ads Pickens Connty 39 Daniels u. Tearney 285 Davidson ads Schoonmalser 46 Daviess Count}' ads Ogden.^.... 586 Davis ads Draper 85 ads Goodyear Co 145 ads Heryford 226 Dennison v^ Alexander 3)1 Densmoi-e u. Scofield 271 Diekema ads Gibbs 334 Dozier ads Gai'neau 113 Draper v. Davis 85 ( Pnge. Edwards !'. United States 388 Eldridge ads Insurance Co 475 Everliardt ads Sims 12 Finch V. United States 237 Fi'sglier ads Hayes 47 Fletplier i'. Blake 390 Florida'E;iilroad Cases 504 Fowler ads McLaughlin 350 France v. Missouri 5 Garnean v. Dozier 113 Garrett ads City of ileni])hls.. 35:! George r. Tate 402 Gibbs !}. Diekema 334 Giddlngs v. Insurance Co 35 Goldbaek ads United Siale>, . .. 47S Goodman v. NIblack 448 Goodyear C^i. v. Davis 145 Graham u.Kailroad Co 08 Green ads Willz y;i3 Greenhow ads Hartman 549 Groat!). O'Hare 22 Hagood ads Hand 1 Hall V. Law 393 V. Wisconsin 183 Hamblen Comity ads Railroad Company i,j4 Hand w. Hagood ] Harding ads Hill 214 Hartman v. Greenliovv 549 Hauenstein v. Lyuham 119 Hawley v. Upton 293 Hayes v. Fischei- 47 Hentig v. Page 210 Heryford w. Davis 226 Hill c. Harding 214 Hough ads United States GO Hunriicutt v. Peyton 87 iii) IV Cases Reported. Page. Insurance Co. ads Booghor 564 V. EUlrido'e 475 ads Gidrlinsfs..., 35 Ivanhoe Co. v. Keystone Co... 129 Jifkins u. Sweetsei- 109 • Ktihn V. Smelting Co 574 Kiiisi'r V. Stickney 346 Kayser ads Weitzal 426 Kemp ads St. Lonis S. & R. Co. 215 Key.stone Co. ads Ivanhoe. Co. 129 Kimball atisConnty of Mobile. 462 Knox ads National Bank 248 Ladd ads Swain Tnrbino Co... 320 Lanahan u. Sears 297 Law ads Hall 393 Leai'Y v. Long 38 LitoliQeld City ads Bnchanan. 216 Long at?,? Leary 38 Loi-d V. Steamship Co 456 Loni.siana City ads Allen 415 V. Wood 160 Lynliani ad« Hanenstein 119 McBi-ide ti. Schnrz 299, 400 MoCai-thy v. Provofst 497 MoEli'ath V. United States 252 McLanghliii v. Fowler 350 McNamee tufs Wilson 571 Meniphi.s Cityt). Gai'rett 353 Mississippi ads Railroad Co.... 49 Missonri ads France 5 Mobile Connty u. Kimball 402 Morris ads United States 434 Monnt ais Steamship Co 206 MnHovd ads Pearce 7 National Bank v. Knox 24S ads Potter 124 ads White 498 ads Wliitney... 263 N. Orleans ads Ranger 120 ads Sonthern B'k. 108 Niblaok arfs Goodman 44S Page. Ogden V. Davie.'?s County 586 O'Hare ads Groat 22 Page ads Hentig 210 Palmer ads Rogers 242 Pearce J). Mnlford 7 Prople's Bank v. Win.Sl Tienian «. Kinkei- 81 Trimble v. Woodhead oS2 Uli'ici arf« Uniteil States 602 United States u. Atlierton 267 V. Clioutcan 593 ads Clark 337 ad? Edwards.... 388 ads Finch 237 V. Goldback 478 V. Hongh 60 ads McElrath ... 252 V. Morris 434 United States ads Sprino-cr 535 V. Ulrici 602 atf.9 White 327 Upton ads llawley 293 Wadswortli v. Supervisors 427 Walker !). Reister 443 Weitzel v. Ka3-ser 42G u. Ral)e 422 Wells V. Snpervisoi-s 196 White ads Bank of Montreal.. 117 ». National Bank 498 V. United States 327 Whitney u. National Bank 263 Whitsitt V. R. K. Companies.. 497 Williams D. Brntt'y 406 Wilson V. McNamee 571 ads Relfe 264 Wiltz V. Green 333 Winslow ads People's Bank... 23 Wisconsin ais Hall 183 Wood ads Louisiana City 160 Woodhead aii« Ti-imble 582 CASES CITED. Tlie Abbotsfoi-d 209, 509 Allen u. Jfewbcny 4.")!) AlteiTuis r. Long 107 Anderson u."K(itclifl« 77 Anthony v. J.-ispcr I(i4 Antoni v. 'VVriolit SoS Aspinwall v. Commissioner.*... 427 Atlvins u. Thornfon 251 V. Tlie Disintegration Co o73 Atwood V. Agrioultnrnl Bunk.. 251 Augusta City v. Nortli 307 Babbitt Ashley v. Laud 397 Bailey v. Mayor of Ni!U' York . 381 Baker u. Block 31 Barnej'w. Baltimore City 455 Bartlett u. Emerson 101 Batesville In.st. v. Kaufman.... 382 Bath County K. Amy 43 Beaman v. Leake Conntj- 201 Beckwitli v. Racine , 3S4 Belden v. Davies 405 The Belfast 47 Bender M. Pierce 102, Blaythe v. Sunderland 102 Bonner v. United States 310 Bovvdoin v. Coleman 406 Bnidstrect, ex parte 94 Brine v. Insurance Co 275, 284 Bronson r. Kinzie 289 Broughtori v. Pensacola... 365, 383 Brown i\ Asptlen 46 V. Bissell 03 V. McClure 21 n. Piper 274, 289 r. Taylor 62,266, 570 Bruce v. United States 440 Buck V. Colbath 27 Burkr. Hill 397 Burlington m. .Gilbert 292 Page. Burns v. United States 391 Bni'well r. Andcnvon 408 Butler i: Baker 309 t/.Eegents 18S Byan c. Brindley 126 Camden City c. Allen 367 Cannneyer t). Newton 391 Campbell v. Blaivcan 567 Carleton v. FranconiaC'o 485 Ciwcy V. Galli 248, 251 Chapman j'. Rotlnvcll 486 Church !). Gilman 309 Claflin V. Osrrom 406 Clark r. Blockstoek 404 V. Courtney 100 ?. Iowa City 561 Clay t). Halbut 98 •Cockell U.Taylor 77 Cohens r. Virginia 49, 55 Coloma c. Eaves 222 Commissioners u. Detroit 384 r. Lucas 364 .. Whitley 306 Comstock V. Crawford 390 Cooley V. .The Board of War- dens 465, 574 Corby v. Hill 485 Compare! !). Han na 397 CoxB. Matthews 397 V. UuitedStates 441 Craig u. Parkis 406 Crandall v. JSTovada 469 Crease v. Babcock 251 Crocker!). Bellangce 75 Cnlbertson v. Shaw 181 Cui-]'au u. Arkansas 384 Curtis f. Whipple 434 Cushman v. Dement 31 Dartmouth College Case 189 (vii) viu Cases Cited. Piige, Diivoiiport u. lusurancs Co !!66 Dtiviilsoii 1'. Lanier.. 4 .D;ivisii.Gi-ay 37, ]S9 K. Tennessee 49, 5"> Dean !). Gi-idley 96 Becatni- r. Paulding 306 Denti-itf J). Ciittenden 406 De Trouville u. Small 539 Dewin"' K. Pei'dicai'is 289 Diekinson v. BniTiU 77 i!. C'olgrove 405 r. Valpy 579 Dillon V. Parlier 9.1 Dixon V. Small- Anns Co 391 i:)odd r. Benthal 19 Doe V. Haivi-y 397 V. Smith 397 Dollar Savings Bank v. U. S... 385 Downer u. Palmer 311 Drake «. Kamsey 20 Dredge t!. Forsyth 90 Dnbnqne City v. Railroad Co.- 3S4 Dunn ?). Insm-ance Co 50, 58 Durant v. Es.sex Countj' 553 Din-yea c. Bnrt 578 Edwards);. Kearsey 289 Ellieott w. Pearl. 101 Erwin f. United Stales 451 Evans v. Ashby 397 1-. Hnnt 103 Everett c. Elliott 572 Feather /'.The Queen 391 Florida f. Anderson 527 Fowler V. Brantly 278 Franchot u. Leach 405 Freeman v. Home 27 French v. Shotwell 72 Fidleri:. Chicago City 219 Fin'guson v. Landram 292 Furman «. Nieol 557 Gavin r. Gi-aydon 397 Generes v. Bonnamer 91 George r. Thomas 102 Gibbons D. Ogden 458 Page, Gibbs !'. Liverpool Dock Trus- tees , 487 Gilman e. Philadelphia .. 189, 469 Girardc. Philadelphia 382 Glenny r. Langdon 584 Goddard K. Otway 86 Gold, &c.. Co. V. Keyes 49, 55 Goodman v. Simonds 278 Gordon v. Longest 50 Graham v. Norton - 43 Gratiot v. United States 441 Green v. Liter 311 Grogau v. San Francisco 384 Haightu. Holly 288 Hanrick u. Barton 98 Harvey u. Tyler 62, 570 Hatch V. Hatch 309 Hatshorne v. Day 405 Hawkins u. Carroll Co 202 ■«. Hawkins 397 Haysv. Ford 397 Heine w. Commissioners 370 .Henderson v. Mayor of New York 469 Hickman v. Jones 289 The Hine ?;. Trevor 47 HoUister Bank, in re 251 Hollowell V. HoUowell 96 Holmes 1'. Blogg 20 ^ Home Insuiance Co. r. City Council 287 Hoover u. West 247 Horner K. Doe 397 Hosmer v. True 406 House V. Midlin 456 Howell V. Philadelphia 367 Hoyt v. United States 441 Hudson V. Gnestier 45 Huglies V. Eobcrtson 96 Humplirey v. Pegues 159 Hunt (.'. Adams 404 Huntei-w. Burusville Tui-npike Co 397 Hylton V, l[j*nited States... 542, 545 Illinois Raili-oadCo..u. Palmer. 96 Casks Cited. IX Indpniiam- v. Dam("-. .. riisnriinet' On. c. Young Irvini^ r. Irviiii' Irving I', lliiniiiliiv}- PilgO. . 4S7 ,. :!s .. 20 ., 40.-) Jenkins r. .Iiniliiiis 18 Jerome v. Mp,Cni-ter SO Johnson u. Towsley 307 Jolniston /'. Jones 02, 268, o70 Jones V. Gniirnnty Co 403 Jonesboioiii!'li i). McKee 3S.t Kanouse v. M;n1in Keavnej')'. Case 48, Keen v. Coleman Kendall !). Stokes 3!)G, I'. U. S 304, 401, Kendig p. Dean Kennedy f. Gibson 248, •Kennicott v. Siipei-visors Kentucky v. Deniiison Knoxville, &c., Kailmad Co. r. Hicks Knlituian, ex ji arte Lancaster Canal Co. )'. Panaby Langdoii v. Goole Lange, expaiie Ijaw V. Long V. Merrill V. People Lease v. Carr Lee V. Tillotson Leggett I'. Avery Leon V. Garcelon Leroy u. Jamison Lossienr r. Price License Cases Limestone Connty v. Rathei... Lincoln v. Clafliu 62, Little !). Alexanrler Long u. Cushman Louisville v. Commonwealth... The Lydia Lyncle v. Winnebago'Coiinty. r>0 ri07 21 r>r)2 mi 45(; 251 223 552 139 311 487 404 002 16 95 219 390 292 151 47 311 553 468 41 570 247 101 366 182 202 Maenhout v. New Orleans 384 Mnrbnry ». Madison 305, 310 Marcy v. Oswego Township.... 224 M.irqncz v. Frisbie 270 MaiM- c. Bank of Tenno.-isee.... 385 Marsh v. Fnlton Co 165 Martin v. Hiniter 4, 411 V. Parker 98 TlieMaryT. Wilder 182 Matlierson r. Davis 19 Mattingly !!. Nye 72 Mayer )). Cooper 49, 55 M(-Cliing i'. Silliman 304 McCracken ,-. ITayward 289 MeCnllocli r. Maryland 538 McGuye r. Commonwealth.... 288 Mclntyre u. Wood 304 MoMaiian r. Allen 77 McNeal u. Holbrook 126 McNeil, ex parte 573 Meeks r. Olpherts 584 Mercer !). Selden 18 Miles !i. Ijingennaii... 15 Miller K. United States 539 Milwaukee, &e., R. R. Co. v. Milwaukee, &c., R. R. Co... 75 Jlhniesota Co. v. St. Paul Co. 27 Montpelier v. East Moutpe- lier 364, 382 Morgan ti. Louisiana 156 The Morning Light 182 Moses V. McFerlan 164 The Moses Taylor 47 Moidtric Co. v. Savings Bank.. 224 Movhisu. Arthur 142 Murdook u. Memphis 351 Murray u. Charleston /..... 560 ('. Hobokeu Land Co.. 538 Mntelle, irere 311 National Bank v. Burkhardt... 179 V. Graham 263, 291 Nat. Water Co. u.Biigby.. 129, 138 Neeoe «. Heely 96 Newhall K. Saucer 350 New Orleans v. Steamship Co. 48 Newton v. Commissioners 188 Steamer New World v. Kii>g., 171 Cases Cited. Page. Olcott V. Bynam .'539 Oliver u. Anderson 461 V. Worcester 3S2 Oregon v. Lane County 366 Orleans y. Pratt 223 Osborne v. Bank of U. S 49. JiS Osterhontjj. Hill 405 Otto V. Brent 31 Ovvings V. Tiernan...! 389 Pacitie Insnrance Co. v. Sonle. 547 Parks V. Brinkerhotf. 404 Patterson u. Hill 406 People w. Mon-is 364 y. Murray 292 Perkins v. Goodman 404 Perry w. Waslibnrii 367 Philadelphia v. Fox 364, 382 V. Greble 367 Piedmont L. Ins. Co. v. Ewinj;;. 38 Pine Grove u. Talcott 86 Powell V. Thomas 31 Presidents. Indianapolis 366 Prosser v. Edmonds 74 The Protector 258 Proutw. Wiley 20 Railroad Co. «. Grant 352 V. Han'ning 485 V. McCarthy 291 V. Pollard 171 I;. Shntte 87 V. Stewart 292 V. Twombly 570 Kees V. Watertown City... 3G9, 372 380, 385 Removal Cases 56,111 Bicli V. Lambert 461 Richmond, &c.. R. R. Co. v. Louisa R. R. Co 413 Robinson v. Lane 251 Rogci'S 1'. The Marslial 570 Roof V. StaH'ord 17 Russell «. Dodge 65 Rntledge u. Fogg 385 Ryan v. Jackson 98 Page. Sampson v. Williamson 298 The Sapphire 182 The S. B. Wheeler .'.. 333 Schaefer u. Cadvvalader 366 Schneider «. Seiffman 31 Selioley u. Rew 547 Schuyler Co. v. Thomas 263 Scotland Co. ■«. Thomas 263 Scranton v. Stewart 14 Seaver v. Bigelow 461 Si'lnia Railroad Co. v. Louisi- ana National Bank 389 Settembue ». Putnam 579 Sevier v. Haskell 288 Sexton V. AVheaton 72 Seymour u. Osborne 65 Shaw V. Parker 396 Sherman v. Bnick 129, 135, 137 Shields i'. Barrow 455 V. Thomas 461 Sliinbone v. Randolpli County. 41 Sillinian u. United States 332 Sims u. Hnndley 126 Skillern w. May 414 Skillman v. Lockman 578 Small B.Danville 381 Smitii V. Goodyear Dental Vnl- canite Co 146 Smith <:. Rnssell 104 u. United States.... 439, 441 Soulhcate v. Stanley 487 Spear t'. Cote 103 Sperry v. McKinley 539 SpoHbrd K. Kii-k 451 Stanton v. Embrey 90 State V. Murray 187 V. Plaisted 18 V. Smith 187 Steamboat Co. c. Chase 47. Stokes V. Saltonstall 171 Story, ex parte 414 Stowell D.Raymond 31 Stratton v. Jarvis 461 Stroud u. Springtield 103 The StruggW 405 Sweeney v. Old Col 485 Symp.son v. Henderson.. 404 Caseb Cited. XI Pago. Taylor v. Castl« 579 ('.Weld 291 V. Willliims 92 Texas w. White 289 Thompson b. Tolmiu 396 Tj'lei- V. Defroes 539 Uaion S. S. Co. «. N". Y. & Va. S. S. Co 1S2 United Suites v. Anderson 258 V. Bontwell 401 I. Breitlin^- <.)0 V. Bnlonl 441 V. Gillis 451 r. Hartwell 180 ^. Hodson..29l), 292 r. Jones 441 V. Kiny 567 V. Knight 46 V. Lapeyie 257 V. Mauriee 186 t. Norton 257 V. STo.ves 187 V. Kailroad Co.. 364 V. Steft'ens 459 V. Stone 307 Upton f. Trebilcock 295 Vance r. Campbell 126 Vanliook v. WhitlocU 292 Pnge. Vannevei- o. Bryant 112 Van Kenssalaer u. Watts 389 Vcazie v. !Moore 458 Vesey Bank v. Fenno 545, 547 Von Hoffman v. Qninc.v City... 387 VoHieos V. Bank of U. S 396 Walker u. C'on<>-i-eve 391 Walton V. United States 94 Waltz V. Biiri'oway 397 Wanen c.Levilt 309 Wash. Briilfje Co. i: Stewart.. 414 Waison K. Jones 27 Webster v. Upton 295 Weller c. Carroll 103 Wellon (. ilissonri 81. 469 Weslon V. Charleston City.. 59, 288 While V. Franklin Bank 291 (. Jones 408 Whitni'y K. Railroad Co 434 Wilbeek v. Wayne 93 Wiley B. Pavey 397 Wilson V. Blackbird, &o., Co... 468 I'. City Bank 247 VVingtield v. Crenshaw 408 Wiswall t. Sanipsoii 28 Wi.swell V. Starr 251 Woodruff B.Trapnal I; 557 Wriorht r. Bales 126 MORRISON'S Transcript. DECISIONS SUPREME COURT OF THE UNITED STATES, October Term, 1880. Daniel Hand v. Johnson IIagood, substituted foe, Thomas C. Dunn, Comptroller -General of the State of South Carolina. A judgment of the Snpi-eme Court of South Carolina decreeing, under tlie provisions of a State statute, the possession of a railroad in tlie State to tlie Comptroller-General of the State, as against a receiver appointed by another court, but leaving all questions of priorities of lien unsettled, and remanding for such orders as may be necessary to give elfect to its judgment, is not such a final judgment as to author- ize a writ of erroi'. Error to the Supreme Court of the State of South Carolina. Motion to dismiss. The facts necessary to be stated are as follow: An act of South Carolina, approved March 2, 1869, author- ized the S. & C. R. E. Co. to issue certain bonds, and provided that a certain time after default in the payment of principal or interest of the said bonds the Comptroller-General of the State should take possession of the road and lease it till the General Assembly should provide for the settlement of its affairs in the interest of all its creditors. On default in the paj^ment of certain interest, the Court of Common Pleas of the county of Charleston made a decree dated April 28, 1874, putting Charles T. Mitchell in possession of the road as its receiver. On February 24, 1875, the Comptroller-General of the State made a formal demand on Mitchell for possession of the road, which was refused. He then filed his petition in the Hand v. Hagood. [Oct. Term, Opinion of the court. First Circuit Court of the State praying that possession be de- creed him. The said petition was dismissed by the Circuit Court, whereupon the Comptroller -General, appealed to the Supreme Court of the State, which entered the following order: " On hearing the petition Hied in the said case, it is ordered that the judgment of the Circuit Court dismissing the same be reversed. "It is also ordered and adjudged that the said Thomas C. Dunn, as Comptroller of the State, by virtue of the power under the act of 1869, referred to in the pleadings, is author- ized to. take possession of the said Savannah and Charleston Railroad, with all its appurtenances, and hold and administer the same according to the power conferred by said act. "The assets of the road to be subject to the direction of the court, and the order now made to be in nowise regarded as afiecting the lien obtained by any creditor of the road estab- lished in the principal cause, or in any way affecting the rights of creditors. "The petition is remanded to the Circuit Court for such order as may be necessary to give effect to the judgment of this court." Thereupon the plaintiff in error obtained a writ of error from this court, on the ground that the above judgment im- paired the obligation of contracts, (this question not being passed upon by the court, it is not deemed necessary to set forth the facts bearing upon it,) and the defendant in error moved to dismiss, on the ground that the order appealed from was not a final judgment. P. Phillips, for plaintiff in error. Corbin and even of open spiral links. A chain had also been made and worn, and it was for sale in the 1880.] PeARCE v. MtTLFORD. 11 Opinion of the court. stores, the links of which were hollow. They were made' solid, with copper wire inside. The copper wire wi^s then destroyed, leaving the links hollow, and they were then sprung together to form a chain. The chain was thus composed of open spiral links made of hollow metal ; that is, of tubing. It is true, as appears from the model which is an exhibit in the case, the two ends of the spiral were bent outward and the coils were soldered together after the links had been sprung into each other. Still, when thus sprung into each other, they made a chain formed of open spiral links of tubing. The soldering was a distinct and after process. Omitting that process and the outward deflection of the ends, and alternating the links with other links made closed and solid, the chains would have been substantially the same as that of plaintiff. We cannot think the advance which the patentee made upou that can be called invention. Leaving the links open after they have been sprung into closed links, there being no novelty in the links themselves, cannot be patentable. It is nothing more than the exercise of ordinary mechanical skill. If, in one of the complainant's chains, after the links had been joined, a person should solder the spirals together or to the closed rings, it could hai'dly be maintained that a new chain had been in- vented. Or if, when thus soldered, the soldering should be removed, the change would not deserve to be regarded as a product of invention. Yet this is substantially what the pat- entee has done. His chain may have been an improvement on the chains that preceded it. In some particulars it doubt- less was. It left the elasticity of the spiral gold tubing more free by releasing the link from the attachment of the soldering, and it enabled the chain to be freely taken in pieces without injury to its structure. But all improvement is not invention, and entitled to protection as such. Thus to entitle it, it must be the product of some exercise of the inventive faculties, and it must involve something more than what is obvious to per- sons skilled in the art to which it relates. In this case, neither the , tubing nor the open spiral link 12 Sims v. Everhardt. [Oct. Term, Opinion of the court. formed of tubing, nor the process of making either the open or the closed link, nor the junction of closed and open spiral links in a chain, was invented by the patentee. We are, there- fore, constrained to hold that the iirst claim of the patent, even if not void for want ' of novelty, is void for want of patenta- bility. The decree of the Circuit Court is therefore reversed, and it is ordered that the bill be dismissed. Eevbrsed. Anna M. Sims v. Wm. Everhardt and Elizabeth E. Bur- son, EXECUTOR AND EXECUTRIX OF MAGDALENA EvERHARDT, DECEASED, MARGARET DaRLINGTON, AND JaMES EvERHARDT. 1. A marciecl woman who has made a deed of her lands diinng her infancy and covei'tnre need not disafRrm it on coming of age, if her coverture still continues. A disaffirmance after the end of the coverture is not too late. 2. Under the circumstances of tliis case a disaffirmance twenty-one years after the date of the deed and two months after the close of tlie cov- erture, is in a reasonable time. 3. A written representation by an infant, at tlie time of entering into the contract, that she is of age, does not operate as an estoppel to prevent her from disaffirming the contract. 4. Semble that mere inertness or silence by an infant, continued for a period less than that proscribed by the statute of limitations, unless accompanied by affirmative acts manifesting an intention to assent to the conveyance, will not bar the infant's right to avoid it. Appeal from the Circuit Court of the United States for the District of Indiana. Arthur D. Rich, for appellant. E. B. Smith and W. H. Calkins, for appellees. Strong, J. — This case shows that the complainant was mar- ried on the 14th of July, 1844, to John B. Sims. She was 1880.] Sims v. Everiiardt. 13 Opinion of the court. then a minor less than seventeen years old, having been born on the 25th of September, 1828. On the 3d of April, 1845, her father conveyed to her in fee the tract of land now claimed by the defendants, and on the 28th day of May, 1847, joining with her husband, she executed a deed for the land to Mag- dalena Everhardt, the mother of the defendants. The deed was subscribed by her and her husband in the presence of a magistrate, was acknowledged in due form, and the purchase- money was paid. Mrs. Everhardt went into immediate pos- session, paid a mortgage upon the property, paid taxes, con- tinued in possession, and made improvements until her death in 1871. The defendants have succeeded her as her devisees. When the deed to Mrs. Everhardt was made some doubts appear to have been entertained upon the question whether the complainant was then of full age, and to remove them she signed a statement, which was written on the deed, declaring that she was twenty-one years of age on the 25th day of Sep- tember, 1846. There is evidence that early in her married life, before the deed was made, the complainant received very ill treatment from her husband; that he insisted upon her selling the place; that he employed threats; that she became afraid of him ; that a look from him would make her do al- most anything, and that she knew nothing of any arrangement to sell the property until the deed was brought for her to sign in her own house. On the 14th day of February, 1870, the complainant was divorced from her husband, John B. Sims, for his own fault. In the month of March next following, or early in April, she caused her deed to Mrs. Everhardt to be disaffirmed, and demanded possession of the land. Her demand not having been complied with, this suit has been brought to set aside the deed, and for an account of the rents and profits of the land, as well as of the amount the complainant is in duty bound to pay to the defendants on account of the purchase-money paid by the grantees and the mortgage aforesaid. Assuming, as we think it must be assumed, and as it is cer- 14 Sims v. Evekhardt. [Oct. Term, Opinion of the court. tainly held in Indiana, that the deed of Mrs. Sims, in which her husband joined, though made during her minority, was not void as against her, but only voidable, and hence that it was incumbent upon her to disaffirm it within a reasonable time after she came of age, the inquiry is still to be met, what was a reasonable time under the circumstances of the case? She gave notice of her disaffirmance almost immediately after she became discovert — certainly within less than two months. This was, however, a little more than twenty, years after she attained her majority. The Circuit Court dismissed the complainant's bill for the reason that it did not appear she had disaffirmed the deed of May 28, 1847, within a reasonable time after the attainment of her majority, being of opinion that the rule was established in Indiana she must have so disaffirmed it, notwithstanding her covei'ture; that is, in the same time as if she had been discovert! We find no decision of the Indiana courts that ought to be regarded as establishing that rule. The case relied upon by the appellees, in support of the judgment of the Circuit Court, is Scranton v. Stewart ei al., 52 Ind., 68. The facts of that case„ it must be admitted, were in some respects like those of the present, though in others essentially different. The plaintiff" was at the time of her marriage an infant, aged six- teen. She was then seized in fee-simple of a tract of land containing forty-five acres, and also of an undivided interest in another tract. On the 2d of March, 1804, when she was in the nineteenth year of her age, she and her husband convey- ed the lands to one George W. Stewart for the consideration of two thousand five hundred dollars, a considerable part of which was paid. Mrs. Scranton came of age on the 12th of January, 1867, gave notice to Stewart of her disaffirmance of the deed on the 22d of July, 1870, and shortly after brought her action to recover the land. This was more than three years and a half after she had attained her majority. The Su- preme Court held that her disaffirmance was in time. It was 1880.] Sims v. Everhardt. 15 Opinion of the court. all the case required. But the judge weut on to declare that a married woman who has made a deed of her lands during her infancy and coverture must disaffirm it within a reason- able time after she arrives at age, notwithstanding her covert- ure, and that the fact of the continued coverture would not ■extend the time for the disaffirmance. All this was obiter. It had nothing to do with the case before the court. Nothing in the facts or the judgment required the assertion of such a rule. And it is observable that it was said iu a case in which it appeared the married woman was seized .of her land before her marriage, and that she was married in 1864, after the stat- utes of the State had greatly enlarged the power of a feme-covert over her property. Those statutes had given her the rights of &. feme-sole in regard to her lauds, and empowered her to sue as such without joining her husband. They had denied to a hus- band the rights which at common law he acquired in the wife's property by the marriage. They had made her lands and the profits of them her separate property, as fully as if she was un- married, with a single exception, that she could not incumber or convey them except by deed in which her husband should join. The eftect of the State statute, touching the marriage relation and the. liabilities 'incident thereto, was in part consid- ered in Miles v. Lingennan, 24 Ind., 385, where it was said by the Supreme Court of the State: "Under our present statute the wife may bring her action in regard to her own estate as though she were a feme-sole. Still our Legislature has seen proper to continue the protection formerly accorded to her as a feme-covert, although as to her power to disaffirm her con- tracts made during minority, her legal disability has been re- moved. She has the legal power to disaffirm her contracts made during infancy, and to bring her action without the as- sent, and even against the will, of her husband." This lan- guage, if not a positive assertion of its converse, contains at least a strong implication that her power to disaffirm a convey- ance made by her during infancy did not exist at common law, or before the statutes of 1847 and 1852 were enacted. . 16 Sims r. Everhardt. [Oct. Term, Opinion of the court. We find nothing in any prior decision of the Indiana courts that sustains what was said, ohiter, in Scranton v. Stewart. Law V. Long, 41 Lid., 586, to which reference has been made, decides that the deed of a minor, conveying her land for a val- uable consideration, is voidable only and not void, and that the right to avoid it on coming of age is a personal privilege of the minor and her heirs. It also decided that when the act of an infant is executed, as when a deed has been made and deliv- ered, the infant must, on attaining full age, do some act to dis- affirm the contract, and that such act must precede the com- mencement of an action. But the case did not define what is a reasonable time, or rule that if the wife came of age during coverture she was bound to disafiirm.the contract notwithstand- ing her coverture, as if she was & feme-sole. In that case the conveyance was made by the wife and her husband before the act of 1852 was passed. The husband died in 1852. The wife married again in 1853, and came of age in 1854. Her second husband died in 1864, and she married a third time in 1868. It was not until after her third marriag§ that her suit was brought. She had been discovert during more than four years after her deed was made, and after she had reached her major- ity, and yet she had taken no step or done any- act to disaffirm the deed prior to the institution of her suit. No intimation is ■given in the case that she was bound to disaffirm, or could dis- affirm, during her coverture. Nothing, therefore, in Law v. Long suppoi-ts what was said, but not decided, in Scranton v. Stewart. But if the law was accurately stated in the opinion given by the court in Scranton v. Stewart, as applicable to a deed of her lands made by an infant feme-covert after the statute of 1852, it by no means follows that it should rule the present case. There is a I'adical difference in the facts of the two cases. Mrs. Sims was married before the act of 1852 or that of 1847 was passed, and while the common law relative to the marriage relation existed. By the marriage her husband acquired a vest- ed freehold interest in her lauds, and became entitled to the 1880.] Sims v- Everharbt. 17 Opinion of the court. rents and profits. His control over the usufruct thereof became absolute. His interest extended during the joint lives of him- self and his wife, or at least so long as the marriage relation continued. It was an interest capable of sale. When, there- fore, the deed was made to Mrs. Everhardt in 1846, it gave to the grantee the wife's right, subject to disaffirmance, and the husband's right to the possession and enjoj-meut of the profits absolutely. When the wife subsequeutl}' came of age she con- tinued powerless to disturb the possession of the grantee, so long as her coverture lasted, for the grantee held not only her right, but that also of her husband. The most she could have done was to give notice that she would uot be bound by her deed. Was she required to do that? To answer the question it is important to keep in mind her condition at common law. The land was not her separate estate, such as the wife had in Scranton v. Stewart. In regard to it she was sub potestate inri, incapable of suing or making any contract without her husband's assent, except such as might relate to separate prop- erty. She could no* even receive a grant of land if her hus- band dissented; Her disability during her coverture was even greater than that of an infant, and it is settled that an infant caunot disaffirm his deed while his infancy continues. (Zouch V. Parsons, 3 Burrows, 1808; Roof r. Stafford, 7 Cowan, 183.) The reason is that a disaffirmance works a reihvestiture of the estate in the infant, and he is presumed not to have sufficient discretion for that. Why should jiot the greater disability of coverture be attended with the same consequences ? If a wife cannot contract about any laud which is not her separate prop- erty, how can she, without the concurrence of her husband, do any act the effect of which is to transfer the title to land from another to herself? We are not, however, called tipon by the exigencies of this case to decide that a wife cannot, during her coverture, dis- affirm a deed which she made during her infancy. The ques- tion now is, whether Mrs. Sims did disaffirm her deed within a reasonable time after she attained her majority. What is a 2 18 Sims v. Everiiardt. [Oct. Tcrnj, Opinion of the court. reasonable time is nowhere determined in such a manner as to furnish a rule applicable to all cases. The question must always be answered in view of the peculiar circumstances of each case. (State v. Plaisted, 43 IST. H., 413 ; Jenkins v. Jenkins, 12 Iowa, 195, and numerous other cases.) It must be admitted that, generally, the disaffirmance must be within the periods limited by the statute of limitations for bringing an action of ejectment. A much less time has in some cases been held unreasonable. It is obvious that delay in some cases could have no justification, while in others it would be quite reasonable. Now, in this case, though there was no disaffirmance for nearly twenty-one years after Mrs. Sims attained her majority, there were very remarkable reasons for the delay, sufficient, in our opinion, to excuse it. When the deed was made she was laboring under a double disability — infancy and. coverture. Even if her deed and that of her husband had not conveyed his marital right to the possession and enjoyment of the land, she would have been under no obligatipn, imposed by the statute of limitations, to sue until both the disabilities had ■ceased; that is, until after 1870. It is an acknowledged rule, that when there are two or more coexisting disabilities in the same person when his right of action accrues, he is not obliged to act until the last is removed. (2 Sugden on Vendors, 103 (482); Mercer v. Selden, 1 How., 63.) This is the rule under the statute of limitations. But Mrs. Sims could not sue until after her divorce, and until the right the husband acquired by his marriage terminated. And had she given notice during -her coverture of disaffirmance of her deed, it was in the power of her husband to disaffirm her disaffirmance, (2 Bishop on Married "Women, sec. 392.) Giving notice, therefore, which was all she could do, would have been a vain thing. The law ■does not compel the performance of things that are vain. Mr. Bishop, in his work to which we have referred, says that if an infant, who is also a married woman, makes an instrument voidable because of her infancy, the disability of coverture 1880.] Sims v. Everhaedt. 19 Opinion of the court. enables her to postpone the act of avoidance to a reasonable time after the coverture is ended. (Sec. 516.) In support of this he refers to Dodd v. Benthal, 4 Heiskell, 601, and Mather- son V. Davis, 2 Colder, 443. These cases certainly sustain the rale stated in the text. In the former it was decided that an infant, who is also a married woman, has the option to dissent from her deed witbiu a reasonable time after her discoverture, though her coverture may continue more than twenty years. And if this were not so, the (Usability of coverture, instead of being a protection to the wife, as the law intends it, would be the contrary. We have found no decision that is in conflict with this doctrine, and no dicta even, except those in Scranton V. Stewart. And why should the rule not be thus ? The person who takes a deed from an infant feme-covert knows that she is not sui juris, and that she will be under the control of her husband while the coverture lasts. He is bound to know, also, that she has the disabiUty of infancy. He assumes, therefore, the risk attending both those disabilities. But the continued coverture of Mrs. Sims, after she attained full age, is not the only circumstance of importance to the inquiry whether she disaffirmed her deed within a reasonable time. The circumstances under which the deed was made are to be considered. There is evidence that she was constrained by her husband to execute the deed ; that his conduct toward! her was abusive, violent, and threatening in order to induce her to consent to the sale; that she was intimidated by.himr;. that a look from him would make her do almost anything;, and that she was in a weak and nervous condition. It is not strange that a woman bound to such a husband should delay during her coverture disaffirming a contract which he hadl forced her to make. Add to this that she had very little opportunity to disaffirm! until after her divorce. Before she had reached her majority she removed to another State and never returned to the neigh- borhood of the property to reside. Between 1848 or 1849 and 1870 she made but two visits to Laporte, both on account of 20 Sims v. Everhardt. [Oct. Term, Opinion of the court. sickness or the death of a relative, and neither visit was pro- longed beyond three days. It is not a case, therefore, of stand- ing by after she came of age and seeing her property in the enjoyment of another. And again, she never did any act after her deed was made and after she came of age expressive of her consent to it, or implying an affirmance of the contract. The most that is alleged against her is that she was silent during her coverture. But silence is not necessarily acquiescence. We are aware that the decisions respecting the disaffirmance of an infant's deed are not in entire harmony with each other. While it is generally' agreed that the infant, to avoid it, must disaffirm it within a reasonable time after his majority is at- tained, they dift'er as to what constitutes disaffirmance and as to the effect of mere silence. Where there is nothing more than silence, many cases hold that an infant's deed may be avoided at any time after his reaching majority until he is barred by the statute of limitations, and that silent acquiescence for any period less than the period of limitation is not a bar. Such was, in effect, the ruHng of Irvine v. Irvine, 9 Wall., 627. See also Prout v. Wiley, 28 Mich., 164, a well-considered case, and Drake v. Ramsey, 5 Ohio, 151. But, on the other hand, there appears to be a greater number of cases which hold that silence during a much less period of time will be held to be a .confirmation of the voidable deed. But these cases either rely upon Holmes v. Blogg, 8 Taunt., 35, (which was not a case of an infant's deed,) or subsequeut cases decided on its authority, or they were rested in part upon other circumstances than mere silent acquiescence, such as standing by without speaking while the grantee has made valuable improvements, or making use of the con-sideration for the deed. We think the pi'eponder- imce of authority is that in deeds executed by infants, m.ere inertness or sijence, continued for a period less than that pre- scribed by the statute of limitations, unless accompanied by iiffirmative acts, manifesting an intention to assent to the con- veyance, .will .not .bar the infant's right to avoid the deed. 1880.] Sims v. Everhardt. 21 opinion of the court. And those confirmatory acts must be voluntary. As we have said, one who is under a disability to make a contract cannot contirni one that is voidable, or, what is the same thing, can- not disaffirm it. Affirmance or disaffirmance are in their natui'e mental assets. They necessarily imply the action of a free mind, exempt from all constraint or disability. In view of these considerations, our conclusion is that Mi's. Sims, the complainant, having been a feme-covert until 1870, and never having done, during her coverture, any act to con- firm the deed which she made during her infancy, could etiect- ively disaffirm it in 1870, when she became a free agent, and that her notice of disaffirmance and her suit avoided her deed made in 1847. The remaining question is whether she is estopped by any- thing whieli she has done from asserting her right to the land in controversy. In regard to this very little need be said. It is not insisted that she has done anything since she has attained her majority which can work an estoppel. All that is claimed is that when she made her deed she asserted that she was of age and competent to convey. We are not, therefore, required to consider how far a married woman can be estopped by her acts when she has the single disability of coverture. The question is whether acts and declarations of an infant during infancy can estop him from asserting the invalidity of his deed after he has attained his majority. In regard to this there can be no doubt founded either upon reason or authority. With- out spending time to look at the reason, the authorities are all one way. An estoppel in pais is not applicable to infants, and a fraudulent representation of capacity cannot be an equivalent for actual capacity. (Brown v. McCIure, 5 Sanf., 228; Keen v. Coleman, 39 Penn. St., 299.) A conveyance by an infant is an assertion of his right to convey. A contempo- raneous declaration of his right or of his age adds nothing to what is implied in his deed. An assertion of an estoppel against him is but a claim that he has assented or contracted. 22 Groat v. O'Haee. [Oct. Term, Opinion of the court. But he can no more do that effectively than he can make the contract alleged to be confirmed. It is, however, unnecessary to dilate upon this branch of the case. The judgment of the Circuit Court was not rested upon any estoppel of the complainant. Our conclusion upon the whole matter is, that the complain- ant was entitled to the decree for which she asked, and the decree of the Circuit Court is accordingly reversed, the record to be remitted with instructions to enter a decree in accord- ance with this opinion. Reversed. William H. Groat and Henry Himber v. Owen O'Hare. Ill this case the court passes upon certain questions of fact involved in tlie settlement of accounts of a partnership between the partners, and remands for fui'thcr testimony to be talcen in reference thereto. Appeal from the Supreme Court of the District of Co- lumbia. J. T. Crittenden, for appellants. R. T. Merrick and M. H. Morris, for appellee. Waite, C. J. — We are not satisfied from the evidence that the court below was right in directing the auditor, in stating the accounts of the partnership, to credit O'Hare with |2,926.20, for items set out in schedule D, annexed to the first report. It is clear to us that the items, amounting in the aggregate to .$1,650, for hire of horse and buggy, are not proven, but it is "impossible, from the case as it now stands, to determine what amount, if any, should be allowed for these and the other ■claims in that schedule. We think, also, that the parties should be permitted to pro- 1880.] People's Bank v. Winslow. 23 Statement of the case. duce further evidence in respect to tlie eertiiicafes amounting to $5,600, which O'Hare, on his cross-examination before the , auditor under the reference from the general term, admits he received from the Evans Concrete Company. It is clear that he should be now charged with this amount, unless it has al- ready been included in the accounts as stated by the auditor. It is impossible to determine from the case as it is now pre- sented whether he has been so .charged or not. We iind no other errors in the action of the court below. The decree is reversed and the cause remanded, with instruc- tions to permit the parties, if they desire, to take further testi- mony in respect to the items of charge by O'Hare, as stated in schedule D, and the certificates received by O'Hare from the Evans Concrete Company, and for such further proceedings, not inconsistent with this opinion, as shall seem to be necessary. Reversed. The People's Bank of Belleville v. Edward F. Winslow ET AL. 1. Where a Ciicuit Court of the United States had entertahied a suit for tlie foreclosure of a mortgage on a railroad, and had taken possession of all the railroad property by its receiver and still retained possession of tlie same, and a suit was subsequently instituted in a State court in which the same raili-oad was seized l)y altacliment process, which subsequent suit was then removed Into tlie United States Circuit Court : Held, That although the citii^eushlp of the parties was not such as to confer jurisdiction on the United States court, yet tliat it had jurisdiction by reason of its having possession of the res, or sub- ject-matter of litigation. 2. A deed,profes5ing to convey the property in controversy by the parties against whom tlie attachment ran before the writ of attachment was issued, is relevant to an issue as to the ownership of the property at the date of the levy of the writ, altliongh its acknowledgnieut may be defective. 24 People's Bank v. Winslow. [Oct. Term, Opinion of the court. Error to the U. S. Circuit Court for the Southern District of Illinois. This was a writ of error to the Circuit Court of the United States for the Southern District of Illinois. It came up on a motion to dismiss for want of jurisdiction and on the merits. The decision of the. court went to the merits. It had heen tried and decided by the court below by consent of parties without a jury, but no stipulation in writing waiving a jury was tiled. The defendants in error moved to dismiss on the ground that such a judgment was not reviewable. Charles W. Thomas, for plaintiff in error. B. H. JBristoiv and W. S. Opdyke, for defendants in error. Miller, J. — The plaintiti" in error brought its suit in the Circuit Court for the county of St. Clair, in the State of Illi- nois, against Edward E. Winslow and James H. Wilson on two promissory notes, on which they alleged that the sum of $40,733.36 was due. At the commencement of the suit the plaintiff obtained a writ of attachment, which was levied on the right of way, iron track, &c., of the road known as the Belleville and O'Fallon Eailroad, and its appurtenances, situ- ated in St. Clair county. At the first term of the court a stip- ulation between the parties was signed and presented to the court for the removal of the case into the proper Circuit Court of the United States. The case was accordingly removed and prosecuted to final judgment in the Circuit Court for the Southern District of Illi- nois, without objection by either party. After the record -was filed in the Federal court, Philo C. Calhoun and George Opdyke, defendants in error here, pre- sented a petition of interpleader, under a statute of Illinois which permitted such a proceeding in attachment cases, alleg- ing that Winslow and Wilson wore not the owners of the railroad on which the writ had been levied, and that the peti- .1880.] People's Bank y. "Winslow. 25 Opinion of the court. tioners ■were the owners, and praying that the attachment be dissolved. No defense was made by Winslow and "Wilson, and the court rendered judgment against them for the sum due on the notes, and in the record of the judgment was incorporated an order of sale of the attached property. The issue made by the petition of Calhoun and Opdjke was tried some time after this and judgment rendered in favor of the latter, with an order dismissing or dissolving the attachment. This latter issue, though triable by jury, was submitted to the court by an agreement waiving the jury. A bill of exceptions of sixty pages of the printed record gives the history of this trial, and concludes as follows: "And now the court found the said property in said inter- plea described to be the property of said interpleaders, and that it was not subject to the said attachment, and was not the property of Edward F. Winslow and James H. Wilson at the date of levy of said attachment, but was the property of the interpleaders; to which ruling and decision of the court the plaintifi", by its counsel, at the time excepted. "And the court ordered said attachment to be dismissed, and to this ruling and decision of the court, plaintift", by its counsel, at the time excepted ; and inasmuch as the matters and things above set forth are not of themselves matters of record in said cause, the plaintiff presents this its bill of exceptions, which it prays may be signed and sealed and madei part of the record, which is done. S. H. Treat. [seal.J" It has long been the established doctrine of this court, that no such exceptions as these, to the judgment of the court on the facts submitted to it, can be inquired of by this court under the provisions of the act of Congress providing for the mode and the effect of submitting cases triable by jury to the court alone. There are, however, one or two exceptions to the admission of evidence on the trial which can be and have been assigned for error, and a still more important question is raised by the record outside the bill of exceptions which demands Qur atten- 26 People's Bank v. Winslow. [Oct. Term, OpiaioQ of the court. tion. The latter relates to the jurisdiction of the case in the United States court as supposed to be acq^uired by the removal proceedings in the State court. As we have already said, this was founded on the written consent of the bank and of Wins- low and Wilson, who were the only parties to "the suit. It needs no citation of authorities to show that the mere consent of parties cannot confer upon the courts of the United States the jurisdiction to hear and decide their cases. If this were once conceded, the Federal courts would become the common resort of persons who have no right, either under the Constitution of the United States nor by the laws creating them, to litigate in those courts. It is not necessary for us to decide whether a paper might not be drawn up and signed by the parties which showed, on its face, that, either by reason of the citizenship of the parties or the subject-matter of the litigation, the case was properly cognizable in a Federal court, and that court could, on the assent of the ^rties, take jurisdiction either by way of original proceeding in such court or by removal from a State court. No such case is presented by the agreement for removal found in this record. Nor does it anywhere appear in this record that the parties ha-d tlie citizenship or alienage which would authorize the Federal court to entertain jurisdictioii of the case. The record of the case, however, shows that, prior to the beginning of plaintiff's attachment suit, there was pending in the Circuit Court of the United States a mortgage-foreclosure suit, in which Calhoun and Opdyke were plaintiffs, and in which they had procured the appointment of a receiver, who held possession of the railroad under the order of that court at the time the plaintiff's writ of attachment was levied on it. It is further shown that Calhoun and Opdyke made application to the court sitting in chancery to enjoin the plaintiff from proceeding in the State court with his attachment. No dis- position seems to have been made of this application, and it is a reasonable inference that the removal of the attachment suit 1880.] People's Bank v. Winslow. 27 Opinion of tbe court. from the State court into the court which had possession by its officer of the property attached, was made to avoid the conflict which might arise if the cases proceeded to tinal judgment in courts of different jurisdictions. "We think this was not only pei'missible, but was the proper course to be pursued in such case. The jurisdiction of the United States court does not here depend on the citizenship of the parties, but on the subject-ijiatter of the litigation. That was in the actual possession of that court when the State court attempted to levy its writ of attachment on the property. It was for the court having such possession to determine how far it would permit any other court to interfere with that posses- sion, and what effect it would give to the attempt of another court to seize the property so under its control. Courts of equity have had no hesitation in punishing as contempts of their authority persons who bring suits against corporations in the hands of their receivers, and it is the constant practice to ask the permission of the court to institute suits against its receiver when they concern the property in his hands. The plaintiff was attempting in the State court to enforce a lien on the railroad by judicial sale, which was a rival and conflicting lien to that of Calhoun and Opdyke, who were pro- ceeding in the Federal court to sell the same property under their lien. The latter court had not only obtained jurisdiction of the question of lien prior to the initiation of plaintiff's suit, but it had taken possession of the property by its receiver. It had thus drawn to itself the subject-matter of the litigation and the right to decide upon the conflicting claims to the posses- sion and control of the road. These principles are not new in this court. They will be found to be sustained by the cases of Minnesota Co. v. St. Paul Co., 2 Wall, 609 ; Watson v. Jones, 13 Wall., 715 ; Freeman V. Home, 24 How., 450 ; and Buck v. Colbath, 3 Wall, 337. In consenting, therefore, to the voluntary transfer of the liti- gation from the State court into the Federal court, the parties did no more than what they could have been compelled to do 28 People's Bank v. Winslow. [Oct. Terra, Opinion of the court. by the injunction of the latter, and what would have been done by such compulsory order if they had not submitted to it by agreement. We do not think there was error in the court entertaining jurisdiction of the plea of interpleader of the de- fendants in error. (Wiswall v. Sampson, 14 How., 52.) In the progress of the trial the intervenors offered in evi' dence a deed of trust made by Wirislow and Wilson on the 4th of January, 1876, conveying the railroad in question to Calhoun and Opdyke. Exception was taken to the admission of this deed because the certificate of acknowledgment did not state that the grantors were personally known to the officer taking it, and because .the deed did not tend to prove the issue made. As one of the eertifieates does state that Wilson and his wife were personally known to the officer, the objection to its admis- sibility as to these grantors was clearly unfounded in fact. The effect of the deed was for the court to consider afterwards. And as the deed professed to convey ^he property in eonti'o- versy by the parties against whom the attachment ran, two months before the writ was issued, it is impossible to hold it to be irrelevant to an issue as to the ownership of the property at the date of the levy of the writ. Similar objections were made to a deed made by the same grantors to the St. Louis and Southeastern Eailway Company, of the 5th day of January, 1876, to which the same answers apply. What effect should be given to the fact that these deeds were not recorded until after the levy of plaintift''8 attachment, we need not inquire, for that proposition does not go to the admis- sibility of the deed in evidence, and its decision depends upon other matters, both of law and evidence, as to ^hich no ques- tion is raised by this record. These are all the assignments of error requiring notice at our hands, and in these we find none. The judgment of the Circuit Court is therefore affirmed. Affirmed. 1880.] Andrews v. Congar. 29 statement of the case. Alfred H. Andrews, Herbert L. Andrews, and Thomas L. Hayden v. Henry M. Congar. 1. Where persons not parties to a note place their names on its back at the time it is made, and are sued thereon, and an insti'nction to the jury is given holding tliem gnarantors, whilst one asked by tliem which would have made them indorsers is refused, and the instruc- tion went on and detailed the circumstances under which they would not be lia1)le as indorsers, such an instruction, if error at all, is an error in their favor from which they could not appeal. 2. The Illinois statute requiring proof of execution of an " instrument in writing, upon which any action may have been brought, if the de- fendant denying it verifies his plea by affidavit," requires proof of execution of the guaranty only, and not of the note itself. 3. A refusal to allow one of a partnership to testify as to tlie existence of a private agreement between the partners limiting the authority to incur liabilities for the firm, was correct. 4. On the books of the corporation the account of the plaintiff, its presi- dent, stood balanced. The defendants cannot be allowed to open that account and claim parts of it as a set-off, without proof of fraud or mistake. Error to the U. S. Circuit Court for the Northern District of Illinois. This was a suit upon the following note : "|4,475. St. Louis, loth August, 1873. Two years after date the Western Publishing and School- Furnishing Company promise to pay to H. M. Congar or bearer four thousand four hundred and seventy-five dollars for value received, negotiable and payable witholit defalcation or discount at the "West St. Louis Savings Bank, with interest at 10 p. c. payable annually. H. M. Congar, Pres." Indorsed: " We hereby guarantee the payment of the within note at maturity, according to the tenor and effect thereof. A. H. Andrews & Co." The proof was, that A. H. Andrews & Co. indorsed it in blank, and that Congar, the holder, wrote the above indorse- 30 Andrews v. Congab. [Oct. Term, Opinion of the court. TOent over their name. There were numerous assignments of error. The declaration contained a special count against them as guarantors, iu addition to the ordinary common counts. The remaining facts are sufficiently shown in the opinion. George Herbert, for plaintiffs in error. Charles Hitchcock, for defendant in error. "Waite, C. J. — There are nineteen errors assigned on this record, but those relied on in the argument present in reality but four questions. These are: 1. Whether the court erred in charging the jury that "if a person not a party to a note, that is to saj', not the payee or maker, writes his name on the back of the note at the time the note is made, the presumption is that he has assumed the lia- bilities and responsibilities of a guarantor; this presumption, however, is liable to be rebutted by the proof" 2. Whether, under the practice in Illinois, which is regu- lated by statute, if one is sued as a guarantor of a note, and he verifies his plea of the general issue by affidavit, the plain- tiff must prove the execution of the note itself as well as the guaranty. 3. Whether the defendants should have been permitted to prove that there was an agreement between themselves, as partners, that neither of them should assume any liability on behalf of the firm out of the line of its regular business with- out the consent of the others, and that one of the defendants did not know that the liability sued on was incurred until long after the notes were made and indorsed, and that since he learned it he has always repudiated it. 4. Whether it was wrong for the court to instruct the jury that if, as between the plaintiff and the maker of the note, the maker could not use an account on its booka as a set-off against the note, the defendants as guarantors could not. As to the first question : The charge as given states cor- 1880.] Andrews v. Congar. 31 Opinion of the court. rectly the law of Illinois, as settled by the highest court of the State in a long series of decisions. (Cushman v. Dement, 3 Scam., 497; StowelU-. Eaymoud, 83 111., 120.) The contract, however, was made in Misssouri, and was to be performed there. In that State the rule is that he who writes his name on the back of a note, of which he is neither the maker nor the payee, is prim.a fade liable as a joint maker. (Powell v. Thomas, 7 Mo., 440; Schneider v. Seiftman, 20 Mo., 571; Otto V. Bent, 48 Mo., 26 ; Baker v. Block, 30 Mo., 225.) For this reason it is insisted that the contract is governed by the laws of Missouri, and that the jury should have been so in- structed. Admitting this to be true, it is difficult to see how the plaintiffs in error have been harmed bj' the charge of which the}' complain. They claim to have been presumptively joint makers of the note, while the court told the jury they were guarantors onlj'. Clearly the charge as given was more favor- able than the one contended for. A recovery could have been had against them as joint makers under the common counts. The court, however, after stating what the presumption from such an indorsement was, went on to say: "The law authorizes the holder of a note to write over the name thus written across the back of the note any agreement consistent with that made between the parties at the time the name was placed there ; that is to say, if the party did actually, at the time he put his name on the back of the note, stipulate for any liability short of a guaranty, or different from that of guarantor, then the holder of the note had no right to write a false guaranty over the name." Then, after calling attention to the facts which had been shown in evidence, and the claims of the re- spective parties, it was said : " If you are satisfied that the defendants in this case put their names upon the note at the time it was made with the express understanding that they were to be liable as endorsers, that is, liable after the plaintiff had used due diligence to fix their liability as indorsers, then the defendants are not liable in this action ; but if, on the con- trary, you are satisfied from all the evidence in the case that 32 Andrews v. Congae. [Oct. Term, Ofiinion of the court. the defendants intended to become liable to pay the debt if the maker did not, that is, that they would stand in the relation of sureties and guarantors, substantially as the contract is now written over their names, then the defendants are liable." And again, after referring to a condition which it was proved the plaintiffs in error had incorporated into the obligation they assumed, and which it was insisted should have been expressed in the guaranty as written over their signature, the court said: " If you are satisfied that the positive performance of this part of the agreement was thus waived or abrogated by mutual consent of the plaintitf and defendants before the guaranty was written, then no mention need be made of it." In this way, as it seems to us, the case upon this point was fairly put to tlic jury, and the plaintiffs in error were given the benefit of every circumstance they relied on to establish their defense. If the presumption arising from their indorsement had been overcome by the evidence, the jury were told in express terms to find accordingly. As to the second question: A statute of Illinois provides that " no person shall be permitted to deny on trial the exe- cution or assignment of any instrument in writing * * * upon which any action may have been brought * * * or is admissible in evidence under the pleadings, when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by aflftdavit." (111. Stat., chap. 110, sec. 34.) This action was brought on a guaranty, a copy of which was filed. The affidavit only made it necessary to prove the exe- cution of that instrument. That was done, and that of itself was equivalent to proof of an admission by the guarantors of the due execution of the note. Whether this admission was one that could be contradicted, need not now be determined. It was certainly sufficient until overcome. As to the third question: There is nothing in the case to show, or tending to show, that the execution of the guaranty was not in the line of the regular business of the partnership. On the contrary, it does appear that the partners were the 1880.] Andrews v. Congar. S3 Opinion of the court, owners of a majority of the stock in tlie corporation that made the note, and that the note and guarapty were given with a view to tlie protection and improvement in value of that stock. The transaction was one which appears to have been entered into for the common benefit of all the partners. Under such circumstances it was of no consequence what the secret under- standing of the partners may have been as to the powers of each. The contract being within the scope of the partnership business, each partner is presumed to be the authorized agent of all. As to the f .mrth question : A simple statement of the facts is all that is necessary to dispose pf this question.. The plain- tiff was the president of the corporation, maker of the note guaranteed. On the books he was charged with moneys paid to him from time to time, and credited with a salary and in- terest on his investment in stock. After he went out of oiiice his successor settled with him and paid the balance found to be his due. The books were thereupon balanced. The plain- tiffs in error sought to set off against their liability as guaran- tors of the note the items which appeared on the debit side of the account, without any regard to the credits. As to this, the court instructed the jury that they " must be satisfied that the company itself could use the same set-off against the note before the defendants could avail themselves of it, and that if they were satisfied from the evidence that the plaintiff's account stood balanced on the books of the company as Isept, then the defendants could not set up the, account as a set-off' to the note without showing fraud or mistake in striking such balance." There can be no doubt as to the correctness of this ruling. This covers, substantially, all there is in the case. The other errors assigned are uniniportant, and need not be considered specially. • The judgment is aftivRjed. Affirmed. 3 34 GiDDiNGS V. Life Ins. Co. [Oct. Term, Opinion of the court. LOREN GiDDINGS AND LeANDER GiDDINGS, ADMINISTRATORS OF Silas Giddings, deceased, v. The Northwestern Mutual Life Insurance Company of Milwaukee. The for'm of policy of an insurance company contains a provision tliat the policy "shall nottalve effect and become binclinoj on tlie company till tlie premium lie actually paid, during tlie life-time of tlie person whose life is assured." Tiie plaintiff applied to the company for an insurance. The company, after consideration, made out tlie policy and sent it to their local agents tln-ee weeks after the date of the plaintiff's application. One week after his application the'plaintiff was taken sick, and a month after tlie application lie died. The policy was not called for dnring his life, but two months after his deatli his personal representatives tendered tlie premium to the local agents, and on their refusal to deliver the policy brought suit: Held— ' 1. Tliat the contract of insurance had not been consummated, the ininds of tlie contracting parties not having met, and the pay- ment of the premium being a condition precedent. 2. That his personal representatives could not act for him to complete such a contract by a tender, &c. d. That equity could give no relief, the payment of the premium being a condition precedent, and not having been performed. Appeal from the Circuit Court of the United States for the Northern District of Illinois. This was a bill in chancery to compel the above-named company to perform an alleged preliminary contract to insure the life of Silas Giddings. The facts are sufficiently stated in the opinion of the court. Miller ^ Frost, for appellants. Hoyne, Morion §• Hoyne, for appellee. Swayne, J. — The facts of this case necessary to be consid- ered are few and simple. They are clearly disclosed in the record, and there is no conflict between the parties about them. 1880.] GiDDiNGS V. Life Ins. Co. 35 Opinion of the court. The appellee is a corporation created by the State of Wis- consin. Its principal office and place of business were at Mil- waukee. It was authorized to insure lives. Dean & Payne were its agents at Chicago. ■ The extent of their authority was to receive applications, forward them to the office at Milwau- kee, and, when risks were taken, to receive, countersign, and deliver the policies, collecting, in all cases, before the latter was done, the first premium from the assured. On or about the 6th of August, 1872, a member of the firm of Koberts. & Hubbard, of the county of Warren, in the State of Illinois, at the instance of Silas Giddings, Sr., of the same county, presented to Dean & Payne, at Chicago, an applica- tion, in due form, for a life-insui'ance policy, insuring Giddings in the sum of $6,000. The application consisted of a printed foi'm furnished previously by Dean & Payne. It contained blanks to be tilled with answers of the applicant to the ques- tions propounded, and was tilled up accordingly. Dean & Payne immediately forwarded it to Milwaukee. On the 24th of the same month the company considered the application and decided to issue the policy. It was issued accordingly and bears date on that day. The premium to be paid bj' the assured was $302.52. The policy was immediately sent to Dean & Payne. Not being called for, on the 2d of Octo- ber following they returned it to the company, and it was thereupon cancelled. At the same time that the policy was applied for, an appli- cation was submitted for a loan by the company to Giddings of $6,000. In relation to this matter there is some conffict iu the evidence, but as the view which we take of the case be- fore us renders it unnecessary to consider that subject, we pass it by without further remark. The seventh section of the act incorporating the appellees is as follows: "Every person Avho shall become a member of this corpo- ration, by efi'ecting insurance therein, shall, the first time he efliects insurance, and before he receives his policy, pay the 36 GiDDiNGS V. LiFB Tns. Co. [Oct. Term, Opiuioa of the court. rates that shall be fixed npoii and determined by the trustees, and no preaiium so paid shall ever be withdrawn from said company, except as hereinafter provided, but shall be liable to all the losses and expenses incurred by this company during the continuance of its charter." The polic}', as made out, was according to the. form issued by the company in all cases. Among other things it provided : " 7th. This policy shall not take effect and become binding on the company until the premium be actually paid, during the life-time of the person whose life is assured, to the company or to some person authorized to receive it, who shall countersign the policy on receipt of the premium." Giddings was taken ill of acute pleurisy on or about the 15th of August, 1872, and died of that disease on the 4th of Sep- tember following. On the 12th or 13th of November follow- ing, the appellants, by their attorney, tendered to Dean, of the firm of Dean & Payne, the first premium and demanded the policy. The attorney had also present proof of the death of Giddings. Dean " refused to have anything to do with the matter, as he claimed that the company was not liable." The proof of the death was thereupon transmitted to the home office at Milwaukee. No tender and no demand for the policy was made by any one until the time before mentioned, and uo notice was given by Giddings or by any one in his behalf, during his life, that he intended to consummate the transaction by paying the pre- mium and receiving the policy. All action on his part termin- ated with the delivery of his application to Dean & Payne for transmission to the company. He did nothing afterwards. There his connection with the afl:air ended. Upon this state of facts the appellants insist that the com- pany is liable for the six thousand dollars specified in the undelivered policy. A few remarks will be sufficient to dispose of the case. The presentment of the application to the agents at Chicago, iiB.ti'ansmission to Milwaukee, and its receipt by the company 1880.] GiDDiNGS V. Life Ins. Co. 37 Opinion of the court. in nowise committed or bound the latter to anything. It was competent for the company to pause as long as they might deem proper, and finally to accept or reject the application, as they might choose to do. If they elected to contract they had the right to prescribe the terms, and it was for the other party to assent or reject them. His unbroken silence, as would have been such silence by the company after receiving the applica- tion, was necessarily negation. Neither party in such case would have been bound in anywise to the other, because there would have been wanting the mutual assent of the minds of the parties, which is vital in all cases to the creation of a contract obligation. "What was done, without something further, could have no more weight or efBcacy, in the view of the law, than an unexpressed thought or any other unexecuted intention. The company prepared the draft of a contract which they were willing to execute. Among its stipulations was one that the assurers should not be bound by the instrument until the premium was paid, in the life-time of the assured, and the- policy was countersigned by the authorized agent of the com- pany. This was a condition precedent to the liability of the appellees. It was necessary to their safety. There was noth- ing in it unconscionable or oppressive, and the company had a clear legal right to make it. Where there is a condition subsequent, and it is broken, relief may be given upon equitable terms; but where it is pre- cedent, and neither fulfilled nor waived, no right or title vests,. and equity can do nothing for the party in default. (Davis v. Gray, 16 Wall., 229.) Here there was clearly no performance by the applicant, audi it is equallj' clear that heuce there was no contract or obligation, whatsoever on the part of the company. It was the business of the applicant, if, after sending forward' his application, he continued to desire a policy, to keep up the proper communication with Dean & Payne, and during his life-time to avail himself of the offer which the company had, made. The proposition of the company expired with his life.. 38 Leary v. Long. [Oct. Term, Opinion of tlie court. After his death his legal representatives could not act vicari- oush' for him. To allow them to enforce such a claim would he contrary to the plainest principles of both law and equity. .If authorities in so plain a case are needed, it is sufficient to refer to Ins. Co. v. Young's Administrator, 23 Wall., 106, and Piedmont Life Ins. Co. i'. Ewing, 92 U. S. Eep., 380. What the consequence would have been if, after the appli- cant was stricken with his mortal disease, the premium had been paid and the policy delivered, the company being igno- rant of his changed condition, is a point which we do not find it necessary to consider. The decree of the Circuit Court is affirmed. Affirmed. Paul Leary v. Mary Long, administratrix of Daniel Long, deceased, et al. Where a bill was filed stating that at a formei- time the complainant " filed a bill praying for the same relief, and that the defendant plead thereto, which bill was dismissed for the reason of the default of a replication to said plea," and did not state the nature of the defense sot up in the plea, the presumption is tliat the plea went to the merits, and the decree of dismissal is a bar to relief in this case, on the principle of res judicata. Appeal from the Supreme Court of the District of Columbia. A. L. Merriman, for appellant. JL. G. Sine and S. F. Thomas, for appellees. Waite, C. J. — Upon the case made by the bill the appel- lant is not entitled to recover. Paragraphs 9 and ten of the bill are as follows : "9. Complainant further states that he tiled his bill of com- 1880.] Pickens Co. v. Daniel. 39 Syllabup. plaint in said court against said defendant and said Kappell on or about the 19th day of July, 1870, praying that said sale should be set aside, and for other matters, which will more fully appear by reference to said bill, which bill was after- wards dismissed for want of prosecution upon the part of the attorney for complainant. " 10. Complainant further states that on or about the 16th day of October, 1871, he filed his second bill in said court, praj'ing for the same relief, and that the defendant plead thereto, which bill was also dismissed for the reason of the default of a replication to said plea, the attorney of the com- plainant having died during the pendency of said last-men- tioned bill." Here is an express admission of record that a bill for the same identical cause of action now sued on was dismissed for the reason that a plea which had been filed and not denied presented a good defense. What the plea was does not ap- pear, but as the bill was dismissed absolutely, the presumption is it went to the merits. A mere averment that there has been no adjudication upon the merits is not enough. To overcome the effect of the other allegations, the nature of the defense set up in the plea should have been stated, so that it could be seen that it did not present a bar to the action. Affirmed. County of Pickens v. Hichaed C. Daniel, and County op Greene v. Richard C. Daniel. 1. Bonds and coupons issued under the Alabama stiitute autlioi-izing; coun- ties to subsci'ibe to tiie stoclf of railroads, being signed by tlie jndge of probate of the county as the presiding officer of the Commissioners' Court, are themselves warrants on the treasurer, and hence need Jiot be audited, as required by section 820 of the Alabama code, before bring- ing suit on them. 40 Pickets Co. v. Daniel. [Oct. Tei-m, Opinion of the court. 2. As in tlie United States court a miiiiclanins to compel the levj' of a tax to pay a debt does not lie till the debt is reduced to iiidgment, such a suit, being part of the necessary machinery for enforcing the claim, will not be ousted simply taecanse State courts afford a remedy in a different way. 3. The fact that the bonds issued were not of the same denominalion as those specilied in the proposition of the railroad company for snb-crip- tion (required by the Alabama statute), does not avoid them. 4. Bonds issued under anlhority of a popular election are not avoided bj' the fact that the representations made in speeches during the canvass by interested parties turn o\it to be untrue. Eeeok to the TJ. S. Circuit Court for the Southern District of Alabama. John T. Morgan, for plaintiff in error. No counsel appeared for defendants in error. Waite, C. J. — The principal questions in these cases are: 1. "Whether the demurrer to the complaint should have been sustained because it was not averred specially that the coupons sued on were presented to the court of county commissioners for allowance before the suit was brought; and 2. Whether the bonds from which the coupons were cut were void because they were not of the same denomination as those specified in the proposition of the railroad company for subscription, submitted to and voted on by the county. As to the first question : By the code of Alabama, section 826 [907], it is provided that the court of county commission- ers must, in term-time, audit all claims against their respective counties ; that every claim as allowed must be registered in a book kept for that purpose, and that the judge of probate, who is made by law the principal judge of the court, (Code, section 739 [825],) shall give the claimant a warrant of the treasury for the amount allowed. This warrant it is made the duty of the county treasurer to pay on presentation, if he has funds in the treasury to meet it. (Code, section 3395 [920].) No 1880.] Pickens Co. v. Daniel. 41 Opinion of tlie court. claim can be passed upon or allowed by the court unless it is itemized and sworn to by the claimant, or some person in his behalf having knowledge of the facts. (Code, section 827.) All claims must be presented for allowance within twelve months after they accrue and become payable, or they will be barred, unless the claimant is a minor or lunatic. (Section 832 [909].) "No suit can be brought against a county until the claim or demand has been presented within the time lim- ited by section 832 [909] to the court of county commissioners, and either disallowed or reduced by such court, and refused by the party." (Code, section 2903 [2537].) A county in Alabama is a body corporate, capable of suing and being sued. (Code, section 815 [897].) In 8hinbone v. liandolph County, 56 Alabama, 183, which was a suit on cou- pons cut from raih'oad bonds, while it was held to have been definitely settled that an action at law did not lie against a county on a contract which had not been presented to the Com- missioners' Court and by that court disallowed in whole or in part, and that such presentment and disallowance must be aver- red in the complaint, it was nevertheless said (p. 185) : " It may be the claims on which this action is founded are not required to be presented to the Commissioners' Court for allowance. The statute under which the bonds were issued * * * may fix definitely their validity and amount. If that be true — and, as the case is not presented, it is not for us to determine whether it is or not — if the Commissioners' Court refuses to lev}' a tax for their payment, mandamus to compel them is the appropri- ate remedy for appellant." In Limestone County v. Bather, 48 Alabama, 433, it was expressly decided that bonds issued in payment of a subscription to a railroad company, signed by a majority of the court of county commissioners in the pres-, ence of the probate judge, who certified to that fact, and for the payment of which it was made the duty of the Commission- ers' Court to levy and assess a special tax each year, were not such claims as need be presented for allowance under this sec- tion of the code. In the opinion the court said (p. 446) : 42 Pickets Co. v. Daniel. [Oct. Term, ( ^ Opinida of the court. "The aet authorizing their issuance renders it wholly unnec- essary that they should be allowed by the court of county commissioners, and they are not required to be registered as claims of a different charactei", nor are they to be paid by warrants on the county treasurer, but altogether in a ditfereut way." The bonds in the present cases were issued under the act to authorize the several counties, towns, and cities of Alabama to subscribe to the stock of railroads, passed December 31, 1868. (Pamph. Acts 1868, 514.) This act provided (section 1) that railroad companies might in writing propose to a county that it subscribe for an amount of the capital stock of the company, to be named in the proposal, at a certain price per share, and pay for it in such bonds of the county " as should be set forth in said proposal." This proposal or application was (section 2) to be submitted to the Commissioners' Court of the county, and that court was authorized and required to order an elec- tion within sixty days to enable the qualitied electors of the county to determine whether the proposition should be accepted or rejected. At least (section 4) thirty days before the election the court was required to give notice of the " terms and amount of the proposed subscription." The returns of" the election were to be made to the judge of probate, (section 5,) whose duty it was to receive, count, estimate, and publish the vote. If a majority (section 6) was found to be in favor of the sub- scription, the proposition was to be deemed to have been ac- cepted, and the court of county commissioners was required to make the subscription voted in behalf of the county for the amount set forth in the proposal, and deliver to the railroad company, in payment of the subscription, bonds of the county, having not less than ten nor more than twenty years to run, with interest coupons attached for semi-annual interest, pay- able at such times and places as might be agreed upon between the company and the judge of probate. By sections 7 and 8 it was made the duty of the Commissioners' Court to levy and see to the collection of such tax, not exceeding one per cent. 1880.] Pickens Co. v. Daniel. 43 Opinion of the court. per anmmi on the taxable value of the property in the county as should be necessary to meet tlie interest as it fell due; and by section 10 the coupons past due were receivable at par in payment of this tax. The bonds and coupons in these cases were signed by the judge of probate of the county, as the presiding officer of the Commissioners' Court, and it seems to us that they are, in legal effect, themselves warrants on the treasurer, given by the judge of probate after an allowance by the court of the claim of the railroad company for the payment of the county subscription, in accordance with the terms of the accepted proposal. The claim was to all intents and purposes audited by the court when the bonds were issued. The validity and amount of the liability was then definitely iixed, and warrants on the treasury given, payable at a future day. , The treasurer could pay them when due, on presentation, without further action of the court, if he had funds in his haiids applicable to that purpose. In his hands they would be good vouchers for money disbursed from that fund. The provision that the coupons should be received in payment of taxes levied to meet them is entirely inconsistent with any idea of an unliquidated claim which required further auditing. In the State courts, under the rule as stated in Shinbone v. Eandolph Co., supra, and other cases, a mandamus would lie, without reducing the coupons to judgment, to compel the Com- missioners' Court to levy and collect the taxes necessary to pay what was due. The rule is different, however, in the courts of the United States; where such a writ can only be granted in aid of an existing jurisdiction. There a judgment at law on the coupons is necessary to support such a writ. The mandamus is in the nature of an execution to carry the judgment into effect. (Bath Co. v. Amy, 13 Wall., 251 ; Graham v. Norton, 15 Wall., 428.) A suit, therefore, to get judgment on the bonds or coupons is part of the necessary machinery' which the courts of the United States must use in enforcing the claim, and the jurisdiction of those courts is not 44 Pickens Co. v. Daniel. [Oct. Term, Opinion of the oonrt. to be ousted simply because in tbe courts of tbe State a remedy may be atibrded in another way. As to the second question: Section 11 of the act under which the bonds were issued provides " that the bonds * * * shall be of such denomination as the court of county commis- sioners * * * and said railroad company may agree upou, but not to be for less than one hundred dollars nor more than one thousand dollars." In the pi'oposition of the company to Green county, it was suggested that the bonds to be issued in payment of the sub- scription should be "in the sum of one and five hundred thou- sand dollars each." In the records of the court ordering the election, the proposition, as recorded, is that the bonds be "in the sum of one thousand five hundred dollars each." The final action of the court was to issue bonds. of five hundred dollars. In the Pickens-county case the proposition was that the bonds be in the sum of one thousand dollars each; but after the elec- tion, with the consent of the company, it was ordered by the court that one-half the amount should be in the sum of two hundred and fifty dollars, and the other half one thousand dollars each, and the bonds actually put out were of those denominations. As to the Greene-county case, it is apparent that there was a clerical mistake, either in the proposal or the record, as to the description of the bonds to be issued, and it is easy to see that the intention was to have bonds of a thousand dollars and five hundred dollars each; but in the Pickens-county case the proposition was distinctly that they should be for one thousand dollars. This, however, we consider unimportant; for by sec- tion 11 it was expressly provided that the bonds should be of such denomination as the Commissioners' Court and the com- pany should agree on. From this it is clear that the parties were not bound in this particular by the sums specified in the proposal. They were limited by the proposition as accepted in respect to the total amount of the issue, but not the denom- ination. The bonds as issued were of such denominations as 1880.] Brooks v. Eailway Co. 45 Opinion of the court. the law allowed the court and the company to agree on, and that, in our opinion, is enough. The only other assignments of error relate to the sufficiency of the second and third pleas. As to these, it is sufficient to say that we are entirely satisfied with the rulings below. Bonds issued under the authority of a popular election cannot be set aside simply because all that may have been said by interested parties in public speeches during the canvass which preceded the election does not turn out to be in every respect true. The judgment in each of the cases is affirmed. Affirmed. John W. Brooks and Alpheus IIardt v. The Burlington AND Southwestern Railway Company, The Farmers' Loan and Trust Company, et al. A petition for a rehearing in this coiirt can be filed only dnrino; tlie term at which the judgment was rendered. Appeal from the U. S. Circuit Court for the District of Iowa. Petition for rehearing. , for appellants. , for appellees. Waite, C. J. — A petition for rehearing after judgment, under the rule promulgated in Public Schoolsi). Walker, 9 Wall., 604, cannot be filed, except at the term in which the judgment was rendered. In Hudson v. Guestier, 7 Cr., 1, a motion was made at the February Term, 1812, for a rehearing in a case decided two years before, but the court said " the case could not be 46 ScHOONMAKER V. DAVIDSON. [Oct. Term, Statement of the case. reheard after the term in which it was decided." At the end of the teitn the parties are discharged from further attendance on all causes decided, and we have no power to bring them back. After that we can do no more than correct any clerical errors that maj- be found in the record of what we have done. In Brown v. Aspden, 14 How., 26, where the practice in respect to oi'ders for rearguments was tirst formally announced, the rule in this particular was not extended, for Chief Justice Taney was careful to say that the order for reargument might be made after judgment, provided- it was entered at the same term ; and in United States v. Knight, 1 Black, 490, the same limitation is maintained. Down to that time, such an order could be made only on the application of some member of the court who concurred in the judgment, and this continued until Public Schools v. Walker, supra, when leave was given counsel . to submit a petition to the same etiect. In all other respects the rule is now substantially the same as it was before this relaxation. Motion denied. James M. Schoonmaker, Samuel 8. Brown, and James H. Brown v. John N. Davidson, Joseph Davidson, T. "W". Watt, and R. Henderson, partners as E. Henderson & Co., FOR use of Robert Henderson and Samuel Watson, administrators of R. Henderson; and James M. Schoon- maker AND Samuel S. Brown v. John Gilmore. The jiii-isdiction of the United States coni-ts, as courts of aihnuMlty, over suits in personam growing" out of collisions, ii? not exclusive of the State courts. The conunon law lias always aiTorcled a remedy for such cases. Error to the Supreme Court for the Western District, of Pennsylvania. Motions to dismiss, with which are united motions to affirm. 1880.] Hayes v. Fisohek. 47 Statement of the case. Hill Burgioin, for plaintiffs in error. George Shiras, Jr., John Barton, and Alexander M. Watson, for motion. "Waite, 0. J. — The single question in each of these cases is whether the courts of the United States, as courts of admiralty, have exclusive jurisdiction of suits in personam^ growing out of Qpllisions between vessels while navigating the Ohio Kiver. This is a Federal question, and gives us jurisdiction ; but as it was decided substantially in The Moses Taylor, 4 Wall., 431; The Hine v. Trevor, Id., 571 ; The Belfast, 7 Wall., 642 ; Leon V. Garcelon, 11 Wall., 190; and Steamboat Co. v. Chase, 16 Wall., 531, we caimot consider it any longer open to argu- ment. The judiciary act of 1789, 1 Stat, 76, sec. 9, repro- duced in sec. 563, Rev. Stat., par. 8, which confers admiralty jurisdiction on the courts of the United States, expressly saves to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it. That there always has been a remedy at common law for damages by collision at sea, cannot be denied. The motion to dismiss is overruled, and that to alBrm granted. Affirmed. George Hates v. Valentine Fischer. 1. An order of a court imposing a fine for violation oi an intedocntory injunction, is interlocntoiy only. 2. Decrees in ctiancery causes are reviewable only by process of appeal, and not by writ of error. 3. Original proceedings for contempt are not reviewable. Error to the Circuit Court of the United States for the Southern District of New York. Motion to dismiss. 48 Hayes v. Fischer. [Oct. Term, Opinion of the court. /. H. Whitelegge, for plaintiff in error. Charles H. Blake, for defendant in error. "Waite, C. J. — Fischer, the defendant in error, brought a suit in equity in the Circuit Court of the United States for the Southern District of New York, to restrain Hayes, the plaintift" in error, from using a certain patented device. In this suit an interlocutory injunction was granted. Complaint having been made against Hayes for a violation of this injunction, proceed- ings were instituted against him for contempt, which resulted in an order by the court that he pay the clerk $1,389.99 as a tine, and that he stand committed until the order was obeyed. To reverse this order Hayes sued out this writ of error, which Fischer now moves to dismiss, on the ground that such -pro- ceedings in the Circuit Court cannot be reexamined here. If the order complained of is to be treated as part of what was done in the original suit, it caimot be brought here for I'eview by writ of error. Errors in equity suits can only be corrected in this court on appeal, and thataftera final decree. This order, if part of the proceedings in the suit, was interloc- ■ utory only. If the proceeding below, being for contempt, was independ- ent of and separate from the original suit, it cannot be re- examined here either by writ of error or appeal. This was decided more than fifty years ago in Kearney's case, 7 Wheat., 39, and the rule then established was followed as late as N"ew Orleans w. Steamship Co., 20 Wall, 392. It follows that we have no jurisdiction, and the motion to dismiss is consequently granted. Suit dismissed. 1880.] Railroad Co. v. Mississippi. 49 Syllabus. The IsTew Orleans, Mobile and Texas Railroad Co. v. The State of Mississippi. 1. Upon tlie aiithontj' of Colieiis t>. Vii-o;inia, 6 Wheat., 375: Osborne v. Bank of United States, 9 Wheat., 816; Mayor v. Cooper, 6 Wall., 250; Gold-washing and Water Co. v, Keyes, 96 U. S., 201, and Davis v. Ten- nessee, 100 U. S., 264, held to bo settled law : 1 . That while the eleventh amendment of the National Constitn- tion exchules the judicial power of the United States from snits, in law or eqnity, commenced or prosecnted against one of the United States by citizens of another State, snch power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State ; 2. That a case in law or equity consists of the right of one party as well as of the other, and may properly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either; 3. That cases arising under the laws of the United States are snch as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defense of the party, in n hole or in part, by whom they are asserted ; 4. That, except in the cases of which this court is given, by the Constitution, original iurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or botli, as the wisdom of Congress may direct; and lastlj', 3. That it is not sufficient to exclude the judicial power of the United States from a particular case that it involves questions which do not at all depend on the Constitution or laws of the Uni- ted States ; but when a question to which the judicial power of tlie Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give'the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be Involved in it. 2. These propositions, now too firmly established to admit of or to require further discussion, embrace the present case, and show that the infe- rior State coin-t erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely with- out jurisdiction to proceed after the presentation of the petition and bond for removal. 4 •50 Railroad Co. v. Mississippi. [Oct. Term, Opinion of the court. Error to the Supreme Court of the State of Mississippi. J. A. Campbell and Thomas L. Bayne, for plaintifl' in error. A. M. Clayton, for defendant in error. Harlan, J. — The plaintiff in error (defendant below) filed a petition in the State court of original jurisdiction for the re- moval of this suit into the Circuit Court of the United States for the Southern District of Mississippi. The petition was ac- companied by a bond, with good and sufficient surety, condi- tioned as required by the statute. The application for removal was denied, and the court, against the protest of the company, proceeded with the trial of the suit. A demurrer to the answer was sustained and judgment was entered in behalf of the State. Upon writ of error, sued out by the company, the Supreme C^ourt of Mississippi gave its sanction to the action of the ini'erior court upon the petition for removal, and affirmed in all respects its judgment upon the merits. The first assignment of error relates to the action of the State court in proceeding with the trial after the filing of the petition and bond for removal of the suit. If the suit was one which the company was entitled, under the statute, to have removed into the Circuit Court of the United States, then all that occurred in the State court, after the filing of the petition and bond, was in the face of the act of Congress. (Gordon r. Longest, 16 Pet., 104 ; Kanouse v. Martin, 15 How., 208 ; Dunn V. Insurance Co., 19 Wall, 223, 224.) Its duty, by the express command of the statute, was, the suit being removable, to accept the petition and bond and proceed no farther. Among the eases to which the National Constitution extends the judicial power of the United States, are those arising under the Constitution or laws of the Union. The first section of the act of March 3, 1875, determining the jurisdiction of Circuit Courts of the United States, and regulating the removal of causes from State courts, invests such Circuit Courts with 1880.] Railroad Co. v. Mississippi. 51 opinion of the court. original jurisdiction, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of f500, and "arising under the Constitution or laws of the United States." Under the second section of that act either party to a suit of the character just described may remove it into the Circuit Court of the United States for the proper district. The only inquiry, therefore, upon this branch of the case, is, whether the present suit, looking to its nature and object as disclosed by the record, is, in the sense of the Constitution, or within the meaning of the act of 1876, one " arising under the Constitution or laws of the United States." The action was commenced by a petition iiled, in behalf of the State, against the New Orleans, Mobile and Chattanooga Kailroad Company, (now known as the New Orleans, Mobile and Texas Eailroad Company,) a corporation created, in the year 1866, under the laws of Alabama, and, by an act of the Legislature of Mississippi passed February 7, 1867, recognized and approved as a body politic and corporate in that State, with authority to exercise therein the rights, powers, privileges, and franchises granted to it by the State of Alabama. The object of the action was to obtain a peremptory writ of mandamus, requiring the company to remove a stationary- bridge, which it had erected across Pearl Eiver, on the line between Louisiana and Mississippi, and construct and main- tain, in the central portion of the channel of that river, where the railroad crosses, a draw-bridge which, when open, will give a clear space, for the passage ol' vessels, of not less than sixty feet in width, and provide, after its construction, ibr the opening of the draw-bridge, withoutunnecessary delay, for any and all vessels seeking to pass through it. The claim of the State is : 1. That the construction and maintenance of a stationary bridge across Pearl Eiver is in violation of the company's charter, an obstruction to the navigation of the river, and a 52 Eailroad Co. o. Mississippi. [Oct. Term, Opinion of the court. public nuisance, resulting in great and irreparable damage to the people of Mississippi ; 2. That Pearl Kiver, by the common law and the law of nations, is a navigable river, in which the. tide ebbs and flows above said bridge, is navigable for steamboats for more than two hundred miles, and has been so navigated from time im- memorial ; that the river is the boundary between Mississippi and Louisiana, neither of those States having power to author- ize any obstruction to its free navigation; that by an act of Congress, entitled "An act to enable the people of the western part of Mississippi Territory to form a Constitution and State govenmient, and for the admission of said State into the Union on an equal footing with the original States," passed March 1, 1817, it was, among other things, provided " that the Missis- sippi River and the navigable rivers and waters leading into the same, or into the Gulf of Mexico, shall be common high- ways and forever free, as well to the inbabitants of said State as to other citizens of the United States"; that those provisions constituted a condition on which the State of Mississippi was admitted into the Union, and an engagement on the part of the United States that all the navigable I'ivers and waters emp- tying into the Gulf of Mexico should forever be free to all the inhabitants of the State of Mississippi; that Pearl River does lead and empty into the Gulf of Mexico; that the bridge is such an obstruction to the navigation of Pearl River as to cause permanent injury, as well to the State of Mississippi and its inhabitants as to the commerce of the United States and of .the world, and consequently was in violation of the law. The company I'esists the application for a mandamus upon :«everal grounds. It affirms that the bridge in question had been constructed .and IS maintained in accordance with its charter and conform- ably to the power and authority conferred by the States of JUabama, Mississippi, and Louisiana. It further avers, in its answer, that the railroad is a great jpublic highway .through those States, connecting them with other 1880.] Railroad Co. v. Mississippi. 53 Opiuion of the court. portions of the United States; that Congress, in view of the magnitude and cost of the work, and to expedite its constrnc- tion, by an act entitled "An act to establish and declare the railroad and bridges of the New Orleans, Mobile and Chatta- nooga Eailroad, as hereafter constructed, a post-road, and for otlier purposes," approved March 2, 1868, authorized and em- powered that corporation to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of said railroad, between New Orleans and Mobile, for the use of the company and the passage of its en- gines, cars, trains af cars, mails, passengers, and merchandise, and that the railroad and its bridges, when complete and in use, were to be held and deemed lawful structures and a post-road ; that the act of Congress required draw-bridges on the Pasoa- goula, the Bay of Eeloxi, the Bay of St. Louis, and the Great Rigolet, but none on Pearl River, power being reserved by Congress to amend or alter the act so as to prevent or remove material obstructions; that the company is authorized to main- tain the bridge in question under that act of Congress; that the same is a lawful structure and a post-road, which no court can, consistently with the act of Congress, overturn or abate as illegal, or as a nuisance. On the day succeeding that on which its answer was tiled, the company presented the petition for removal, to which reference has already been made, accompanied by a bond in proper form. That petition sets out the nature and object of the action, and claims that the right to erect and to maintain the present bridge for the conveyance of the cars, trains, pas- sengers, mails, and merchandise vested in the company, " on a contract with the State of Mississippi in the enactment afore- said ; that the State of Mississippi has no power to repudiate that contract or to impair its obligations ; that it is a vested right resting on a contract and supported and sustained by the Constitution of the United States, and that this cause is one arising under the Constitution of the United States." It then proceeds : 54 Kailroad Co. v. Mississippi. [Oct. Terra, Opinion of tlie conrl. "And 3'our petitioner further represents that the bridge afore- said, and its maintenance over the said river in the manner in which it exists, is authorized by the act of Congress approved March 2, 1868, which authorized and empowered the said company to construct, build, and maintain bridges over and across the navigable waters of the United States on the route of the said railroad between Mobile and New Orleans, and that when constructed they should be recognized as lawful structures and a post-road, and were declared to be such ; and the (Jongress reserved the power to alter the same when they become an obstruction to the navigable waters. " Your petitioner says that the railroad and bridges are and have been for three or more 3-ears a post-road, over which the mails of the United States have been carried and are now being carried, and, as the bridge referred to is a lawful structure imder the laws of the United States, this suit impugns the rights, privileges, and franchises granted by the act of Con- gress aforesaid of the 2d March, 1868." • From this analysis of the pleadings and of the petition for removal, it will be observed that the contention of the State rests, in part, upon the ground that the construction and main- tenance of the bridge in question is in violation of the condition on which Mississippi was admitted into the Union, and incon- sistent with the engagement, on the part of the United States, aa expressed in the act of March 1, 1817. On the other hand, the railroad company, in support of its right to construct and maintain the present bridge across Pearl River, invokes the protection of the act of Congress passed March 2, 1868. While the case raises questions which may involve the construction •of State enactments, and also, perhaps, general principles of ?aw not necessarily connected with any Federal question, the rsuit otherwise presents a real and substantial dispute or con- itroversy which depends altogether upon the construction and .efl'ect of an act of Congress. If it be insisted that the claim ■of the State, as set out in its petition, might possibly be de- -itermined by reference alone to State enactments, and without 1880.] Eaileoad Co. v. Mississippi. 55 Opinion of the court. any construction of the act of 1817, the provisions of which are invoked by the State in support of its application for man- damus, the important and, so far as the defense is concerned, the fundamental question would still remain, as to the con- struction of the act of Congress of March 2, 1868. That act, the company contends, protects the present stationary bridge against all interference whatever, upon the part either of the State or of the courts. In other words, should the court be of opinion that the law is for the State, if, the rights of parties were tested simplj' by the statutes of Alabama and Mississippi, it could not evade, but must meet and determine, the question, distinctly raised by the answer, as to the operation and ettect of the act of Congress of 1868. Is it not, then, plainly a case which, in the sense of the Con- stitution and of the statute of 1875, arises under the laws of the United States ? If regard be had to the former adjudications of this court, this question must be answered in the aflSrmative. It is settled law, as established by well-considered decisions of this court, pronounced upon full argument and after mature deliberation, notably in Cohens o. Virginia, 6 Wheat., 375 ; Osborne v. Bank of United States, 9 Wheat., 816; Mayor v. Cooper, 6 Wall., 250; Gold-washing and Water Co. v. Keyes, 96 U- 8., 201; and Davis v. Tennessee, 100 U. S., 264: That while the eleventh amendment of the National Consti- tution excludes the judicial power of the United States from suits, in law or equity, commenced or prosecuted against one of the United States by citizens of another State, such power is extended by the Constitution to suits commenced or prosecuted by a State against an individual, in which the latter demands nothing from the former, but only seeks the protection of the Constitution and laws of the United States against the claim or demand of the State ; . That a case in law or equity consists of the right of one party as well as of the other, and may properly be said to arise under the Constitution or a law of the United States 56 Eaileoad Co. v. Mississippi. [Oct. Term, Opinion of the court. whenever its correct decision depends on the construction of either; That cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defense of the party, in whole or in part, by whom they are asserted ; That, except in the cases of which this court is given, hy the. Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct; and lastly. That it is not sufficient to exclude the judicial power of the United States from a particular ease that it involves questions which do not at all depend, on the Constitution or laws of the United States; but when a question to which the judicial power of the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. These propositions, now too firmly established to admit of or to require further discussion, embrace the present case, and show that, whether we look to the Federal question raised by the State in its original petition, or to the Federal question raised by the company in its answer, the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to the Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely without jurisdiction to proceed after the presentation of the petition and bond for removal. In view of our decisions in Ins. Co. v. Dunn, 19 Wall., 214; in Eemoval Cases, 100 U. S., 475, and in other cases, it is scarcely necessary to say that the railroad company did not lose its right to raise this question of jurisdiction by contesting the case, upon the merits, in the State courts after its applica- 1880.] Eaileoad Co. v. Mississippi. 57 Dissenting opinion. tion for the removal of the suit had been disregarded. It re- mained in the State court under protest as to the right of that court to proceed further in the suit, and there is nothing in the record to show that it waived its right to have the case re- moved to the Federal court, and consented to proceed in the State court as if there had been no petition and bond for the removal. The judgment of the Supreme Court of Mississippi is there- fore reversed, and the cause remanded for such orders as may be consistent with this opinion, and with directions that the court of original jurisdiction be required to set aside all judg- ments and orders made in this suit after the presentation of the petition and bond for its removal into the Circuit Court of the United States, and proceed no further in the suit. [Mr. Justice Field did not hear the argument of this case, and therefore did not participate in its decision.] Miller, J. (dissenting.) — I dissent from the opinion of the court in this case. It is always a matter of delicacy when a cause of which a court has undoubted jurisdiction is transfer- red, by the election of one party to the suit, to another court of concurrent jurisdiction. It is especially so when the trans- fer is to be made from a State court to a Federal coiyt, with- out regard to the consent of the State court, and against the objection of the other party to the action. lu such a case the right of removal should be made very clear on the application for that purpose. And when the ap- plication has been refused, and the State courts, up to the highest to which it can be carried, have considered and decid- ed it upon its merits, the judgment rendered in that final de- cision should not be treated as a nullity, unless the case upon which the want of jurisdiction of these courts depends is made very plain indeed. I do not think such a case is presented here. The removal is based upon the second section of the act of 58 Eailroad Co. v. Mississippi. [Oct. Tei-m, Dissenting opinion. Congress of March 3, 1875, "to determine the jurisdiction of the Circuit Courts of the United States and to regulate the removal of causes from the State courts, and for other pur- poses." This enacts "that every suit of a civil nature, at law^ or in equity, now pending or hereafter brought in a State court, when the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and arising muler the Constitution' or laios of the United Stales, or treaties made or which shall be made under their authority," may be removed by either party on proper showing to the Circuit Court of the United States. The decision of the court is, that this is a suit arising under a law of the United- States, to wit, the act of Congress concerning the bridge of which plaintiff complains. I make no captious criticism on the fact that the opinion of the court is mainly directed to the constitutional provision extend- ing 'the judicial power of the United States to cases arising under that instrument and the laws and treaties made under its authority, while the word used in the statute is suits. The language of the Constitution may be broad enough to sustain a statute which authorizes the removal of a cause at any stage when a case is made, which case, taken as a whole, requires a judgment based upon the Constitution, a law, or a treaty of the United States. The act of 1875 is the first one which ever attempted to give a right of removal on such ground, and it lim^its that right to suits arising under the Constitution, laws, and treaties of the United States. It does not give the right of removal where the defense arises under such a law, unless the word suit nec- essarily includes the defeiise which may be made to the suit. The lexicons do not so define the word suit. Bouvier's Law Dictionary says that in the practice of the law it means " an action." Can a defense to an action be called the action? No more can a defense to a suit be called the suit. "Webster says suit is the act of suing; the process by which one gains an end or object; and as a word in the law he says it is "an attempt to gain an end by legal process " ; "a legal applica- 1880.] Bailroad Co. v. Mississippi. 59 Dissenting opinion. tion to a court for justice"; "an action or process for the recovery of a right of action." Does this mean the defense to an alleged right of action ? Can it be held to mean the attempt to defeat an action ? "Worcester defines it thus : " In the modern law, the prosecution of some claim or demand in a court of justice ; judicial prosecution;" and perhaps this is as good a definition of the word, as used in reference to legal proceedings, as anj' that can be framed, and it is peculiarly applicable to the use of the word in the act of 1875. In the case of "Weston v. The City of Charleston, 2 Peters, 449, Chief Justice Marshall, in delivering the opinion of the court, conceding the term to be a very comprehensive one, says it applies " to any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law affords him." Taking the idea of a "suit" as thus deiined, what is meant by the suit arising under a law of Congress ? The obvious answer seems to be, that the cause of action is founded on the act of Congress ; that ;the remedi/ sought is one c/iven by an act of Congress; that the relief which is prayed is a relief de- pendent on an act of Congress ; that the right to be enforced in the suit is a right which rests upon an act of Congress. In all this I see no place for holding that a defense to a suit not so founded on an act of Congress, or a plea which the defendant may interpose to any ordinary action, though that plea be founded on an act of Congress, is a suit arising mider an act of Congress. Looking also to the reasons which may have influenced Congress, it may well be supposed that while it intended to allow the removal of a suit into the courts of the United States, where the very foundation and support of it was a law of the United States, it did not intend to authorize a removal where the cause of action depended solely on the law of the State, and when the act of Congress only came in question incident- ally as part (it might be a very small part) of defendant's plea in avoidance. In support of this view, it may be added that 60 United States v. Hough. [Oct. Term, Opinion of the court. a defeudant in such ease is not without remedy in a Federal court; for if he has pleaded and relied on such defense in the State court, and that court has decided against him in regard to it, he can remove the case into this court by writ of error, and have the question he has thus raised decided here by the highest court of the United States. Reversed. The United States v. Ruel Hough, J. H. McDavitt, and Lorenzo S. Lake, executors of Charles B. Church, de- ceased, James E. Merriman, and John W. Waggbner. 1. A cliai-ge <);iveu by the court, to which no exceptions are shown to have been taken, cannot be reviewed hei-e. 2. Wlierc several distinct propositions are presented in an instruction, and any one of tliem is not law, it is not error to reject tlie wliole. 3. On Septeniljer 16, 1S64, a collector of internal revenue gave a bond, ■with sureties, conditioned to aecomit for stamps delivered and to be delivered under "the act of Congress to provide internal revenue for the support of the government, approved lyiarch 3, 1863." The said act of 1863 was repealed by the act approved June 30, 1864. The sureties are liable for the stamps delivered under the act of 1863 only, and not for any delivered under the act of 1864. 4. Section 951 of the Bevised Statutes has no application where a claim had been allowed by the proper accounting officer of the Treasuiy, and where the only question was as to which of two debts due to the government the claim should be applied as a credit. Error to the U. S. Circuit Court for the Western District of Tennessee. Edwin B. Smith, Assistant Attorney-General, for plaintiti' in error. P. Phillips and W. Halleit Phillips, for defendants in error. Miller, J. — ^Ruel Hough, being the collector of internal revenue for the first district of Tennessee, was furnished by 1880.] United States v. Hough. 61 Opinion of the court. the commissioner with a large amount of revenue stamps, and on the 16th day of September, 1864, he sjave bond to the United States, in which the other defendants above named were his sureties, in the sum of $25,000, conditioned for pay- ment of the vahie of all the stamps sold by him, and the return of those not sold on demand. The defendants were sued on this bond. Treasury transcripts were offered in evidence by the plaintiffs showing a statement of said Hough's account in reference to revenue stamps, dated September 30, 1870, by which he was found to be indebted to the United States on that account in the sum of $6,093.78. Evidence was offered by the defendants tending to show a balance of $6,434.75 due from the Treasury Department to Hough for salary, commis- sions, and expenses as disbursing agent, which Hough had, before suit was brought, instructed the accounting officer to convey to the credit of this stamp account, and which was sufficient to satisfy it. Evidence was also offered tending to show a sum due from Hough to the United States for money received as collector of internal revenue, much larger than the amount of his credit for salary and commissions as disbursing agent. The case was tried by a jury, and the main assignments of error relate to the charge of the court to the jury, and the I'efusal of the court to charge as requested by counsel for the United States. With reference to the charge given by the court, while it is found in the bill of exceptions, there is clearly no exception shown to that charge. The bill, after reciting the charge, is immediately followed by the statement that "the district attor- ney moved the court for a new trial, which motion was over- ruled by the court, to all which the district attorney excepted, and tenders this his bill of exceptions," &c. No mention is made of any exception or any objection to the charge of the court, and none can be considered here. Before this, however, the district attorney had asked of the court to give a charge, consisting of four propositions, which 62 United States v. Hough. [Oct. Term, Opinion of the court. are set out, and " which instructions," says the bill, " the court refused to give, and the district attorney excepted." According to the well-settled rule of this court, if either of these four propositions was erroneous, or, in other words, if all the charge thus asked was not sound law, the court did right in refusing, the prayer which presented them as a whole. (See Johnson v. Jones, 1 Black, 120 ; Harvey v. Tyler, 2 Wall., 338 ; Lincoln v. Claflin, 7 Wall., 139 ; Brown v. Taylor, 93 U. S. R., 54.) One of the propositions so asked was, that, under the bond sued on in this case, the sureties of Hough are liable for all amounts of stamps which the proof shows came to his hand as stamp agent, both before and since the execution of the bond, unless the same had been properly accounted for. It is true that one condition of the bond is to make a faithful return, whenever so required, of the moneys received by him for such stamped vellum, parchment, or paper, and adhesive stapips, as have been or may hereafter be delivered to him ; but it is also a part of the condition of the bond describing the stamps for which they shall be liable, that they were stamps delivered and to be delivered under "the act of Congress to provide internal revenue for the support of the government, approved March 3, 1863," pursuantto the sixteenth section of that act. Now, that act, and especially the sixteenth section of it, was repealed by the act of June 30, 1864, which enacts its own provisions on this subject. The act of March 3, 1863, was, therefore, no longer in existence when the bond was taken which binds the sureties for stamps received under its provis- ions, and, as the obligation of sureties cannot be extended beyond what they have in terms assumed, they cannot be held liable for stamps furnished under the act of 1864. The date of the bond, be it remembered, was September 16, 1864. The act of 1863 had then been repealed more than two months. Stamps undoubtedly had been delivered, before the repeal of the act of 1863, to Hough which had not been accounted for when the bond was given, and it was competent for the gov- 1880.] United States ?,-. Hough. 63 Opinion of the court. ernmeut to take a bond covering the stamps advanced to him under that act. It was also competent for the sureties to limit their liabilities to stamps received under the act of 1863, and the record shows that the}' did. The court below told the jury that the sureties were only liable for stamps received by Hough prior to the 30th of June, 1864, the date of the repealing act, and to this no exception was taken. As we think he was right in this, the charge asked by the district attorney was properly rejected. The diiKcalty seems to have grown out of the use of a form of bond framed under a statute which had been repealed. Objection is made to the admission of two pieces of evidence designed to show that Hough had applied the credit due him as disbursing agent to the extinguishment of the balance due from him as stamp agent. The objection is not made to the pertinency of the evidence, but to the fact that it was not pre- sented for allowance as a credit to the proper accounting offi- cer of the Treasury and rejected, as provided in section 951, Kevised Statutes. The answer to this is, that the claim itself had been allowed by the proper accounting officer of the Treasury, and the point in issue was as to the application of the sum so allowed to one of two distinct claims of the government against him. To such a case the section has no application. Though there may have been many errors committed in the trial of this case, there are none so presented by the record that we can correct them, and the judgoient is accordingly affirmed. Affirmed. 64 Ball v. BArMGARDEsr. [Oct. Term, Opinion of the court. HosEA Ball and Makgaket Haughery v. Baumgarden & Langles. The reissue No. 4,02G of the piitcnt granted to Hosea Ball on September 25, 1856, for a new and nseful invention in ovens, is void, becanse the reissno appears on its face to be for a diffei'ent invention from that described in the original patent. Appeal from the U. 8. Circuit Court for the District of Lou- isiana. Durant ^ Horner, for appellants. Commy Robinson and Leigh Robinson, for appellees. Strong, J. — The bill charges an infringement of reissued letters-patent for an alleged new and useful improvement in ovens, granted to Hosea Ball on the 14th day of June, 1870. The original patent was granted to Ball on the 25th day of Sep- tember, 1856, for a period of fourteen years from that date. On the 12th of October, 1869, this original was surrendered, and a reissue was granted. A second reissue was granted on the 14th of June, 1870, numbered 4,026. Subsequently an extension of the patent was granted for seven years from Sep- tember 23, 1870. It is upon the second reissue (No. 4,026), thus extended, that this suit is founded. The charge of the bill is, that the defendants have constructed such an oven as that patented, with inteut to use it. The Circuit Court dis- missed the bill, and from that decree the complainants have appealed. The tirst question now to be considered under the pleadings and evidence, is whether the reissued patent (No. 4,026) is valid. One of the defenses set up by the answer is, that the reissue is not for the same invention as that described, claimed, and shown in the original letters, and it is averred that the sur- render of those letters and the first reissue were for the pur- pose of introducing new matter not shown, suggested, or indi- 1880.] Ball v. Baxjmgarden. 65 Opinion of the court. eated in the specification, drawings, or model filed with the original application, and also for the purpose of obtaining a claim broader than the invention, and broad enough to cover the invention of subsequent inventors and patentees. If these averments of the answer are well founded, the reissue is void, and it will be unnecessary to consider the other defenses set up When the reissues of 1869 and 1870 were granted, the Cora missioner of Patents had authority, under the acts of Congress, to grant reissues only in certain specified cases. These' were, whenever a patent was inoperative or invalid by reason of a defective or insufficient specification, or by reason of the pat- entee claiming as his own invention or discovery more than he had a right to claim as new, if the error had arisen by uiad- vertence, accident, or mistake, without any fraudulent or de- ceptive intention. The Commissioner was invested with author- ity to determine whether the surrendered patent .was valid by reason of a defective or insufficient specification, or because the patentee had claimed more than he had a right to claim as new ; and if he found such to be the case, and found also that the error had been due to inadvertence, accident, or mistake, with- out fraud, his decision was conclusive, and not subject to review by the courts. But the law did not confer upon him jurisdic- tion to grant a reissue embracing new matter, or a broader invention than what was revealed by his original speciticatiou, or drawings, or models, except in some cases where there was neither model nor drawing. A reissue for anything m.ore is, therefore, inoperative and void. Accordingly this court has repeatedly held, that if, on comparing a reissue with its 'original, the former appears on its face to be for a different invention, from that described or indicated in the latter, it must be de- clared invalid. (Seymour v. Osborn, 11 Wall., 544 ; Russell v. Dodge, 93 U. S., 461.) In the original patent, Ball described his invention as con- sisting of an oven with a series of bread-receivers swung between the ends of a rod hung in an interior perforated chamber, and capable of rotation on a horizontal shaft; an 5 66 Ball v. Baumgarden. [Oct. Term, Opinion of the court. arrangement being provided for the self-delivery of the bread from the front of the oven, as afterwards set forth. Having thus described it generally, he proceeded to set forth in detail its construction, including tlie mode in which it was heated. This was done in part by explanation of his drawing.^. A fire- chamber was represented below the oven, with an ash-pit beneath. Above the lire-chamber, but beneath the oven, a space through which the products of combustion passed on their way to the chimney, commuuicating by openings with vertical side and back flues. These flues were exterior to the oven proper, but they communicated with the interior cham- ber or oven by perforations or openings. In this interior chamber the bread was placed on platforms hung on a revolv- ing rod, and a mode of discharge and tilling was described. The specification then stated that, "owing to the perforated sides and back of the interior chamber, all parts of it receive the full heat of the oven, suitable dampers regulating the course of the products of combustion to the chimney." Such was the description so far as it is necessary to state it. The single claim of the patent was as follows: "What I claim and desire to secure by letters-patent is the perforated inferior chamber, in combination with the rotary wheel and the swing- ing platform thereon, self - discharging, substantially as set forth." It is evident from this description and from the attendant drawings that the interior chamber or oven was so constructed that what are called "the products of combustion" did not, and could not, pass directly into it. The chamber was heated by those products' passing through the exterior flues on the sides and back. There was no direct communication between the space above the tire-chamber and the interior of the oven, and no communication at all except indirectly through the perforations in the vertical flues on the sides and back of the oven. The interior chamber was heated for baking by heat radiating from its walls, except the comparatively small .quantify which was permitted to enter through the small per- 1880.] Ball v. Baumgakden. 67 Opinion of the court. forations in the flues. It is impossible to detect in tlie specifi- cation or drawing.-? any intention or hint even of conducting the products of combustion (whatever may have been meant by the phrase, whether heat, gases, or smoke, or all of them) directly into the baking-chamber. Not a single ray of heat could enter the chamber, radiated from the fire. No passage was provided through the bottom, and even the perforations in the sides must have been ineffectual to divert the ascending heat from its upward course through the flues. If, now, we turn to the reissues of 1869 and 1870, it cannot be doubted that, while they claim what was claimed in the original, they claim much more. They claim an entirely dif- ferent mode of heating the chamber, necessitating a radical difl:ereuce in the construction of the oven. The specification of the reissue of 1870, as well as that of 1809, instead of representing the space above the fire-chamber as communicating with the interior chamber only indirectly through perforations in the vertical and back flues, described it as communicating "directly or indirectly in any proper manner with the chamber in which the broad-receiving shelves or platforms are revolved." The patentee says " the flues and openings to permit the passage or circulation of gases into or through the bread-chamber may be located and arranged in any effective manner." Thus the flues and openings maj' be made through the bottom of the oven and immediately over the fire, admitting direct radiation from the fire -chamber. And he claims "one or more swinging bread-holders, sus- pended from the arms or end plates of a rotating rod, in com- bination with a furnace so arranged and connected that the products of combustion will pass into or through the chamber within which the bread-holders move." Thus his reissued patent has become one for an oven in which there may be no diaphragm or partition separating the compartment in which the dough is placed from the ,furhace by which it is heated, and which may be directly under it. Thus the oven is made a part of the passage-way for the products of combustion- from 68 GuAHAM V. Eailkoad Go. [Oct. Term> Syllabus. the fire-chamber to the chimney. That this is a very ditFereut invention from anything exhibited in the original speciiicatiou and drawings, is too obvious to need further ehicidation. "We cannot doubt that the purpose of the reissues was not to cure defects in the original specification or any deficiency in describ- ing the invention, but to cover other devices which the pat-: entee had not in mind when he first applied for his patent, and which may have subsequently come to his knowledge. Thirteen years after the patent was granted had elapsed before he applied for any reissue. However this may be, the reissued letters are so clearly for a different invention from that for which the patentee first applied, containing new matter, and so much broader, that we are constrained to hold that the Commissioner of Patents had no authority to grant them, and consequently that they are void. The complainants' bill was, therefore, rightly dismissed, and the decree of the court below is affirmed with costs. Affikmed. Laurence G. Graham and Donald D. Scott v. The La Crosse AND Milwaukee E. R. Co., The Milwaukee and St. Paul E. E. Co., James Luddington, Ephraim Mariner, James Kneeland, administrator of the estate of Mosiis Knee- land, deceased, Sarah 0. Chandler, Ellen C. Sexton, Frances Elint, and Ad. B. Kneeland. 1. A corporation, when but little in debt, oonveys ci.Ttain realty to a party, who conveys it to the president and two directors of the corporalion. Tliree year.? afterwards snbsequent creditors obtain judgment against the corporation, and tlien attacli tlieabove. conveyances on tlie gronnd of fraud. Tlie corporation, itself nevei- attacked the transaction, bnt, on the contrary, confirmed it. Siicli siibsetinent creditors cannot ques- tion tlie transaction. 2. Where a debtor does not attack a transaction alleged to be fraiidnlent as to him, his subsequent creditors or purchasers Iiiive not snfBcieut 1880.] Graham v. Railhoad Co. 69 Opinion of the court. privitj- to attack it. The incrn naUoil right to sue, uiiaecompaiiied by a convej'ance of tlio property itself, i- not assignable. 3. The above principles applj- as well to corporation tlebtors as to indi- vidnal debtors. Appeal from the U. S. Circuit Court for tiie Eastern District of Wisconsin. . Matt H. Carpenter and Neiuton S. Murphey, for appellants. D. Mariner and John W. Cary, for the different appellees. Bradley', J. — In September, 1855, the La Crosse and Mil- waukee Railroad Company, not being at that time, so far as appears, indebted in any considerable amount, sold certain real estate in the city of Milwaukee, not then wanted for railroad purposes, to Charles D. Nash for the sum of $25,000. The ofHcers of the company who took a leading part in negotiating the sale are charged to have been interested in the purchase, and to have furnished Nash the means for etfecting it. At all events, shortly after it was made Nash conveyed the property for the original consideration to Moses Kiieeland, one of the officers referred to, and Kneelaiid, retaining one-third part, subsequently conveyed the other two-third parts to Lndding- ton andKilbourn, they all being directors of the company and members of the executive committee. The company itself never questioned the fairness of this transaction ; on the con- trary, the sale was subsequently (in March, 1858) expressly contirmed by the board of directors, and a further quitclaim deed executed by the company in confirmation thereof. In September and November, 1858, the appellants, Graham and Scott, recovered two judgments against the conipanj* for in- debtedness on contract, arising after the sale of the lands, and issued executions thereon, under which levies were made on said lands, as lands of the company. In January, 1860, the appellants, having sued these judgments in the United States court, recovered a second judgment for upwards of forty thou- sand dollars, issued execution thereon, and made another levy 70 Graham v. Eailroad Co. ^ [Oct. Term, Opinion of tlio court. on the lands. Being unwilling to attempt a sale under their said execution in consequence of the deeds for the lands being recorded, the appellants, in June, 1860, tiled the bill in this case in the Circuit Court of the United States for the Eastern District of Wisconsin, against Kneeland, Kilbourn, Ludding- ton, and the railroad company, setting forth their said judg- ments, executions, and levies; stating the fact of the said sale to Nash and his conveyance to Kneeland, and the latter's con-' veyance to the other parties; alleging that the transaction was a fraud against the corporation and its creditors, and com- plaining that the said conveyances of the lands were a cloud upon their right to sell the lands under execution, and an im- pediment in the way of the execution of their writ of fieri facias; and prayed that the lands might be decreed subject to the lien of their judgment; that they might be decreed to be authorized to sell the same, or so much as might be necessary for the purpose of satisfying their judgment; and that Knee- liand, Kilbourn, and Luddingtou might join in the convey- ance, and might be enjoined from claiming the land ; and that the conveyances to them might be declared null and void. The bill, amongst other things, averred that the lands were sold to Nash for much less than their real value; but it con- tained no allegation that the company w-as insolvent, or that it had not other assets available under an execution ; nor was any ot}er made to repay the consideration which the purchaser had given for the lands. To this bill the defendants severally filed answers, denying that the lands were worth more than $25,000 at the time of sale; averring that the sale was made in good faith and with the company's concurrence, and setting forth in detail many cir- cumstances tending to show that the title was involved and embarrassed ; that they required large outlays of money to render tiiem available ; that the company had offered them for sale in the market, and wa% uuable to get from any other per- son the price paid for them by Nash ; that although Nash was requested to purchase the lands by Kneeland, and was aided 1880.] Graham v. Railroad Co. 71 Opinioa of the court. by him in paying therefor, yet ISTash had, tlie option to keep them; but after making the purchase, and inquiring into the title and situation of the lands, he asked. to be relieved fi'om the purchase, and thereupon Kneeland, Kilbourn, andLudding- ton took them off his hands. The parties went into pi'oofs, and it does appear that the company had, for months prior to the sale, been endeavoring to dispose of the lands, and could get no purchaser at the price offered by Nash ; and the leading statements of the answer as to the" title and situation of the lands were veriiied. It also appeared that the railroad company never objected to the sale, but that it was expressly confirmed in March, 1858, by a reso- lution of the board of directors, as before noticed. Various transactions subsequently took place, by which other parties became interested in the lands and in the affairs and property of the railroad company, which are fully developed in the supplemental proceedings and proofs ; but it is unnec- essary to notice them further. The foregoing statement ex- hibits the leading features of the case as presented for our consideration. The main question is, whether the sale to Nash, made be- fore the railroad company became indebted to the appellants, and when, for all that appears, it was perfectly solvent, even though made for the use and benefit of the oiEcers referred to,- can be set aside at the instance of the complainants, for thc' purpose of subjecting the lands to sale under their execution. And this question, we think, must be answered in the nega- tive. It is a well-settled nale of law, that if an individual, being, solvent at the time, without any actual intent to defraud cred- itors, dispose of property for an inadequate consideration, or even make a voluntary conveyance of it, subsequent creditors- cannot question the transaction. They are not injured. They gave credit to the debtor in the status which he had after the^ voluntary conveyance was made. The authorities on this subject are fully collected in the; 72 Graham v. Eailroad Co. [Oct. Tei-ni, opinion of the court. notes to Sexton v. Wheaton, 1 Am. Lead. Cas., 1, and in the opinion of Chief .Justice Marshall in that case, and the general doctrine is affirmed 411 the case of Mattingly v. Nye, 8 Wall., 370. It is true that if a debtor dispose of his property with in- tent to defraud those to whom he expects to become imme- diately or soon indebted, this may be a fraud against them which they may have a right to unravel. But that is a special case, to which the present bears no resemblance. It is not pretended that the railroad company disposed of the' property in question for the purpose of defrauding creditors, much less for the purpose of defrauding those who afterwards in due course of business might become its creditors. But it is contended that this is a case in which the debtor corporation was defrauded of its property, and that as the company had a right of proceeding for its recovery, any of its judgment and execution creditors have an equal right; that it is a property right, and one that inures to the benefit of creditors. Conceding that creditors who were such when the fraudu- lent procurement of the debtor's property occurred — and cases to that effect have been cited — ^the question still remains, whether, the debtor being unwilling to disturb the transaction, subsequent creditors have such an interest that they can reach the property for the satisfaction of their debts. We doubt whether any case going as far as this can be found. ISTo such case has been cited in the argument. Dicta of judges to that effect may undoubtedly be produced, but they are not support- ed by the facts of the cases under consideration. It seems clear that subsequent creditors have no better right than subsequent purchasers to question a previous transaction in which the debtor's property was obtained from him by fraud which he has acquiesced in, and which he has manifested no desire to disturb. Yet, in such a case, subsequent purchasers have no such rigiit. In the case of French v. Shotwell, 5 Johns. Chan., 555, Chancellor Kent decided, upon full con- 1880.] Graham v. Eailroad Co. 73 Opinion of the coart. sicleration, that when a party to a judgment, entered upon a warrant of attorney, voluntarily waives his defense or remedy on the ground of fraud or usury, and releases the other party, a subsequent purchaser under him, with notice of the judg- ment, will not be allowed to impeach it, or to investigate the merits of the original transaction between the original parties; and he dismissed a bill filed by the subsequent purchaser for relief in such a case. The chancellor said : " If the party himself, who is the victim of fraud or usury, chooses to waive his remedy and release the party, it does not belong to a sub- sequent purchaser under him to recall and assume the remedy for him. If a judgment was fraudulent by collusion between the parties to it, on purpose to defraud a subsequent purchaser, the case would present a very diiferont question. But if the judgment was fraudulent only betv/een the parties, it is for the injured party alone to apply the remedy.' If he chooses to waive it and discharge the party, it cannot consist in justice or sound policy that a subsequent voluntary purchaser, know- ing of that judgment, should be competent to investigate the merits of the original transaction as between the original par- ties. Quisque potest renunciare jiiri pro se introducio. * * * It is stated to have been a principle of the common law, that a fraud could only be avoided by him who had a prior in- terest in the estate affected by the fraud, and not by him who subsequently to the fraud acquired an interest in the estate. (Cro. Eliz., 445 ; 3 Co., 83rt.)" This decision of Chancellor Kent was afterwards nearly unanimously affirmed by the Court ,of Errors of New York. (20 Johns., 668.) When the question of the right of a creditor to set aside a conveyance procured from the debtor by fraud first came before the courts in England, it was held that the debtor's own right was merely the right to file a bill in equity against the fraudulent grantee adversely; and if he did not see tit' to take such a proceeding, his creditor had no such privity with the transaction as to enable him to obtain relief, even though the 74 G-RAHAM V. Railroad Co. [Oct. Terra, Opinion of the ootirt, debtor should assign his supposed right to the creditor ; that the transaction savored of champerty, and was opposed, at least, to tii'e spirit of the law against champerty and mainte- nance. This was the substance of the decision by the Court of Exchequer in Prosser v. Edmonds, in 1835. (1 Young & Coll. Exch. Eq., 481.) Lord Abinger treated the case as a new one, and at the close of the argument remarked that his impression was, that such a claim could not be sustained in equity unless the party who made the assignment joined in the prayer to set it aside. He afterwards gave a deliberate opinion upon the point. In that case an executor and trustee had fraudulently procured an assignment of his brother-in-law's interest in the estate, knowing its value, wliich was unknown to the assignor. A subsequent creditor of the assignor, to whom he assigned his whole interest in the estate, filed a bill to set aside the assignment to the trustee. Lord Abinger distinguished the case from that of an assignment of a chose in action, as a note not negotiable, or a bond, or mortgage, or equity of redemp- tion, where possession of the thing assigned is delivered to the assignee; and treated it as an assignment of a mere naked right to file a bill in equity, in which the last assignee pur- chased nothing but a hostile right to bring parties into a court of equity as defendants to a b'lU filed for the purpose of obtain- ing the fruits of his purchase. ""What is this," saj's the Lord Chief Baron, "but the purchase of a mere right to recover? It is a rule, not of our law alone, but of that of all countries, (Voet ad Pandect, Lib. 41, tit. 1, sec. 38,) that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is nowhere tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce. There are many cases where the acts charged may not amount prop- erly to maintenance or champerty, yet of which, upon general principles, and by analogy to such acts, a court of equity will 1880.] Graham v. Railroad Co. ,75 Opinion of the court. discourage the practice." " Robert Todd, when h(j assigned, was in possession of nothing but a mere naked right. He could obtain nothing without tiling a bill. No case can be found which decides that such a right can be the subject of assignment, either at law or in equity." These remarks are very broad, and would apply to the case of existing as well as subsequent creditors; though the case itself was that of a sub- sequent ci'editor. It forms the subject of a section in Story's Commentaries on Equity, (sec. 1040/i,) where, in a note, Lord Abinger's opinion is extensively quoted ; and it has been fol- lowed by other very respectable authorities; and, as applied to subsequent creditors at least, we think that the reasoning is sound. The principle established in Prosser v. Edmonds has been adopted by the Supreme Court of Wisconsin, in which State the lands in question are situated. In Crocker v. Bellangee ei al., 6 Wis., 645, decided in 1858, it was held that a deed obtained from the grantor through fraudulent representations made by the grantee, is not void, but voidable only, at the election of the grantor; and that the convej'ance of the same land by tbe grantor to another person is not the exercise of such election, and does not avoid the former deed; that, in order to avoid such former deed, some proceeding must be had by the grantor to which the grantee is a party ; and that a subsequent purchaser from tbe grantor cannot set up the alleged fraud of the first grantee to defeat his title — the court holding, that the right of a vendor to avoid a sale or deed on the ground of fraud practiced by the vendee, is not a right or interest capable of sale and transfer, so as to enable a subse- quent vendee of such right, for such canse, to attack the title of the first vendee; that it is a mere personal right, incapable of sale or transfer. In Milwaukee and Minnesota R. R. Co. v. Milwaukee and Western R. R. Co., 20 Wis., 174, the latter company had cov- enanted to pay a certain portion of an incumbrance on railroad property afterwards purchased by the complainant company 76 Gkaham v. Railroad Co. [Oct. Term, Opinion of tlie court. under a subsequent mortgage. A release of the obligation had been fraudulently, as alleged, procured from the original mort- gagor company owning the road. The complainant purchased under a mortgage which conve3'ed " all causes of action, de- mands^and choses in action, of whatever nature," of the mort- gagors, and claimed to have purchased the right to set aside the alleged fraudulent release, and filed a bill for that purpose ; but the bill was dismissed on the ground that such a right of action could not be thus assigned. The court say: "Admitting that the facts alleged present a case which would entitle the La Crosse and Milwaukee Company [the mortgagor] to have the release set aside on account of these acts of fraudulent con- cealm.ent by one of its directors of his interest in the defend- ant company, and assuming that the further fact appears that this right of action has been assigned by the La Crosse and' Milwaukee Company to the plaintiff, the question would then arise whether the release could be avoided on the application of such plaintiif, the La Crosse and Milwaukee Company making no complaint of the fraud whatever. In other words, is this mere right to litigate the question, and to set aside the deed of release on account of fraud practiced upon the assignor, a subject of assignment and transfer, and will a court of equity allow the assignee to stand in the shoes of the assignor in respect to the remedies?" And then, referring to the previous case of Crocker v. Bellangee, and to Prosser v. Edmonds, the court expresses its approbation of those decisions, and adds : "A reference to these authorities is all which probably need Ire said at this time in regard to the allegations above cited, [refer- ring to the contention of counsel,] and upon the point whether the plaintiff company could avoid the release for the alleged fraudulent act of concealment, even if this right of action had been assigned to it by the La Crosse and Milwaukee Company." It seems to us that those cases, which, so far as it appears, declare the settled law of "Wisconsin, are conclusive of the present case. 1880.] Graham v. Eailroad Co. 77 Opinion of the court. It is contended on the part of the appellants that the case of Prosser v. Edmonds has been overruled by the subsequent cases of Dickinson c. Burrill, iXi. R. Eq., 337, and McMahon V. Allen, 35 N. Y., 405. We have examined these cases, and others which are supposed to be in conflict with Prosser v. Ed- monds. In Dickinson v. Burrill the master of the rolls, Lord liomillj, expressly disavows any intention to overrule the for- mer ease. He says : " The demurrer is mainly supported on the case of Prosser v. Edmonds, which was decided, after long deliberation, by Lord Abinger; but I am of opinion that the case before me does not fall within the rule established by that decision." The case then before the court was, that a con- veyance of an interest in an estate had been fraudulently pro- cured from Dickinson, by his own solicitor, to a third party, for the solicitor's beneiit, and for a very inadequate consideration. Dickinson, ascertaining the fraud, by a conversance which re- cited the facts, and that he disputed the validity of the first conveyance, transferred all his share in the estate to trustees for the benefit of himself and his children. The trustees tiled a bill to set aside the fraudulent conveyance upon repajmient of the consideration-money and interest, and to establish the trust. The master of the i-olls sustained the bill, observing: "The distinction is this: if James Dickinson had sold or con- veyed the right to sue to set aside the indenture of December, 1860, without conveying the property, or his interest in the propert}-, which is the subject of that indenture, that would not have enabled the grantee, A B, to maintain this bill ; but if A B had bought the whole interest of James Dickinson in the property, then it would. The right of suit is a right inci- dental to the property conveyed." "I think that the distinc- tion between the conveyance of the property itself and the conveyance of a mere right to sue, or what in substance is a right to sue, is taken by Lord Abinger in the case of Prosser V. Edmonds. The distinction is also taken in Cockell v. Tay- lor, 15 Beav., 103, and in Anderson v. Radcliffe, Ellis, B. & 78 Graham v. Railroad Co. [Oct. Term, Opinion of tiie court. B., 806, and has been adopted and approved in many other cases; and it is, I think, founded in reason and good sense." Surely there is here no overruling of Prosser v. Edmonds, even if such overruling could avail asrainst the Wisconsin de- cisions. It leaves that case in full force as to assignments of the mere right to sue. In the case before us there is not even that. The railroad corporation acquiesced in the sale and confirmed it. The conveyance, whicVi, perhaps, might have been set aside had the company seen lit, became absolute as between the parties and carried the title. It is as valid be- tween the parties as if the corporation had conveyed to a stranger. The appellant then becomes a creditor, and after- wards obtains judgment, and simply makes a levy ; and then comes into court and asks its. aid to remove a cloud from his title. What title ? Has he acquired any title ? Was there any title for him to acquire ? There had been a right to file a bill in equity, and that I'ight had been remitted by the com- pany's acquiescence in the sale — probably for the reason that it obtained all that the property was worth at the time. The contrary, at least, is not established. And if it were estab- lished, it would only make out a case of voluntary conveyance as against a subsequent creditor, which has already been con- sidered. We think that there is nothing in the case of Dick- inson V. Burrill to overrule the eSect of Prosser v. Edmonds, so far as the present case is concerned. Then, as to the case of McMahon v. Allen, 35 K Y., 403, decided in 1866. One Harrison, in March, 1852, being in debt, was induced by the fraudulent contrivance of his agent and attorney, and to the prejudice of his creditors, to convey to said agent for a very inadequate consideration his interest in his mother's estate and in certain other property, he being ignorant of the fraud practiced upon him. In August, 1852, Harrison made a general assignment for the benefit of his creditors of all his property and rights of action, with full power to sue for and collect the same. The assignee filed a bill to set aside the conveyance to the agent. The bill was 1880.] Graham v. Eailroap Co. . 79 Opinion of the court. sustiiined. The court, Mr. Justice Hunt delivering the opinion, relied on Dickinson v. Burrill, saying: " In the recent case of Dickinson v. Burrill, this precise question was presented," and, after quoting largely from the opinion in that case, added : "This was a well-considered case, is of high authority, and, in ni}' opinion, is an accurate exposition of the law. I think it should control the present case." In the New York case, it is true, there was no express repudiation of the fraudulent conveyance, as in Dickinson v. Burrill, but there was a con- veyance of the estate to the assignee, with a power to sue for the beneiit of creditors ; and those creditors had been directly defrauded. Without further comment, it seems to us clear that McMahou v. Allen cannot control the present case. The principle that subsequent creditors cannot question a voluntary or fraudulent disposition of property by their debtor, not intended as a fraud against them, is especially applicable in cases of constructive fraud, like that charged in the present bill. Suppose it be'true that the purchase of the lands in question by, or for the benefit of, officers of the company actively con- cerned in the transaction, could be set aside at the instance of the company as a constructive fraud ; yet if there was no act- ual fraud, if the company received full consideration for the propertj- sold, how can it be said that subsequent creditors of the company are injured ? In the present case, we are satisfied from the evidence that the property was sold for its fair value at the time, and that no actual loss accrued to the railroad company's estate. It would be unjust and a great hardship, therefore, on the mere ground of the constructive fraud, to allow creditors who had no interest at the time to seize and dispose of the property sold. It is contended, however, by the appellant that a corporation debtor does not stand on the same footing as an individual debtor; that, whilst the latter has supreme dominion over his own property, a corporation is a mere trustee, holding its prop- erty for the benefit of its stockholders and creditors, and that 80 Graham v. Railroad Co. [Oct. Term, Opinion of the court. if it fail to pursue its rights against third persons, whether aris- ing out of fraud or otherwise, it is a breach of trust, and cred- itors may come into equity to compel i\,n enforcement of the corporate duty. This, as we understand, is the substance of the position taken. We do not concur in this view. It is at war with the notions which we derive from the English law with regard to the nature of corporate bodies. A corporation is a distinct entity. Its affairs are necessarily managed by ofiicers and agents, it is true; but in law it is as distinct a being as an individual is, and is entitled to hold property (if not contrary to its charter) as absolutel}' as an individual can hold it. Its estate is the same; its interest is the same ; its possession is the same. Its stock- holdei's may call the oiiicers to account, and may prevent. any malversation of funds or fraudulent disposal of property on their part. But that is done in the exercise of their corporate rights, not adverse to the corporate interests, but coincident with them. When a corporation becomes insolvent, it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors. A court of equity, at the instance of the proper parties, will then make those funds trust funds, which, in other circumstances, are as much the absolute property of the corporation as any man's property is his. We see no reason why the disposal by a cor- poration of any of its property should be questioned by subse- quent creditors of the corporation any more than a like dis- posal by an individual of his property should be so. The same principles of law apply to each. We think that the present bill cannot be maintained, and that the decree of the Circuit Court must be affirmed. AlfJ?IRMED. 1880.] TiEENAN V. EiNKER. 8 1 Opinion of the court. B. P. TiERNAN, L. L. HlGGINS, ET AL. T. SeLIM EiNKER, AS COUNTY TREASURER OF GaLVESTON, TeXAS. 1. A statute of Texas levying on any one " pursuing tlie following-nameO occupations an annual tax as follows : For selling spirituous, vinous, malt, and other intoxicating liquors, a certain amount; provided that this section sliall not be so construed us to include any wines or beer manufactured in this State, or when sold by druggists for medicinal purposes," is inoperative so far as it makes a discrimination against wjnes and beer imported from other States, when sold separate!}'' from otlier liquors, but is valid wlien tliey are sold together with other liquoi'S. 2. Tlie case of Weltou v. Missouri, 90 U. S., 275, distinguished from the case at bar. Error to the Supreme Court of the State of Texas. A. H. Willie, for plaintiffs in error. No counsel appeared for defendant in error. Field, J. — A statute of Texas regulating taxation, passed in June, 1873, in its third section enacts: "That there shall be levied on and collected from every person, iirm, or association of persons pursuing any of the following named occupations, ' an annual tax, , as follows: For selling spirituous, vinous, malt, and other intoxicating liquoi's, in quantities less than one quart, two hundred dollars ; in quantities of a quart and less than ten gallons-, one hundred dollars; provided that this section shall not be so construed as to include any wines or beer manufactured in this State; or when sold by druggists for medicinal purposes." In the succeeding section the statute authorizes the County Courts of the several counties of the State to levy taxes upon the same parties equal to one-half the amount of the State tax. In pursuance of this authority the County Court of Galveston county, in March, 1876, levied a tax upon the parties engaged in the occupations mentioned in the third section equal to one- half the tax levied by the State. 82 TiERNAN V. liiNKEE. [Oct. Term, Opinion of the eoort. The petitioners in tlie conrt below, the plaintiffs in error here, are engaged in the county of Galveston in the occnpa- tion of " selling spirituous, vinous, malt, and other intoxicating liquors," some of them in quantities less than one quart, and others in quantities of one quart and less than ten gallons ; and the wines and beers which they sell are not of the manu- facture of the State. They therefore seek to enjoin the en- forcement of the tax against them on the alleged ground that the statute is invalid in that it disci'iminates in favor of wines and beer manufactured in the State against those which are manufactured elsewhere, and they commenced the present suit for that purpose. The District Court of the State sustained a demurrer to their petition and dismissed the case. The Su- preme Court of the State affirmed the decision, and hence the appeal to this court. The petitioners rely upon the ruling of this court in the case of Weltoii V. Missouri to sustain their position. There the State kad exacted the payment of a license tax from travelling peddler* who dealt in the sale of goods, wares, and merchan- ■dise wliieli were not the growth, product, or manufacture of fhe State. And this court held, following in that respect the ruling in B!ix)wn v. Maryland, that the tax exacted from deal- ers in goods before they could be sold was in efi'ect a tax upon the goods themselves, and that the legislation which thus dis- ncriminated against the products of other States in the condi- itions upon which they could be sold by. a certain class of dealers was in conflict with the commercial clause of the Con- .:Stitution. In deciding the case, the court observed that the power ..conferred by this clause to regulate commerce with foreign nations and among the several States is without limitation; and that to regulate commerce is to prescribe the conditions > upon whigh it shall be conducted, to determine how far it shall be free from restrictions, how far it shall be sub- jected to duties and imposts, and how far it shall be prohib- . ited;,.th&t.,when .the subject to which the power applies is 1880.] TlERNAN V. lilNKEU. 83 Opinion of the court. national in its character or of such a nature as to admit of uniformity of regulation, the power is exclusive of State authorit}'; that the portion of commerce with foreign countries, or between the States, which consists in the transportation and exchange of commodities, is of national importance and ad- mits and reijuires uniformity of regulation ; that the object of vesting this power in the general government was to insure this uniformity against discriminating State legislation ; and that to that end this power must cover the property which is the subject of trade front hostile or interfering legislation until it has become a part of the general property of the country and subject to similar protection and to no greater burdens. If, before that time, the propei'ty can become subject to any restrictions by State legislation, the object of vesting the con- trol in Congress ma}' be defeated. If the State can exact a license tax from one class of traders for the sale of goods which are the growth, product, or manufacture of other States, it can exact the license from all traders in such goods, and the amount of the tax will rest in its discretion. " Imposts," the court said, "operating as an absolute exclusion of the goods, would be possible, and all the evils of discriminating State legislation favorable to the interests of one State and injurious to the in- terests of other States and countries, which existed previous to the adoption of the Constitution, might follow, and the expe- rience of the last iifteen years shows would follow, from the action of some of the States." The court, therefore, held that the commercial' power of the Federal government over a com- modity continued until the commodity had ceased to be the subject of discriminating legislation in any State by reason of its foreign character, and that this power protects it. after it has entered the State from any burdens imposed by reason of its foreign origin. The court also held that the inaction of Congress to prescribe any specific rules to govern interstate commerce, when considered with reference to its legislation with respect to foreign commerce, is equivalent to a declara- tion that interstate commerce shall be free and uutrammeled, 84 TiERNAN V. EiNKER. [Oct. Tci'm, Opinion of the court. and that this policy would be defeated by discriminating legis- lation like that of Missouri. The doctrine of this case has never been questioned; it has been uniformly recognized and approved, and expresses now the settled judgment of the court. According to it, the statute of Texas is inoperative so far as it makes a discrimination against wines and beer imported from other States, when sold separatelj' from other liquors. A tax cannot be exacted for the sale of beer and wines when a foreign manufacture, if not exacted from their sale when of home manufacture. If a party be engaged exclusively in the sale of these liquors, or in any business for which a tax is levied because it embraces a sale of them, he may justly object to the discriminating character of the act, and on that account challenge its validity, under the decision in question ; but if engaged in the sale of other liquors than beer or wines, he cannot complain of the State tax on that ground. The statute makes no discrimination in favor of other liquors of home manufacture. Whilst it groups the sale of several kinds of liquors as one occupation, it evidently intends that the occu- pation which consists in the sale of any one of the several liquors named, in the quantities mentioned, shall be subject to taxation, as though it read, "for selling spirituous, or vinous, or malt, or other intoxicating liquors." It does not require to justify the tax that a party shall be engaged in the sale of all the liquors mentioned, as well as other liquors. This being the true construction of the act, there can be no objection to its enforcement where the tax is levied for occupations for the sale of other liquors than wines and beer. In the present case the petitioners describe themselves as engaged in the occupar tion of selling spirituous, vinous, raalf, and other intoxicating liquors — that is, in all the liquors mentioned and others not mentioned. There is no reason why they should be exempted from the tax when selling brandies and whiskies and other alcoholic drinks, in the quantities mentioned, because they 1880.] Draper v. Davis. 85 Opinion of the court. could not be thus taxed if their occupation was limited to the sale of wines and beer. We see, therefore, uo error in the ruling of the Supreme Court of Texas, and its judgment is accordingly affirmed. Affirmed. Nathan C. Draper v. Henry 8. Davis et al. Where a justice of an inferior court tooli an appeal bond for a certain amount and signed tlie citation, tliis operated as a supersedeas, wliich transferred tlio' ca.se appealed from into this coui't, and his powers were exhausted, and a failin-e to file an additional bond subsequently required by the same justice does not vacate the supersedeas. Appeal from the Supreme Court of the District of Colum- bia. Motion for a supersedeas. William A. Meloy, for appellant. John SeMen and Leigh Robinson, for appellees. Waite, C. J. — The final decree in this cause was rendered April 30, 1878. On the 7th of May an order was entered on the minutes of the court below, sitting in general terra, allow- ing an appeal to this court, but no security was then taken, either for costs or to obtain a supersedeas. On the 29th of June, being the sixtieth day after the rendition of the decree, a bond in the penal sum of one thousand dollars, conditioned according to law for a supersedeas, with sureties, was approved by one of the justices of the court below, and filed with the clerk. There has been uo allegation that the approval of this bond was procured by fraud. On the same day the same justice signed a citation, which was served July 8. The taking of this security was not the act of the court, but of the justice. On the 20th of July the same justice, being satisfied that the bond he 86 Draper v. DaVis. [Oct. Term, opinion of the court. had taken and approved was "insufficient and inadequate security," " ordered that tiie appellant, within twenty days, * * file an additional bond in the penalty of $3,000, with good and sufficient surety, to be dulj' approved, and upon such notice as is required under rule 116 of this [the Supreme Court of the District] court." Within the time required by this order the appellant presented to the justice for approval an addi- tional bond for the required amount, but it does not appear that this bond was ever accepted. The appellant fearing, as he alleges, that the court below will proceed to carry its decree into effect pending this appeal, now asks that a writ of super- sedeas may issue to stay any such proceeding. When the original bond of one thousand dollars was accepted by the justice and the citation signed, an appeal was allowed and security taken, which operated as a supersedeas. That transferred the jurisdiction of the suit appealed to this court. As this allowance was the act of the justice of the court, and not of the court itself, no such question is presented as was decided in Goddard v. Ordway, 101 U. 8., 752, where we held that if the allowance was the judicial act of the court in term time, it might, like any other order in the suit, be set aside on proper showing during the term. The power of the justice over the appeal and the security, in the absence of fraud, was ex- hausted when he took the security and signed the citation. From that time the control of the supersedeas as well as the ajjpeal was transferred to this court, and even here, as w'e held in Jerome v. McCarter, 21 Wall., 17, in the absence of fraud the action of the justice or judge in accepting the securitj', within the statute and within our rules adopted for his guid- ance, was final, so far as it depended on facts existing at the time the security was accepted. It follows that the supersedeas, which resulted from the taking of the security on the 29th of June, is still in force and has never been vacated. Conse- quently the court below is without power at this time to pro- ceed with the execution of the decree appealed from, and we 1880.] HuNNicuTT 0. Peyton. 87 Syllabus. will presume that upon an iDtimation of that kind from us it will not attempt to do so. Should au application be made to us to increase the security on the ground of a change' "in the circumstances of the case, or of the parties, or of the sureties on the bond," " so that se- curity which was good and sufficient" at the time it was taken " does not continue to be so," (Jerome v. McCarter, supra,) or to set aside the bond which was accepted on the ground that its acceptance was procured by fraud, (Railroad Company v. Schutte, 100 U. S., 644,) we can thea determine whether the supersedeas now in force shall be vacated ; but on the case as it now stands we think the court below is without power to proceed in the execution of the decree which has been appealed from. Motion denied, without prejudice to its renewal should it be necessary. Motion denied; W. S. HuNNICUTT ET AL. V. JOHN B. PbYTON AND EmILY T. Peyton, legal representatives of Balie Peyton, deceased, Sallie C. Parker, et al. 1. A rule of court prescribed that " no bill of exceptions would be signed unless presented to the judge witliin five daj's after the close of tlie trial, unless further time be allowed by the court." A bill of excep- tions was presented eleven days after the close of the trial and signed by the judge, who at tlie same time entered an order extending till then tlie time for tiling it. It was in the power of the judge to make such an order, and the bill of exceptions was filed In time. 2. Suing out a writ of error before a bill of exceptions was signed, is not a waiver of sucli unsigned bill of exceptions. 3. Wliere additional time after tlie close of a trial is granted by the court for filing a bill of exceptions, it is not necessary that the bill purport to have been signed nunc pro tunc as of the day of the trial. ■1. As, under Texas law, pui'chasei'S under th(! 24tli 'section of Mexican laws of 1S25 can alienate tlieir grants as soon as the concession has been made to them, and a formal act of sale by tlio original grantee- HuNNicnTT V. Peyton. f Oct. Term, Opinion of the court. t with a power to tlie pm-cliaser to obtiiiii the title of possession con- stitutes tlie purchaser the absolute owner of the property wlien put into possession, the title in this case, tlirougfi the original gi'antee by a deed of bargain and sale to thw party appointed by him as liis attor- ney to solicit possession and title, and through that party to the ancestor of the defendant in error, is a good legal title. .5. Hanrick v. Barton, 16 Wall., 106, distinguished. 6. The description in the first paragraph of tlie opinion of the court held a sutficiont identification. 7. lu questions of private bonudar^r, declarations of particular facts, as distinguished fron'i reputation, nuide by deceased persons are not admissible, unless made by persons sliown to have had knowledge of that whereof they spoke, or persons on the land or in possession of it when tlic declarations were nuide; . S. To be evidence, tliey must have been made wlien the declarant was pointing out or marking the boundaries, or discharging some duties relating thereto. 9. As between two claimants under conflicting grants, whei-e the one holding the older grant is in possession, and the one holding the junior grant enters, the elder grantee is disseized only to the extent of the land actually occupied by the junior grantee, and not to the extent of all the land claimed in the junior grant. EiiROR to the U. S. Circuit Court for the Western District of Texas. L. W. Goodrich, for plaintiffs in error. P Phillips and S. R. Fisher, for defendants in error. Strong, J. — This is an action of ejectment brought to re- cover the possession of a tract of land described as " four leagues ,of land on the east bank of the Brazos Kiver, known as the cGregorio Basques survey of four leagues," and more particu- FJarly described in the amended petition as "beginning at a ;stake on the east bank of the river Brazos, in the county of iFal'ls, State of Texas, at a point where the upper line of the Austin and Williams reserve, on the east side of said river, intersects the river, running thence v/ith said upper line of the n'eserve north 71 degrees east 20,230 varas to a stake"; thence iby several courses to a stake on the Brazos River for its fourth 1880.] HuNNicuTT V. Peyton. 89 Opinion of the court. corner; thence up the river to the place of beginning, " cover- ing an area of four leagues fronting on said river, and lying within said Austin and Williaijis reserve, immediately below and adjoining said upper line of said reserve." The defense set up against the claim of the plaiutifts was the general issue, by which the title of the plaintiffs was denied, as also the wrongful entry of the defendants. The statutes of limitation were also pleaded. At the trial in the Circuit Court a verdict was obtained by the plaintifis, upon which a judgment was entered, and the defendants have brought the case here, assigning several errors to the ruliugs in the lower court. Before proceeding to examine them it is necessarj' to notice ail objection interposed by the plaintiffs against their being considered at all. The verdict was rendered on the 17th of February, 1877, and judgment thereon was entered on the same da}'. On the 19th of the same month the defendants moved for a new trial. This motion was overruled on the 20th. Two da^^s afterwards (on the 24th) the writ of error was sued out, tested on that day. It does uot appear when the writ was tiled or served. A cita- tion was also issued on the 24th of February and returned by the marshal received in his office September 3d, and served the same day. The defendants' bills of exception, upon which their assign- ments of error are founded, were signed by the judge on the 28th of February, and filed in the cause on the 1st of March next following. This was during the term at which the cause was tried, but eleven days after the verdict was rendered. The plaintiff's' counsel was present when the bills were signed, and objected on the ground that they were not presented for sig- nature within the time limited by the rule of the court. That rule wss as follows: "No bill of exceptions will be signed un- less presented to the judge within ffve days after the close of the trial, unless further time be allowed by the court." No 90 HuNNicuTT V. Peyton. [Oct. Term, Opinion of the court. objection was made to the correctness of the bills, or to their signature, because a writ of error had been sued out. On the let of March an order was made by the court extend- ing the time for presenting and tiling the bills until that day, (the plaintiffs objecting to the order,) and accordingly the bills were then filed. It is now insisted that the bills of exceptions cannot be con- sidered a part of the record, and that they are properly here for review. For this several reasons are advanced, the first of which is that the presentation to the judge was not in the time prescribed by the rule of the court. But the rule requiring the presentation of bills for the signature of the judge within five days is not a rule which controls his action. He may depart from it in order to efiectuate justice. (Stanton v. Embry, 93 U. S., 552.) It is a direction to the parties and it expresslj' reserves the power to enlarge the time. It is no doubt necessary that exceptions should be taken and, at least, noted before the rendition of the verdict, but the reduction of the bills to form, and the signature of the judge to the bills, required for their attestation, or, as said in the statute of Westminster, "for a iesimoni/" may be afterwards, during the term. In practice it is not usual to reduce bills of excep- tion to form and to obtain the signature of the judge during the progress of the trial. Nor is it necessary. The statute of Westminster did not require it. It would greatly and uselessly retard the business of courts were it required that every time an exception is taken the progress of the trial should be st^iyed until the bill could be reduced to form and signed by the judge. For this reason it has always been held that the exception need only be noted at the time it is made, and may be reduced to form within a reasonable time after the trial is over. (United States V. Breitling, 20 How., 254 ; Stanton v. Embry, 93 U. S., 555; Dredge v. Forsythe, 2 Black, 568.) The time within which the signature of the judge must be applied for, if within the term, is left to the discretion of the judge who noted the exception when it was made. It may depend much upon the 1880.] HuNNicuTT V. Peyton. 91 0[>inion of the (lourt. nature of the bills. Some require much more time for prep- aratjon than others. It is true a judge cannot be permitted to make up a statement of facts, after the writ of error is issued, upon which the case shall be heard. (Generes v. Bonnamer, 7 Wall., 565.) That is quite a diiferent matter. But when an exception has been taken at the trial and noted, reducing the exception to form afterwards and attesting it, is not making a new case. It is merely verifying the case as it appeared on the trial. It is further urged by the plaintiffs that the defendants waived their exceptions by suing out the writ of error before the signature of the judge was obtained. In support of this objection we are i-eferred to Tidd's Practice, 863, wliere it is said: " If a party who, at the trial of a cause, has tendered a bill of exceptions, bring a writ of error before he has procured the judge's signature to such bill, he thereby waives the bill of exceptions, and will not be permitted by the Court of Error afterwards to tack or append the bill of exceptions to the writ of error." (tth Am. ed., from the 9th London.) For this the author relies on the case of Dillon v. Parker, reported in 1 Bingham, 17, and 11 Price, 100. In that case a year had elapsed after the writ of error had issued. The transcript of the record had gone into the Court of Errors. The common assignments of error had been made and issue had been joined before the plaintiff in error moved the court in error to compel a settlement of the bill in the lower court, and asked that it might be appended to the writ. In response to this motion it was observed by two of the justices that the proper course would be to apply to the inferior court (the Court of King's Benqh), who might, perhaps, make such an order, and then the bill of exceptions might be brought up by an allegation of diminution. The case cited hardly sustains the text. Only one of the judges expressed the opinion that the writ of error and the return of the record were a waiver of the bill of ex- ceptions. But if that is the rule in the English courts, it is not imperative even there. Where the presentation to the 92 HuNNicuTT V. Peyton. [Oct. Term, Opinion of the court. judge has been delayed from the default of the defeudant in error, or for other sufficient reasons, the Court of Errors will allow the hill of exceptions, when signed, to be tacked to the record as of the time when the record was removed. (Taylor V. WiUiams, 2 Barn. & Adol., 846; Id., 6 Bingham, 512.) The case is reported also in 4 Moore & Payne's Keports, p. 257, where the facts are fully stated. On a trial of a case before Chief Justice Tindal, on the 23d of December, a bill of excep- tions was tendered, the substance of which was reduced to writing and given to the officer of the court before the termi- nation of the cause, but it was not then signed and sealed. There was a verdict for the plaintiti". The defendant sued out a writ of error in the King's Bench. Subsequently, on the 11th of February following, the bill of exceptions in an amended form was settled by the counsel foi- the parties, and a copy was sent to the plaintiff's attorney that he might accede to its terms or suggest alterations before it was sealed by the chief justice. At the same time the defendant served a rule to transcribe the I'ecord for return with the writ of error. The bill not having been returned, the court granted an order for its return. It was argued against the rule (and Dillon v. Parker was cited in support of the argument) that the bill was waived, and that by the writ of error and the rule to transcribe the record had been removed into the King's Bench. But the court, all the judges concurring, retained the order upon the attorney, hold- ing that the chief justice might seal the bill. It is not, there- fore, by any means settled, even in England, that suing out a writ of error is a waiver of unsigned bills of exceptions. "We know of no decision in this country that asserts or gives any countenance to such a rule, or &\\j reason that justifies it, unless it be one in New York, to which we shall refer. True, a writ of error here, as in England, is supposed to remove the record of the court to which it is directed into the superior tribunal. But this is a mere fiction. In neither country is the record itself actually sent up. A transcript only is sent. In England, at common law, a writ of error operated as a 1880.] HuNNicuTT V. Petton. 93 Opinion of tiie court. supersedeas and stayed all action of the inferior court, and thence it was regarded as removing the record and ousting the jurisdiction of that court. The law there has been changed. And here the writ is, of itself, no supersedeas. If there be no bail for a supersedeas, a writ does not stay the action of the trial court. An execution may be issued and executed though a writ of error is pending. Mucli more, it would seem, must the court to which the writ is sent have power, during the term in which the case is tried, to put its records and proceedings in form to return them in obedience to the writ. If that cannot be done great hardship and injus- tice would in many cases be the result. As we have said, bills of exceptions cannot always be formally prepared until a con- siderable time after verdict and judgment. They may re- quire, in some cases, a full statement of jilmost d,!l that occurred at the trial. Papers necessary to be incorporated may be mis- laid or withheld by the opposite party ; the charges of the judge, to which exception has been taken, may not have been tiled, or sickness may have interfered. Meanwhile, judgment on the verdict may have been entered, and unless the party can pro- tect himself bj' a writ of error an execution may follow. For these reasons, the univeraal practice is to give reasonable time to make up. the bills of exception and obtain the signature. This is not altering the record ; it is completing it. It is not exercising jurisdiction over the case; it is merely putting into form the record statement of what was done before the writ of error was sent down. In Brown v. Bisseli, 1 Dougl.,.(l Mich.,) 273, where a bill of exception returned with a writ of error appeared to have been signed after the writ was sued out, it was held to be, at most, whether at common law or under the statute, a mere irregularity, which was waived by a joinder in error. (Wilbeck v. Wayne, 8 How. (N. Y.) Prac, 433.) The remaining objection to the bills of exceptions is that they were not signed nor filled nunc pro tunc, but that they ap- pear on their face to have been signed and filed ten days after 94 HuNNicuTT );. Peyton. [Oct. Term, Opinion of the court. the trial. We think, however, the absence of any order that the bills should have the same effect as if they had been signed and filed during the trial, is not a fatal objection. The order of March 1, extending the time for signing and filing, is eqniv- alent to such an order; and the fact that the date of the signa- ture was the 28th of February is of no practical importance. At most, it is only an irregularity; it is not a void act. Per- haps the bills would have appeared more regular bad they been dated February 17; but they are recitals of what oecuri-ed at the trial, and they show that the exceptions were then taken— taken in time. If it be kept in mind that the judge's signa- ture is required- only for "testimony" that the exception was taken at the trial, and before verdict, it cannot be material that the testimony was given after the close of the trial, if given during the term. We do not overlook what was said by Duval, J., in Walton v. The United" States, 9 Wheat., 667. We gather the facts of that case only from the opinion of the court. From that it appears that the bill of exceptions did not show that any exception was taken at the trial; that, of course, was a fatal defect. But Duval, J., after having noticed that fact, went on to make some general observations. After stating that it will be sufficient if the exception be taken at the trial and noted by the court with the requisite certainty, and that it may afterwards, during the term, according to the rules of court, be reduced to form and signed by the judge, he added: "But in all those cases the bill of exceptions is signed nunc pro tune, and it purports on its face to be the same as if actually reduced to form and signed pending the trial. And," he said, "it would be a fatal defect if it were to appear otherwise; for the original authority under which bills of exceptious are al- lowed has always been considered to be restricted to matters of exception taken pending the trial and ascertained before the verdict." These remarks were not necessary to the decision of the case, and they are nnsustained by any authority, so far as we know, that existed when they were made. In ex-parte Bradstreet, 4 1880.] IIuNNicuTT V. Peyton. 95 Opinion of ttie court. Pet, 107, Chief Justice Marshall said a practice to sign a bill of exceptions after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term allowing such a period to prepare it. No intimation was given that the signature must be nunc pro tunc. Walton V. United States was referred to in Law v. Merrill, 6 "Wendell, 278, by one of the judges, and the language of Judge Duval was quoted, but it was unnecessary to a decision of that case. The bill there had been signed, a year after the trial, by a judge who had not tried the cause. We tind no case which can be regarded as an authoritative decision that a bill of exceptions, signed during the term at which the trial took place, though after, the close of the trial, must be ante- dated to make it effective, or ordered to be filed 7iunc pro tunc, as of a time during the trial. Nor can we discover any reason for such a requirement. During the term the records of the term are before it for amendment in matters of forni, and whether a bill was signed as of a date after judgment, if dur- ing the terra, or antedated to a time during the trial, is a ques- tion of form only, if it appears that the exceptions were in fact taken before verdict and during the progress of the trial. Con- fessedly it may be signed after judgment, as of a date before, and be effective, though the date of the signature in such a case is false. Why should giving to the signature its true date destroy it ? The reason why it is required that a bill shall be presented for signature during the term, (except in extraordi- nary cases, when delay is allowed by the judge,) is that the facts appearing and rulings made at the trial may be fresh in his memory. Are they any more fresh in his memory when he antedates the bill, or orders it to be filed as of the date of the trial, than when he gives to the signature and filing their true date ? We cannot doubt that in a multitude of cases bills of exception have been signed after judgment, and filed with- out any order that the signature and filing be entered Jiunc pro tunc, but when the true time of the signature appeared, and 96 HuNNiCTjTT V. Peyton. [Oct. Term, Opinion of the court. have been treated as sufficient, whenever they have sljown that the exceptions were taken during the trial. And, we think, it would be a surprise to the profession, and work great wrong to suitors, were we to hold such bills invalid. In Neece v. Heely, 23 III., 416, exceptions were duly taken at the trial. The record showed that the bill of exceptions was signed three days afterwards, but during the term. It was held that the bill was good and that the record need not explain the delay. So it was ruled in Illinois Kailroad Co. o. Palmer, 24 111., 416, that if the bill of exceptions clearly shows that exceptions were taken at the proper time, it is immaterial that it was not signed till some days after the trial and that it spoke in the present tense. In Dean v. Gridley, 10 Wend., 254, Savage, Ch. J., declared that it was not required the bill should be so drawn as to ap- pear to have been signed upon the trial, whether it was so or not. He was speaking of the Supreme Court of Errors. (See Hollowell V. Hollowell, 1 Monroe, 130 ; Hughes v. Rojjertson, Id., 215.) We pass then to a consideration of the assignments of error. The iirst raises the question whether the title which was set up in Jonathan Peyton was a legal one, or merely an equity. As set out in the several bills of exceptions, it appears to have been as follows: On the 28th of September, 1830, Gregorio Basques applied to the proper authorities of the Mexican Government for a grant in sale of eleven leagues of vacant land in the depa^^tment wherein Nacogdoches was sit- uated, with the privilege of selecting them together, or sepa- rate, or in distinct places. On the 11th of March next following a concession was made in accordance with the prayer of the petition^ and an order was given to the commissioner for the partition of land, or the alcalde of the jurisdiction to put the petitioner into possession of the subject of the grant. On the 20th of September, 1831, Basques gave a power of 1880.] HuNNicuTT V. Peyton. 97 Opioion of the court. attorney to Don Jayme Hartz empowering him to solicit the possession and titles to the said eleven leagues, in the place or places which best suited him, (Hartz,) together or separate, and empowering him also to appoint substitutes. Two days afterwards Basques sold and conveyed the grant for the sum of one hundred and iifty dollars to Don Jayme Hartz in fee. On the 2d of March, 1832, Hartz, in consideration of five hundred dollars to him paid, sold the concession or grant to Jonathan Peyton, the ancestor of the plaintiff in fee, and sub- stituted him as attorney. The act of sale recited the convey- ance of Basques to the vendor. On the 7th day of October, 1833, the constitutional alcalde, by a legalized act, conferred upon and put Peyton, the afore- said attorney of Basques, "in real, virtual, personal, and actual possession of the eleven leagues," the same which had been granted to Basques, describing them by the situation, lines, limits, and corners as delineated in the notes of survey made by Fi'aacis W. Johnson, the principal survej'or, on pages two and following of the proceeding, with the figure thereof shown in the map thereunto annexed. The act of the alcalde also ordered that an authenticated copy of it should be delivered to the interested party, that he might possess, use, and enjoy the lands sold to him, his children, heirs, and successors, or whoever of him or them might have cause, interest, or right to represent. We are unable to see why these proceedings did not vest the legal title to the lands granted in Peyton. The possession was delivered to him, and he was instituted therein. The in- terest of Basques, whatever it was, both legal and equitable, had been sold by him to Hartz, and Hartz had sold it to Pey- ton. The institution into possession must, therefore, have in- ured to the benefit of Peyton. It is a mistake to allege, as the defendants now do, that the final extension of title was to Basques. It may be that Peyton would have held the land for the use of Basques had he been only the attorney of Basques, 98 HuNNiCTjTT V. Peyton. [Oct. Term, Opinion of the court. Buthe was more. He was a grantee of all the Basques right. In this particular the case is unlike Hanrick v. Barton, 16 Wall., 106. There, as here, there had been an extension of the pos- session to the attorney in fact of the original grantee of the government, and it was held that the extension inured to his benefit, and that its legal effect was to perfect title in him. But there had been no grant of the original title to the attor- ney. An assertion of title in him was, therefore, a fraud upon his principal. But this court said: "We do not mean to say that the original grantee, if not prohibited by law, might not have assigned his inchoate title to a third person, nor that the title might not, by a grant in proper form, have been perfected in such assignee." It has repeatedly been decided in Texas that purchasers under the 24th article of Mexican laws of 1825 can alienate their grants as soon as the concession has been made to them, before the land was selected, or the title of possession was issued. (Ryan v. Jackson, 11 Texas, 391; Clay v. Holbut, 14 Texas, 204.) And in Martin v. Parker, 26 Texas, 254, it was held that a formal act of sale by the orignal grantee, with a power to the purchaser to obtain the title of possession, must be held to constitute the purchaser the absolute owner of the property when he is put into possession of the land, and the evidence of title by the proper officer of the government. Such is this case. The first assignment of error, therefore, cannot be sustained. Nor can the second. The original grant, it is true, did not locate the subject of the grant. It contemplated a selection and location thereafter, and when these were made, as the jury found, and the title of extension was given, the title was com- plete. There was enough in the extension, coupled with the notes of the surveyor, (made a part of it,) to enable the location to be identified. A more important question is raised by the third and fourth assignments. It was a very material inquiry, at the trial, where the Bas- ques .four leagues had been located. The title papers de- 1880.] HuNNicuTT V. Peyton. 99 Opinion of the court. scribed the location as beginning at a stake marked P, upon the left margin of the river Brazos, running thence north 71 de- grees east to a corner ; thence by other courses back to the river, and thence up the river to the place of beginning. Such was the report of the survey. The starting point was a stake, per- ishable of course, and which, as might have been expected, M'ould not be found after a lapse of forty years. But the sur- vey was not a mere chamber one. There was evidence that it had actually been made upon the ground, and the court submitted to the jury to iind whether it had or not. No ex- ception was taken to this submission, and the jury found that an actual survey had been thus made. The location of that actual survey was the matter chiefly in controversy. The claim of the plaintiff was that its upper or north line described as beginning at a stake marked P, on the left bank of the Brazos Eiver; running thence by a course north seventy-one degrees east was the upper line of the Austin & Williams re- serve, and identical with it to the extent of the Basques survey. To prove this they introduced the testimony of Horatio Chries- man, against the objection of the defendants. Chriesman had been a surveyor under F. W. Johnson, principal surveyor of the Austin & "Williams lands in the reserve, and William Moore, deceased, had been another deputy. The two deputies, in 1833 and 1834, had been engaged surveying in the reserve other lots on the left side of the Brazos River. Neither of them was on the Basques tract, or on any line of it. Chriesman was laying out tracts fronting one thousand varas on the river. By direction of Johnson, these surveys were to include all the river front between the upper line of the Ruiz (a grant located on the lower line of the I'eserve) and the lower line of the Basques four-league grant. Moore was surveying in the rear. During the time that Moore and the witness were thus engaged surveying in the reserve, and perhaps before that time, as he testified,' he was allowed to state that Moore in- formed him he had made the survey of the Basques four- league tract ; that the upper line of said grant began on the 100 HuNNicuTT V. Peyton. [Oct. Term, Opinion of the court. east bank of the Brazos River at the point where the upper line of the reserve began ; and that the upper line of the Basques ran north 71 one east with the reserve line the full distance of the Basques line, and that the upper line of the Basques and the upper line of the reserve were the same to the extent of the Basques line. It was. this testimony, and other of a similar nature, to which the defendants objected, and to the admission of which they excepted. It ia to be noticed that the witness himself, as he expressly stated, had no knowledge of the location or lines of the Bas- ques survey, except what Moore told him. The declarations of Moore were made when he was at a distance from the place of beginning of the Basques survey and from its upper line, and they were not made when he was pointing out the boundaries of that survey; that Moore had made the survey, or that he had ever been upon its upper line, or on the upper line of the reserve, is proved only by his assertion, which the court allowed to be given in evidence. There was no such proof aliunde. Whether he had any knowledge of the facts whereof he spoke to Chriesman, is known only from his own statement. Again, Moore's declarations had no reference to reputation in the neighborhood. They are not to be confounded with proof of reputation — proof of what the communitj' thought, believed, or said. As repeated by the witness, it was mere hearsay — the unsworn declarations of a deceased person re- specting a particular fact not of a public nature. We do not question that declarations by deceased persons of reputation respecting ancient public boundaries are admissible, and th^y have sometimes been admitted in controversies respecting private boundaries. But they are admissible in only a limited class of cases — a class much more limited than that in which such evidence is ottered to prove reputation of public bound- aries. Proof of reputation is open to rebuttal by witnesses. Not so with declarations of a particular fact respecting a private boundary.. They are, therefore, receivable only when made 1880.] HuNNicuTT V. Peyton. ' 101 Opinion of the court. coincidently with pointing out the boundaries and generally as part of the res gestae. In EUicott et al. v. Pearl, 10 Pet., 412, we find a case Which bears strongly on the present. In that case, which was a writ of right for a tract of land, in which ^he location of a survey was a matter in controversy, a -witness was offered to prove that one Moore, who was dead, but whose name was pnt down as one of the chain-carriers in making the original survey, and who was subsequently present when lines were run on the same land, had declared that a certain corner was the corner made by the surveyor when the original survey was made and the line was run fqr that survey. The evidence was rejected, and, this court ruled, correctly rejected, though the declarations of- fered were made by one who was proved by other evidence to have assisted in running the line. This case is instructive, and we believe it is in harmony with the rule generally enforced in this country. It certainly is in accord with the ruling of the English courts. It is true that in several States of the Union decisions have been made recognizing the admissibility of declarations of de- ceased persons, even though they were statements of particu- lar facts and in regard to mere private boundaries, but many of them, perhaps most of them, were admissible on other grounds, either as parts of the res gestae or declarations of parties in possession. We think such is not the preponderant weight of decision. In Massachusetts, where the subject has been much discussed, it is held that, to be admissible, such declara- tions must have been made by persons in possession of land and in the act of pointing out theii" boundaries. (Bartlett v. Emerson, 7 Gray, 174; 5 Met, 223.) And, again, in Long v. Cotton, 116 Mass., 414, when it was said that it is an element not to be disregarded, especially where the question is one of pi'ivate boundaries, that the declaration was made while in the act of pointing out the boundaries on the declarant's land. The declaration derives its force from the fact that it accom- panies and qualifies an act, and is thus a part of the act. A 102 HuNNicuTT V. Peyton. [Oct. Term, Opinion of the court. siniilai" raling was Vnade in Bender v. Pierce, 27 Penn. St., 335. We will not undertake to review the vast number of de- cisions of State courts upon this subject. It would greatly pro- tract this opinion. Some things may be deduced from them, which, though not universally, recognized, are the conclusions to which we think a great majority of them lead. In questions of private boundary, declarations of particular facts, as dis- tinguished from reputation made by deceased persons, are not admissible unless they were made by persons shown to have had knowledge of that whereof they spoke, or persons on the land or in possession of it when the declarations were made. To be evidence, they must have been made when the de- clarant was pointing out or marking the boundaries, or dis- charging some duties relating thereto. A declaration which is a mere recital of something past is not an exception to the rule that excludes hearsay evidence. Still, if a diii'erent ruling has been made in the State of Texas, and has become a rule of property there, applicable to the determination of contro- versies respecting disputed boundaries, we should feel con- strained to apply the Texas rule to this case. We have, therefore, carefully examined all the decisions of the Supreme Court of that State which relate to the subject. The result has been to convince us that there is no essential difterence between the rule as there held and the general rules held by the American courts. Hearsay evidence is admitted in ques- tions of boundary to establish old boundary lines, even when private, but it is under restrictions, and the restrictions appear to be the same as those which are recognized elsewhere. The first case is George v. Thomas, 16 Texas, 74. What was there ruled was that the declarations of a public surveyor, made while he was making the survey to establish the dividing line, were admissible. They were a part of the res gestae. This is the leading case, to which the later cases refer, and upon which they are generally rested.. The opinion cites Blaythe v. Sutherland, 8 McCord, 258. In that case the decla- 1880.] HuNNicuTT V. Peyton. 103 opinion of the court. •rations of a deceased surveyor, who was proved bj- a witness to have run the line originally, were admitted in evidence. But they were ■ declarations made while the surveyor was pointing out the line and showing the monuments. Stroud v. Springfield, 28 Texas, 649, goes no farther. The evidence offered in that case was rejected. The court, however, re- ferred to Spear v. Cote, 3 McCord, 229, where the court had said, in refei-ence to the declarations of a deceased chain- carrier ivho had pointed out to the loitness a comer tree of the survey: "It cannot be doubted at this day that the declarations of deceased persons ivho shall appear to have been in a situation to possess the information, and are not interested, shall, on a question of boundary, be received in evidence." Even this was not declared to be an accepted rule in Texas, though the chain-carrier who aided in the survey had actually pointed out a corner. The next case is Weller v. Carroll, 29 Texas, 333. It de- cided nothing more than was ruled in the former cases. In- deed, while the court said, "If the locality of a boundary line can be proved by witnesses who can, from their personal knowledge, or on information derived from general reputa- tion, or from its having been pointed out to them by the sur- veyor by whom it was run, or others who were present at the time, or cognizant of the fact, it will fix and mark its position." But at the same time the court rejected the deposition of a witness tending to prove the locality of the line from informa- tion- given him by a surveyor, remarking, that "while, as heretofore held by this court, hearsay evidence to establish ancient boundaries is, under proper circumstances, admissible, it should be closely scrutinized and received with proper- caution." And it was held that the evidence was much toO' vague and uucertain in respect to the locality of the line of ' which the witness spoke, as well as in respect to the source ■ of his information, and the time and circumstances under, which he acquired it. The next case is- Evans v. Hunt, 34 Texas, 111. What* 104 HuNNicuTT V. Pbyton. [Oct. Term, Opinion of the court. was decided in that case was, that declarations of a former owner, since deceased, who, while in possession of and claim- ing the land, pointed out his corner and line to the deposing witness, are evidence of the boundary in behalf of the parties claiming under him. This is the rule as held in other States. The court also decided that the declarations of a son of a former owner who pointed out the disputed line to the witness were inadmissible, but the case does not show what they were nor under what circumstances they were made. This case came again before the court, and it is reported in 49 Texas, 311. The report, however, contains nothing more definite than what appears in 34 Texas. The only other case which we have' found, or to which we have been referred, is Smith v. Eussell, 37 Texas, 247. In that case it appeared that the lower court had permitted the defendants to prove that one of the original chain-carriers, who was dead at the time of the trial, had pointed out to the wit- ness the place of the corner. The Supreme Court held that the evidence was properly admitted, with the general remark that " the declarations of deceased witnesses may be proved to fix the location of corners and lines," citing Stroud v. Spring- field and Weller v. Carroll. From a review of all these cases it is quite obvious that the rule in Texas is not different from that which we have endeavored to show is the general Aniericaii rule — the guarded rule we have heretofore stated. Our conclusion, therefore, is that the fourth and fifth assign- ments of error must be sustained, and that the answer of Chriesman to the fourth, ninth, and nineteenth interrogatories, as well as all the declarations of Moore, were erroneously received. We discover no error in the admission of the evidence set ..out in the fourth bill of exceptions. The documents were cer- tainly evidence against one of the defendants. Nor can the sixth assignment of error he sustained. The survey made under the Sanchez concession was not the com- pletion of his title. It did not identify the subject of the con- 1880.] HuNNicuiT V. Peyton. 105 Opinion of the court. cession until it was accepted by the government and until the title of possession was given. That was issued October 19, 1833, after the Basques concession had been consummated. The seventh assignment relates to the charge given to the jury respecting the statute of limitations. To understand this it is necessary to refer to some of the facts that appeared in evidence. It appeared that in 1835 John Martin, as a col- onist, obtained a complete grant from the Mexican Govern- ment of one league, part of which interfered with the Basques four-league tract. It appeared also that the defendants, Watson and his children, Bartlett and his wife, and W. H. Jones, having shown title in themselves to the several tracts they claimed, by regular transfer from the sovereignty of the soil, gave evidence tending to show that their ancestor, Churchill Jones, in 1855 or 1856, took actual possession of that part of the Martin league which interfered with the Basques grant, built a mill and other improvements thereon, and that the possession had been kept up exclusively by said defendants, and those under whom they hold, down to the trial. This possession they claimed to be a defense. It appeared, however, that in 1858 the plaintiffs' ancestor entered on the Basques grant, but not on the inter- ference, and made a lease to James Martin, permittiug him to occupy three hundred and twenty acres. Martin has ever since resided there, holding as tenant under the plaintiffs or their ancestor. The charge of the court was as follows: " The facts, as I understand the defendants to claim them, are that in 1855, under the Martin title, and in 1856 or 1857, under the Sanchez title, they took actual possession of their lands Ij'ing within the conflict. "From that date the statute of limitation began to run in their favor for the lands embraced within their title as against the Basques title. If three years elapsed before they were ousted by a superior possession, then their occupancy for three years makes a complete bar to any recovery by the plaintiff. . "But the plaintiffs claim that in May, 1857, before the de- 106 HuiSTNicuTT V. Peyton. [Oct. Terra, Opinion of the court. fendants had been in possession for the period of three years of any of the lands within the conflict, their possession was interrupted by the entry upon the Basques grant of James Martin as the agent for Mrs. Eberly. " If you tind this fact to be as the plaintiffs claim, that James Martin entered upon the Basques grant in 1857 as the agent for Mrs. Eberly, claiming title to the whole in her name, we instruct you that for that time- the possession of the defendants, they holding- under a junior title, was restricted to the lands actually occupied by them, and could not be extended by con- struction to the bounds called for by their paper title. "From January 28, 1861, to the 30th of March, 1870, the statute of limitations in this State was suspended. No exten- sion, therefore, of the actual possession of defendants between these dates would avail them unless held for three years after the statute had again commenced running, and before the commencement of this suit." It is this instruction of which the defendants complain. But we think it was correct. It was in accordance with the doc- trine asserted in Clark v. Courtney, 5 Peters, 354, and gener- ally recognized. It is true that when a person enters upon unoccupied land, under a deed oi- title, and holds adversely, his possession is construed to be coextensive with his deed or title, and the true owner will be deemed to be disseized to the extent of the boundaries described in that title. Still, his pos- session beyond the limits of his actual occupancy is only a con- structive one. If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, the constructive possession is in him of all the land not in the actual possession of the intruder, and this though the owner's actual possession is not within the limits of the defective title. " The reason is plain. Both parties cannot be seized at the same time of the same land under different titles. The law, therefore, adjudges the seizure of all that is not in the actual occupancy o-f the adverse party to him who has the better title." These distinctions are clearly shown in the cases cited from 5 Peters, 1880.] HuNNicuTC V. Pkyton. 107 Opinion of the court. Sitp-a. One who enters upon the land of another, though under color of title, gives no notice to that other of any claim, except to the extent of his actual occupancj'. The true owner may not knowthe extent of the defective title asserted against him, and if, while he is in actual possession of part of the land, claiming title to the whole, mere constructive possession of another, of whicli he has no notice, can oust him from that part of which he is not in actual possession, a good title is no better than one which is a mere pretense. Such, we think, is not the law. When the owner of the Basques title entered upon the tract, took actual possessio,n of a part by her tenant, and retained it, claiming the whole, the law gave to that owner the constructive possession of all that was not in the actual adverse possession or occupancy of another. In Altemus v. Long, 4 Penn. St., 254, it was ruled that though actual possession under a junior title of part of a tract of land, which interfered with an older grant, gave possession of the whole to the holder of the junior title, yet a subsequent entry of the true owner upon any part of his land was an ouster of the intruder from what he had in constructive pos- session merely. We know of no authoritative decision that is in conflict with this. It is sufficient to say of the eighth assignment of error that it is not sustainable. The answer to the defendants' point was , clearly correct. The remaining exception is to the sufficiency of the verdict. It is said it was "indefinite, uncertain, and did not find the main issue, viz., how much of the defendants' land, if any, is covered by the Basques grant ?" This is not necessary for us now to discuss. It may be the verdict was not sufficiently certain, but as the case goes' back for another trial the matter is of no impoi'tance now. The judgment is reversed and the cause is remitted for a uew trial. Reversed. 108 Southern Bank v. New Orleans. [Oct. Term, Opinion of tho court. The State of Louisiana, ex rbl. The Southern Bank, v. The City of New Orleans. A motion to advance a canso on the vo vessels, and about throe miles distant therefrom, was the New Jersey shore, trending ait that point about north by east and south by west, and on the leeward side was the open ocean, without any obstruction to safe navigation. There was nothing to prevent the stean)- ship from seasonably changing her course so as to pass either to windward or to leeward of the schooner and give her a wide berth. 6. From the time when the steamship was observed, as above stated, she was watched by those in charge of the schooner, and the schooner was kept close-hauled upon her course. The steamship was also kept upon her course, with- out slacking speed or stopping, until the vessels were only a few lengths apart and a collision was imminent, when the peak of her mainsail was lowered, her engines slowed and stopped, and an effort made to pass to leeward of the schooner, but without success. 7. After the steamship was within a few lengths of the schooner and a collision was imminent, the captain of the schooner attempted to avoid the impending collision, or lessen its force by porting the helm of the schooner, but after putting the schooner's wheel only about two spokes to port, he was 208 Steamship Co. v. Mount. [Oct. Term, Opinion of the court. driven away therefrom by the nearer and dangerous approach of the steamship, which struck the schooner on her starboard quarter, in consequence of which the schooner sank almost immediately, with her valuable cargo. 8. The schooner kept her course until the steamship was in close proximity, and the collision was imminent, and if there was any change in the schooner's course after that, and before the collision actually took place, it was very slight, had no eft'ect in producing the collision, and was made in extremis. Two suits were originally commenced in the District Court, one on behalf of the master and the owners of the schooner, the other on behalf of certain of the seamen. The value of the vessel was iixed by an appraisement in both suits at forty thousand dollars, and upon the execution and tiling of a stip- ulation for that amount the vessel was discharged from custody, Before the trial in the District Cour|; the Sun Mutual In- surance Company and the Union Mutual Insurance Company were, on their own petition, and with the consent of the proc- tors for the libellants and claimants, admitted as co-libellants in the cause and to share in the beneijt of the stipulation. Before the entry of the final decree in the District Court the two original suits were, upon motion of the claimants, consoli- dated into one suit. The linal decree in the District Court, which held the steam- ship alone in fault for the collision, was entered on the" 21st day of October, 1876. C. Van Savtvoord, for appellants. Beebe, Wilcox ^ Eohbs and Evarts, Southmaijd ^ Choate, for the difterent libellants, appellees. Waite, C. J. — Upon the facts, as found, the judgment below was clearly right. The vessels were on the ocean, and there was nothing to interfere with their navigation. The weather was clear and tine, and the time about 10 o'clock in the fore- noon. The schooner saw the steamer when six or seven miles 1880.] Steamship Co. y. Mount. S99 Opinion of the court. away, and from that time steadily kept lier course until tlie collision was imminent. While there is no special finding that the steamer saw the schooner, it would have been a gross fault on her part if she did not; and both in the answer and in the requests for finding, presented to the court below, it is stated that the schooner was seen when three miles off. From that time until the collision the vessels were sailing on courses which crossed each other, so as to involve a. risk of collision. Under* these circumstances it was the imperative duty of the steamer to keep out of the way, and of the schooner not to embarrass the steamer by any cliange of course. The schoofii- er, mindM of her duty, did hold her course, but the steamer did not avoid a collision. The theory of the steamer seems to have been that, as the schooner was bound for New York, she should have steered more to the eastward than she did, and that the steamer had the right to assume she would do so aiid act accordingly. This is clearly wrong. The steamer was bound to govern herself by what the schooner actually did, not by what might have been done. When more than six miles from the steamer, and from twenty to thirty minutes before the collision, the schooner was close-hauled and on a course which she held steadily all the time. , At that distance from the steamer she had the right to choose her own way of getting to her port of destination, and the steamer could not require her to change it. As the responsibility of avoiding the collision was on the steamer, it was a fault in her to get so close tliat a slight change in the course of the schooner, in the midst of what seemed to be im- minent peril, would bring the vessels together. It is clear to us that those on board the steamer were deceived as ta the movements of the schooner by the leeway they themseliyct* were making, and that they expected to pass to the wiudwainl when they should have shaped their course to' go to the leeward. The only remaining questions are those which arise- ou. the bill of exceptions. In the case of The Abbotsford, &8>U." S-., 445, we decided that on an appeal we could only pass^Oii Ba«k. 14 210 Hentig v. Page. [Oct. Term, statement of llie case. rulings of the court below as might properly be put into a bill of exceptions on the trial of an action at law, and that the find- ings of fact sent up with the record were conclusive here. If there are errors in these findings they can only be corrected at the proper time and in the proper way by the court below. We are no longer required to weigh evidence. On an appeal the findings have all the efl'ect of the verdict of a jary in actions at law. This must be accepted as our final conclusion as to the effect of the act of 1875 (18 Stats., 315) in this particular. The bill of exceptions in this case contains all the evidence, and a request made of the court by the appellant to find the facts in a certain wa}'. From this request it appea'rs that the only material controversy about the facts was as to whether the schooner negligently changed her course so as to cross the bows of the steamer and bring on the collision. The court, after considering the evidence, which was, to some extent, conflict- ing, found that she did not. This disposed of .the case and is conclusive on us. All the exceptions taken have their founda- tion in this finding, and relate to questions of law which would have arisen if that had been the other way. As we cannot dis- turb the finding, we cannot consider the exceptions. It follows ,that the judgment must be affirmed, and it is consequently so ordered. Affirmed. A. J. Hentig v. H. J. Page, receiver, &c., and B. F. Simp- son, U. S. MARSHAL FOR THE DISTRICT OF KANSAS. A decree disniissiiig a petition of ti;iiaiits of property wliieli pi-ayed tliat a receiver of the court granting the decree be enjoined from di.epos- sessing them by a writ of assistance, is not a linal decree, and tliere- fore not reviewable. Appeal from the Circuit Court of the United States for the District of Kansas. Motion to dismiss. 1880.] Hentig v. Page. 211 Opinion of the court. C. A. Sperry, for appellant. C. M. Foster and G. C. Clemens, for appellees. Waite, C. J.— Ovi the 26th day of October, 1877, Mary A. Smith, administratrix de bonis no7i of Julius C. "Wright, tiled her bill in the Circuit Court for the District of Kansas against Daniel M. Adams and others to foreclose a mortgage made by Adams and wife on certain lands in Shawnee county, Kansas. On the 3d of September, 1878, the lands covered by the mort- gage were sold by the treasurer of the county to the appellant for $64.92, being the full amount of tax, penalty, and charges due on the land for the year 1877. At the time of the sale there was delivered to the purchaser a certificate, which set forth the sale and stated that he would be entitled to a deed for the land on the 4th of September, 1881, unless redeemed in accordance with the provisions of law prior to that time. On the 8th of February, 1879, Hentig, the purchaser, leased the premises to C. E. and W. K. Gillan for one year from the 1st of March, 1879, at a rent of $200, and put them in pos- session. The certificate of tax Sale was recorded November 18, 1878, and the taxes of 1879, amounting to $67.80, were paid by Hentig, March 10, 1879. On the 4th of June, 1879, the court having become satisfied that the property was inadequate security for the mortgage debt, and that Adams, the debtor, was insolvent, appointed H. J. Page receiver of the rents and profits of the property, and ordered that "all persons in possession of such premises, whether parties to this cause, tenants under any of them, or persons who have come into possession pending these proceed- ings," j-ield up possession to tha receiver on demand. On the 10th of July the receiver reported to the court that he found the Gillans in possession, who refused to surrender, claiming that they were in under a lease from Hentig, having paid $150 of their rent, and owing only $50 more, which was not due. The court thereupon issued to the marshal a writ of assistance, 212 Hentis v. Page. [Oct. Term, Opinion of the court. directing him to eject from the premises the persons described in the original order appointing the receiver and put the re- ceiver in possession. On the 12th of July an order in the suit was entered in the order book directing the complainant and receiver to shov? cause before the district judge, at his chambers, on the 18th, why the writ of assistance should not be revoked, and directing that in the meantime nothing be done under the writ. At the time named the appellant was permitted to iile in the suit what was denominated a substituted petition. This petition was addressed to the " Hon. C. G. Foster, one of the judges of the court," and set forth the claim of the appellant under the tax title, with the lease to the Gillans, and concluded as follows: "Wherefore your petitioners pray that the said marshal may be enjoined from further proceeding in the execu- tion of such writ, and that upon the hearing said writ may be revoked by an order of this court, and that your petitioner may have such other and further relief as to equity may seem meet. And as in duty bound will ever pray, &;c." This petition was thereupon heard, and an order entered in the order book as follows: "Mary A. Smith, Adm'x, &c., Corinplaiuant, j V. S 2055. Daniel M. Adams et al., Defendants. ) "At Chambers, July 18, 1879. "Now comes the complainant and receiver, II. J. Page, by G. C. Clemens, their solicitor, and A. J. Hentig, by Hentig& Sperry, her solicitors, and thereupon came on to be heard the matter of the petition of A. J. Hentig to enjoin the marshal from further proceeding in 'the execution of the wi'it of assist- ance issued herein to put said receiver into possession of the property described in the bill of complaint and decree herein, and to revoke said writ, and was argued by counsel ; on con- sideration whereof it is now here ordered that said petition be and is overruled and denied. " From this order and ruling said A. J. Hentig prays an appeal to the Supreme Court of the United States, which is 1880.] Hentig v. Page. 213 Opinion of the court. allowed, and the bond in appeal fixed at $300, to act as a supersedeas." On the 22d of July the required bond was given and the appeal perfected. The case has been submitted under the twen- tieth rule, but the submission was accompanied by a motion of the appellee to dismiss for want of jurisdiction. We think the motion to dismiss must be granted. The order appealed from is not a final decree in a " case of equity." The petition on which the order was made was in reality notliing more than a motion in the original suit by the appel- lant, with leave of the court, for a recall of the writ of assist- ance. It certainly is not a bill in equity, for it names no parties defendant and prays no process. It is addressed to one of the judges of the court, and not to the judges or to the court, and the appellees were brought in on a rule to show cause in the pending suit, and not by an original writ. Al- though the judge in rendering his decision gav'e as a reason for refusing to grant the petition that the tax certificate alone, before the expiration of the time of redemption, vested no title in the purchaser, the order as made settled no such ques- tion. The efi'ect of what was done was simply to leave the writ of assistance in force. The rights of tlie parties were not changed in any particular. , The appellant was still no party to the suit, and slie could resist the writ as well after the order as before. She did not by her petition submit herself to the jurisdiction of the court in the cause. Her application was in the nature of a suggestion to the court that the writ had been improvidently issued, and, therefore, should be withdrawn. She has still all the legal and equitable remedies to enforce her original i-ights that she ever had. If the writ would not justify the marshal in putting her tenants out of possession when it was issued, it will not now. If she could by a suit in equity enjoin the execution of the writ against her tenants before her motion was made, slie could afterwards. It follows that the appeal must be dismissed, and it is so ordered. Dismissed. 214 Hill v. IIarbing. [Oct. Term, Opinion of the court. George W. Hill v. George F. Harding, Lawrence J. J. NissEN, AND William H. Barnum. A bankrupt may pi-oseciite in liis own name a writ of error to a jnclgment rendered against liim after liis adjudicalion in bankruptcy. Error to the Supreme Court of the State of Illinois. This was a motion to dismiss the writ of error on the ground that the bankrupt had obtained a discharge from the judgment to which he was prosecuting the writ. The proof was that the judgment was rendered eleven days after his adjudication in bankruptcy. The suit had been instituted before the petition in bankruptcy was filed. George W. Brandt, for plaintifl" in error. Adolph Moses, for defendants in error. Waitb, C. J. — As the judgment in this case was rendered after Hill's adjudication in bankruptcy, we think he may prose- cute a writ of error in his own name. We will not undertake to decide, on a motion to dismiss, whether his discharge operates to release him from all liability gr(fwing out of the judgment. The motions are, therefore, overruled; but if the assignee shall be of the opinion that any of the questions involved are such as may affect the estate of the bankrupt, he will be heard on such questions by his counsel, in connection with the plain* tiff in error, when the case comes up for argument, if he de- sires. 1880.] Smklting and Refining Co. v. Kemp. 215 Opinion of the court. The St. Louis Smelting and Refining Company v. Thomas Kemp and William Nuttall. A motion to set aside a submission marlo iindei' tlie twi-iitietli rule ol the Supreme Conrt and restore ii cause to its place on the docket, granted. Erroe to the Circuit Court of the United States for the Dis- trict of Colorado. This motion was made by Willis Drummond and Robert H. Bradford, counsel for Sarah Ray, the defendant in error in case No. 737, and assisted by A. T. Britton and Walter H. Smith, counsel for the plaintiff in error in cases Nos. 736 and 737. Waite, C. J. — The showing made on this motion satisfies us that this case and the one which follows it on the docket, No. 737, were brought here for a determination of the ques- tions on which the title of the plaintiff in error to the St. Louis Smelting and Refining Company's addition to Lead villa de- pends; that the decision of these suits will dispose of a large number of others now pending in the court below; that when the suits were begun below all the defendants united in the employment of counsel to present their defense, and contrib- uted to a common fund for the payment of the expenses of the litigation ; that since these cases, Nos. 736 and 737, have been docketed here, the parties to No. 736 have come to an amicable understanding in respect to the subject-matter of their partic- ular litigation, under which this submission has been made, through new counsel employed in behalf of the defendants- in error, and without the concurrence of those interested in No. 737 and the suits still pending below. The questions involved are important. Under these circumstances we think we ought not to accept the submission of the cause against the wishes of those collateral!}' interested in the decision that may be made. The submission is therefore set aside, and the cause restoredl to its place on the docket. 316 BucHAlirAN V. City of Litchfield. ' [Oct. Term,' Opinion of tiie court. Alexander Buchanan v. The City of Litchfield. 1. Tlie CoiiPlitiitioirof Illinois forliids mmiicipal corpoi-iitioiis from incur-' . ring an indebtedness exceeding five per ceiit. of its assessed valna- tion, to be ascertained b.v tlie last assessment for State and county taxes previous to incurring the indebtedness. Wliere Ijonds were issued i-eciting that they were issncd under the State statute of April . 15, 3873, (authorizing cities and towns to construct and miiintain water-works,) lint containing no recital that they were issued in pur- suance of the State Constitution, or that tlie circumstances antlioi-iz- iug tlieir issue had existed, th(! city is not estppped, even as against a bona-flde'Uo\di'\\ from proving that the bonds brouglit her iudebted- i.iess above the constitutional limir, and were unauthorized. « 2. The best evidence of this is the State and county assessment. Error to the Circuit Court of the Uiiited States for tlie Southern District of Illinois. . The recital in the bonds from which the coupons sued on were taken is as follows : , "This bond is issued under authority of an act of the Gen- eral Assembly. of the State of Illiiiois, entitled 'An act author- izing cities, incorporated towns, and villages to construct and maintain water-works,' approved Api'il 15, 1873, and in pur- suance of an ordinance of the said city of Litchfield, numbered 184, and entitled 'An ordhiance to provide for the issuing of bonds for the construction of the Litchfield water-works,' ap- proved December 4, 1873." John M. Palmer and Frank Morrison, for' plaintiff in error. A. L. Knapp, for defendant in error. Harlan, J. — ^The present action is by the plaintiff, in error to recover the amount of unpaid interest coupons attached to •certain bonds issued by the city of Litchfield, a municipal cor- poration in the State of Illinois, The declaration, besides a count upon the coupons themselves, coiitains the usual counts for money lent and advanced by plaintiff" to the city and for 1,880.] Buchanan v. Cut of Litchfield. ' 217 Opinion of tlie court. money had and received by it to his use. The city defended the action upon the ground that the bonds were issued in vio- lation of the Constitution of the State, and, consequently, im- posed upon it no liability. "The circuit judge being of opinion that the law was with the city, judgment was rendered in its favor. The case is now before us upon a certiticate of division between the circuit and district judges as to certain questions occurring on the trial, and the general import of which will appear in the course of this opinion. . In pursuance of an ordinance of the city council, the legis- lative authority of the city, its mayor and clerk executed and issued on the first day of January', 1874, one hundred bonds (with interest coupons attached) of the denomination of $-500 each, payable twenty years thereafter, at the Nassau Bank, in ]^ew York, with semi-annual interest thereon, at the rate of ten per centum per annum, payable at the same bank. . The ordinance directed the bonds to be used in borrowing money for the construction and maintenance of a system of water-works for the benefit of the people of the city. They were so used. Each bond, signed by the mayor and attested by the clerk under the corporate seal of the citj', contained this recital : " This bond is issued under authority of an act of the General Assembly of th(3 State of Illinois, entitled 'An act authoi-izing cities, incorporated towns, and villages to construct and main- tain water-works,' approved April 15, 1873, and in pursuance of an ordinance of the said city of Litchfield, No. 184, and en- titled 'An ordinance to provide for the issuing of bonds for the construction of the Litchfield water-works,' approved De- ceiiiber 4, 1873." The act of April 15, 1873, on which the city ordinance was founded, was a general statute conferring authority upon all cities, incorporated towns, and villages in the State to erect, construct, and maintain a system of water-works, for the pur- poses of tire protection and for the use of the inhabitants, re- spectively, of such municipal corporations, which, to that end, 218 Buchanan v. City of Litchfield. [Oct. Term, Opinion of the court. were invested with power to appropriate and borrow money and collect a general tax in the same manner as other munici- pal taxes may be levied and collected. Neither the statutes of April 15, 1873, nor the ordinance of the city, made any reference to the twelfth section of article 9 of the State Constitution, adopted in the year 1870. That section declares that " no county, city, town, township, school district, or other municipal corporatioh shall be allowed to become indebted in any manner, or for any purpose, to an amount, including existing indebtedness, in the aggregate ex- ceeding live per centum on the value of taxable property therein, to be ascertained by the last assessment for State and county taxes previous to incurring such indebtedness." The property of the city, as assessed for State and county taxes for the year 1873, was proved, on the trial, to have been $1,400,000, while its indebtedness, on the first day of January, 1874, excluding the water-bonds on that day issued, was shown to have been |70,000. In other words, when the bonds were executed and issued the city was already indebted in a sum equal to five per centum on the value of taxable property in the city, as ascertained by the last assessment for State and county taxes — an amount, it will be observed, in excess of the constitutional limit of municipal indebtedness. The first and most important of the certified questions in- volves the construction of the foregoing section and article of the State Constitution. The words employed are too explicit to leave any doubt as to the object of the constitutional restriction upon municipal indebtedness. The purpose of its framers, beyond all ques- tion, was to withhold from the legislative department the power to confer upon municipal corporations authority to incur indebtedness in excess of a prescribed amount. The authority, therefore, conferred by the act of April 15, 1873, to incur in- debtedness in the construction and maintenance of a system of water-works, could have been lawfully exercised by a city, incorporated town, or village, only when its liabilities, increased 1880.] Buchanan v. City oe Litchfield. 219 Opinion of the court. by any proposed new indebtedness, would be within the con- stitutional limit. No legislation could confer upon a municipal corporation authority to contract indebtedness which the Con- stitution expressly declared it should not be allowed to incur. (Law, &c., V. People, 87 111., 392, and Fuller v. City of Chicago, 89 111 , 294.) If, therefore, it appears, by evidence, of which the city may rightfully avail itself, as against a bona-fide hoh^er for value of the coupons in suit, that the bonds issued January 1, 1874, created an indebtedness in excess of the amount to which municipal indebtedness is restricted bj- the Constitution, there would seem to be no escape from the conclusion that the bonds are void for the want of legal authority to issue them at the time they were issued. To the evidence upon which the city relied as showing such want of authority, objections were interposed by the plaintiff, who insisted that it was not admissible against him, as a bona- fide holder of the coupons in suit. That evidence was made the basis of important findings of fact, and is, in substance — That the citj' of Litchfield was incorporated under a special law, which defines its boundaries ; that there was no assess- ment made of the taxable property within its limits for the year 1873, separately, but that the city is within the limits of two municipal townships organized under the township organ- ization laws of the State, one called North Litchfield and the other South Litchfield, each six miles square, and that the tax- able property in' the city was assessed for State and county taxes in the township in which it was situated and to which it belonged ; that the property of the city, as assessed for State and county taxes for the year 1873, was, as already stated, $1,400,000, which valuation was ascertained by the following method : The assessors of North and South Litchfield returned to the clerk of the County Court the lists and value of the property assessed for taxation for the year 1873, in said townships re- 220 Buchanan v. City of Litchfield. [Oct. Term, Opinion of the court. spectivelj, whicli lists contained a description of all the lands,' lots, and other real estate in said township, with the proper val- uation opposite each tract or lot. With these lists and the plat of the city before him, the clerk was able to ascertain the description and value of all the real estate in the city, and by footing the value of the several lands and lots found within the city limits the aggregate value of all the real estate of the city was ascertained for 1873. , That by another special law the city of Litchtiekl is made one sdiool district, called the Litchfield school district; that it is a part of the legal duty of the township to note opposite the name of each owner of personal property assessed for tax- ation the school district in which he resides ; that the assessor of ISTorth and South Litchiield for the year 1873 noted oppo- site the names of the owners of personal property in their township residing within the city limits that they resided in Litchfield school district, and the assessed value of the personal property of the city of Litchfield was ascertained by comput- ing the value of all the personal property assessed for taxation in the school district. That railroad property and property of corporations was assessed by the State board of equalization, and the whole value of these species of property lying in Montgomery county, in which the city of Litchfield is situated, was certified by the auditor to tlie county clerk, and the proportions taxable in Litchfield was ascertained by the clerk. That the assessment thus made by the town assessor of the towns of North and South Litchfield was the only assessment made or authorized by law to be made of the property situ- ated in the city of Litchfield for State and county taxes for the year 1873, and which assessment for the purposes aforesaid was the last assessment for State and county taxes previous to the issuing and making of the bonds ; that by compiling the assessments thus made the exact amount of the value of tax- able property in said city of Litchfield for the year 1873, as 1880.] Buchanan v. City of Litchfield. 221 Opinion of the court. assessed for State and county taxes, should be, and is ascer- tained to be, the sum of $1,400,000. And it was proved, as ah-eady stated, that the debt of the city of Litcliiield on and before the 1st of January, 1874, ex- clusive of the water-bonds, was |70,000. This evidence, introduced for the purpose of showing the value of taxable property within the limits of the city, and the extent of its indebtedness, wlien these water-bonds were issued, is not, in our opinion, liable to any serious objection. It seemed to be the best proof upon those subjects that the law famished. In determining whether the constitutional limit of indebted- ness has been exceeded by a municipal corporation, an inquiry would always be necessary as to the amount of taxable prop- erty within its boundaries. Such inquiry would be solved, not by information derived from individual otRcers of the munici- pality, but only in the mode prescribed in the Constitution, that is, by reference to the last assessment for State and county taxes for the year preceding the issuing of the bonds. That test was applied in this case. Had there been, under or by competent legal authority, an assessment for that jeav of tax- able property within the city, separately from all other prop- ertj' in. the county or township to which the city belonged, such assessment would u.ndoubtedly have been controlling. But there was no such official assessment in fact, or required by- law. There were, however, official assessments for State and county taxes for 1873, embracing all taxable property within the county and townships of which the city formed a part, and from which, in connection with the map of the city, could be readily ascertained the location and taxable value of all prop- erty within the corporate limits of the city for that year. The purchaser of the bonds- was certainly bound to take notice not only of the constitutional limitation upon municipal indebted- ness, but of such facts as the authorized official assessments disclosed concerning the valuation of taxable property within the city for the year 1873. But ill what way was the purchaser to ascertain the extent 222 Buchanan v. City of Litchfield. [Oct. Term, Opinion of the court. of the city's indebtedness existing at the time the bonds in ques- tion were issued ? The extent of that indebtedness was a fact peculiarly within the knowledge of the constituted authorities of the city. It was necessarily left, both by the Constitution and the statute of 3873, to their examination and determina- tion, under the constitutional injunction, however, that no mu- nicipal corporation should exceed the prescribed amount of indebtedness. It was, nevertheless, a fact which, so far as we are advised by the record, could not at all times and absolutely, or with reasonable certainty, be ascertained from any official documents to which the public had access. A like difficulty, perhaps, would arise in the case of any municipal corporation possessing the general power of raising money, by taxation and otherwise, to carry on local government. Its liabilities might frequently vary in their aggregate aniount, and at par- ticular periods might be of diti'erent kinds, some iixed and absolute, while others would be contingent upon events there- after to happen. These considerations were, doubtless, present in the minds as well of those who framed the Constitution as of those who passed the statute of 1873. As, therefore, neither the Constitution nor the statute pre- scribed any rule or test by which persons contracting with mu- nicipal corporations should ascertain the extent of their " exist- ing indebtedness," it would seem that if the bonds in question had contained recitals which, upon any fair construction, amounted to a representation upon the part of the constituted authorities of the city that the requirements of the Constitution were met — that is, that the city's indebtedness, increased by the amount of the bonds in question, was within the constitutional limit — then the citj', under the decisions of this court, might have been estopped from disputing the truth of such represen- tations as against a bona-Jide holder of its bonds. The case might then, perhaps, have been brought within the rule an- nounced by this court in Town of Coloma u. Eaves, 92 U. S., 490, in which case we said, and now repeat, that " where legis- lative authority has been given to a municipality, or to its offi- 1880.] Buchanan v. City of Litchfield. 223 Opinion of the court. cers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been complied with, their recital that it has been, made on the bonds issued by them and held by a bona-fide purchaser, is conclusive of the fact and binding upon the municipality; for the recital is itself a decis- ion of the fact by the appointed tribunal." So, in the more recent case of Orleans v. Pratt, 99 U. S., 682, it was said that " where the bonds on their face recite the circumstances lohich bring them loithin the power, the corporation is estopped to deny the truth of the recital." The cases cited by counsel for the plaintiff do not assert any diii'erent doctrines, as will be seen from an examination of those chiefly relied upon. In Knox v. Aspinwall, 21 How., 542, which was a case of. municipal subscription of stock in a railroad company, the statute upon which the subscription there purported to rest made the existence of certain facts essential to the exercise of authority to make the subscription and issue bonds therefor. The bonds upon their face, how- ever, recited that they were issued in pursuance of the statute, which prescribed the conditions precedent to any subscription, and, therefore, the court said they imported a compliance with the law under which they were issued. It was conse- quently ruled that the purchaser was not bound to look further for evidence of a compliance with the condition annexed to the grant of the power. In Kennicott v. Supervisors, 16 Wall., 464, the rule was thus stated: "If an election or other fact is required to author- ize the issue of the bonds of a nmnicipal corporation, and if the result of that election, or the existence of that fact, is by law to be ascertained and declared by any judge, officer, or tribunal, and that judge, officer, or tribunal, on behalf of the corporation, executes or issues the bonds, with a recital that the 224 Buchanan v. City of Litchfield. [Oct. Term, Opinion of the court. election has been held, or that the fact exists or has taken place, this will be sntKcient evidence of the fact to all bona-fde holders of the bonds." In County of Moultrie v. Savings Bank, 92 U. S., 631, the validity of the bonds there in suit was questioned upon the ground that certain precedent conditions imposed by statute had not been complied with. The bonds, however, recited their issue to be "in conformity to the provisions" of the statute which gave the authority to issue them. So in Marcy v. Township of Oswego, 92 U. S., 637, where the statute author- izing a munioipal subscription, with the sanction of three-fifths of the voters interested, and the issue of bonds in payment thereof, required particular facts to exist and certain acts to be performed before the right to make the subscription and to issue bonds in discharge thereof could be exercised. The stat- ute contained, amongst other things, a proviso to the effect that the amount of bonds sold by the township should not exceed such a sura as would require a levy of more than one per cent, per annum on the taxable property of the township to pay the yearly interest. It appeared that the statute had not, in some of these respects, been complied with; that is, that the conditions had not been performed which the statute required before any subscription should be made or bonds issued. But, adhering to the rule announced in Town of Coloma V. Eaves, the defense was overruled in favor of a bona- flde holder for value, because of the recital in the bonds that their issue was "bij virtue of and in accordance with" the stat- ute, and "in pursuance of and in accordance ivith the vote of three-fifths of the lesral voters of the townshiu." Keturning to the case in hand, it will be observed that the bonds issued by the city of Litchiield contain no recital what- ever of the circumstances which, under the Constitution of the State, must have existed before the city could legally incur the indebtedness for which the bonds were issued. They purport, it is true, to be issued under the authority of the act of April 15, 1873, and in pursuance of the ordinance of the city based 1880.] Buchanan v. City op Litchfield. 225 Opinion of the court. upon that statute. But that statute does not expressly restrict the exercise of the power to erect and maintain a system of works to cases in which the aggregate indebtedness of the city was within the limit which the Constitution declared no mu- nicipal corporation should exceed. Nor does the city ordinance recite or state, even in general terms, that the proposed indebt- edness was incurred in pursuance of or in accordance with the Constitution of the State, or under the circumstances which permitted the issue of the bonds. Consequently a recital that the bonds were,issued under the authority of the statute, and in pursuance of the city ordinance, did not necessarily import a compliance with the Constitution. Had the bonds made the additional recital that they were issued in accordance with the Constitution, or had the ordinance stated, in any form, that the proposed indebtedness was within the constitutional limit, or had the statute restricted the exercise of the authority there- in conferred to those municipal corporations whose indebted- ness did not, at the time, exceed the constitutional limit, there would have been ground for holding that the city could not, as against the plaintiff, dispute the fair inference to be drawn from such recital or statement as to the extent of its existing indebtedness. Any different conclusion from that indicated would extend the doctrines of this court upon the subject of municipal bonds farther than would be consistent with I'eason and sound policy, and farther than we are now wilHng to go. The pres- ent action cannot be maintained unless we should hold that the mere fact that the bonds ivere issued, witliout any recitals of the circumstances bringing them within the limit lixed by the Constitution, was in itself conclusive proof, in favor of a bona-fide holder, that the circumstances existed which authorized them to be issued. We cannot so hold. Our attention is called by counsel to the exceeding hardship of this case upon those whose money, it is alleged, has supplied the city of Litchfield with a system of water-works, the benefits of which are daily enjoyed by its inhabitants. The defense is 15 226 Heryford v. Davis. [Oct. Terni, Statement of the case. characterized as fraudulent and dishonest. Waiving all con- siderations of the case in its moral aspects, it is only necessary to say that the settled principles of law cannot, with safety to the public, be disregarded in order to remedy the hardships of special cases. Whether the city is under a legal obligation to make resti- tution of the money obtained without authority of law — that is, to refund to the proper party or parties such sums as were actually recei\"ed by its authorized agents or officers upon the sale of the bonds — is not a question arising ,in the present action, which is only for the recovery of the stipulated interest upon such bonds. Upon this point it is not proper at this time, or in this form of action, to express an opinion. What we have said constitutes a sufficient answer to all of the questions certified to us, and requires an affirmance of the judgment. It is so ordered. Affirmed. WnjiiAM Heryford and James W. Lewis v. Henry H. Davis, SHERIFF OF ChARITON COUNTY, SUING TO THE USB OF ThE Jackson and Sharp Company. ditioiial Siilc, and tliorefore held to require i-enistiy, niidcv thu Missouri statute, to protect the property tliereiii mentioned fi-om the creditors o£ the grantee. Erroji to the Circuit Court of the United States for the WestM'n District of Missouri. This is an action under the statutes of Missouri by Henry H. Davis, sherifi", &c., for the use of the Jackson and Sharp Conrpany, upon a bond of indemnity given by the defendants to said Davis as sheriff, &c". The copies of the judgment, execution, and bond of indem- nity are omitted in the special finding, as they are in the usual form. 1880.] IIeryfoed v. Davis. 227 Statement of the case. The cause wtis submitted to the court, and a special finding of facts, with conclusion of law and certificate of division of opinion therein, was filed by the court and ordered to be made part of the record, as follows: 1st. That on and prior to the 23d day of December, 1873, the date of the contract hereinafter rafentioned and set out, the plaintitt", the Jackson and Sharp Companj', was a corporation incorporated under and by the laws of the State of Delaware, having its office and doing business at the city of Wilmington, in the State of Delaware, and engaged in manufacturing rail- road cars; that the Keokuk and Kansas City Railroad Com- pany, a corporation incorporated under and by the laws of the State of Missouri, and engaged in the construction of a railroad through the county of Chariton and other counties in the State of Missouri. 2d. That on the 5th day of January, 1874, the plaintiff de- livered to said railroad company, at Salisburj', Missouri, to be used on its railroad in the State of Missouri, one passenger car J^o. 1, and one mail, baggage, and express car, also No. 1, let- tered with the name of the aforesaid railroad company, under and pursuant to the terms and conditions of a written contract dated the 23d day of December, 1873, as follows, to wit: 3d. Articles of agreement made and entered into this 23d day of December, A. D. 1873, by and between the Jackson and Sharp Company, a corporation of the State of Delaware, located in the citj' of Wilmington, State aforesaid, of the first part, and the Keokuk and Kansas City Railway Company of Missouri, with office at Salisbury, State aforesaid, of the second part, witnesseth: That the parties of the first part have constructed one pas- senger car 'No. 1, and one mail, baggage, and express car, also No. 1, and lettered with the name of the aforesaid railway com- pany, to be used on the railroad'of the party of the second part for hire. It is therefore agreed as follows: The said party of the first hereby agree to loan to the said party of the second part, for hire, the said passenger and mail, baggage, and express cars 228 Heryfoed v. Davis. [Oct. Term, Statement of the case. for the space of four months from the date of this agreement, to be used oti the said Keokuk aud Kansas City Eail way .Com- pany, and to deliver the same to the party of the second part at Wilmington, Delaware, to be transported to the said railway company at Salisbury, Missouri, at the expense and risk of the party of the second part, to be used on the said road for hire as aforesaid, and not elsewhere without the written consent of the party of the first part. The party of the first part have received from the party of the second part three promissory notes of the party of the sec ■ end part, to the order of the "Western Construction Company, and indorsed by A. C. Vandewater, president, F. A. Jones, John Foggett, A. C. Vandewater, G. P. Lawrence, John C. Noyes, and J. W. Morse, together with thirteen of the first-mortgage bonds of said railway company of $1,000 each, as collaterals for said notes; two of eaid notes are dated November 14, 1873, one sixty days and the other four months, each for the sum of 11,919.20, each with interest at the rate of 10 per cent, per annum after date, and paj-able at the Mercantile Bank of St. Louis, Missouri ; the other of said notes is of date of December 15, 1873, four months, and for the sum of |2,588, and without, interest, and is made payable at the National Bank of Com- merce, New York ; which said three notes the said party of the first part are to hold as collateral security and to collect the same at maturity, and to hold the proceeds, when collected, for the safe custody and return to the party of the first part, when de- manded, of the said passenger and mail, baggage, and express cars delivered to the party of the second part for the term of four months, for hire, as aforesaid, the said party of the second part to hav.e the right aud privilege to purchase at any time the said passenger and mail, baggage, and express cars, within the period of four months from aforesaid date, upon the payment to the party of the first part, in cash, the sum of $6,338.40, with interest at the rate of 10 per cent, per annum from the date of the agreement until day of payment; but until such payment is made in full the said party of the second part shall have no 1880.] Hertford v. Davis. 229 Statement of the ca?e. right, title, claim, or interest in and to the said passenger and mail, baggage, and express cars, except as to their use or hire, nor anj- right or authority in any way to dispose of, hire, sell, mortgage, or pledge the same, but that the said cars are and shall remain the property of the party of the first part, to be accounted for by the party of the second part to the party of lirst part, and to be redelivered to the party of the first part when demanded, in default of the payment of the aforesaid sum of $6,338.40, with interest as aforesaid, hereinbefore described, anything to the contrary herein contained notwithstanding. It also agreed that should there be any default in the pay- ment of any one of the above-described three promissory notes at the time and on the day that they or either of them respect- ively become due and payable, and the party of the first part shall elect to take into their own possession the above-described passenger and mail, baggage, and express cars, delivered as aforesaid, the several sums which may have been collected on account of the above-described promissory notes are to be re- tained by the party of the first part for their own use, and the passenger and the mail, baggage, and express ears are to be sold by the party of the first part at public or private sale, and of the net amount realized from said sale so much as should be needed to make the amount remaining due and iinpaid on the above-described promissory notes, with the interest that may have accrued on the same, shall be retained by the said party of the first part, and the surplus, if any, shall be paid over to the said party of the second part. And the said party of the first part thereby agree with the said party of the second part that if all the said three promis- sory notes are paid on the day and at the time that they, the said three promissory notes, severally became due and payable according to their terms, tenor, and eiiect, that upon payment of all the said notes having been made without any hinderance or delay whatever, the party of the first part will then relinquish their ownership to the said passenger car and the mail, baggage, and express car, and will give to the party of the secoud part 230 Heryfoed v. Davis. [Oct. Term, Statement of the case. a good and sufficient bill of sale or conveyance for the said cars, and will apply to the payment of the same the proceeds of the above-described promissory notes, interest on notes overdue in any event to belong to the party of the first part. And it is also agreed and understood that if the said notes are paid according to their tenor and effect, that the said partj^ of the first part may retain the money paid upon said notes, and then the said cars shall belong to and be the property of the said party of the second part, and the said party of the first part shall on request relinquish their ownership thereof, and make a bill of sale or conveyance of all their right, title, and interest therein to the said partj' of the second part. In witness whereof the parties have hereto set their names and caused the seal of their respective corporations to be affixed. [SEAL.] Jackson and Sharp Company, JOB H. JACKSON. The Keokuk & Kansas City Railway Co.. By S. H. MELVIjST, President. [SEAL.] ALBERT BLAIR, Secretary. ' 4th. That said cars were brought to Missouri, and were placed upon and used by said railroad company on its railroad in Chariton county, Missouri. 6th. That the noles mentioned in said contract were not paid at maturity, and still remain unpaid ; that on the 4th day of December, 1873, the said plaintift" received thirteen thousand dollars in the first-mortgage bonds of said railroad company as collateral security for the notes mentioned in said contract, for which the said plaintiff executed and delivered its receipt. 6th. That said bonds are yet in the hands of said plaintitt'. 7th. That the defendant in this cause tiled their several liens for materials furnished and labor performed in the construc- tion of said railroad against said railroad company and the Western Construction Company, and recovered judgments in the Circuit Court of Chariton county, Missouri, against said 1880.} Hbryfokd v. Davis. 231 statement of the case. companies, on the 20th day of November, 1874, under and by virtue of the provisions of an act of the General Assembly of the State of Missouri, entitled "An act to protect contractors, sub-contractors, and laborers in their claims against railroad companies or corporations, contractors or sub-contractors," approved March 21, 1873. 8th. That on the 25th day of November, 1874, execution issued out of said court on said several judgments. That the defendant, William Ileryford, prior to the 12tb day of December, 1874, caused H. II. Davis, sheritf of Char- iton county, Missouri, to levy upon and seize, under an execu- tion issued from the Circuit Court of Chariton county, Missouri, in his favor and against the Keokulc and Kansas City Eailway Company and the Western Construction Company, the cars in said contract described. That on the 13th day of December, 1874, the said Jackson and Sharp Company served notice upon said sheritf claiming the said passenger car and mail, baggage, and express car under and by virtue of chapter 55, section 28, page 608, vol. 1, Wagner's Missouri Statutes, title Executions. That said sheriff thereupon gave said Heryford notice of the claim of said Jackson and Sharp Company, who, on the 15th day of December, 1874, executed and tendered his bond of indemnity to the said sheritf, with defendant James W. Lewis as security. That by virtue of the execution aforesaid, and in pursuance of chapter 55, section 58, page 608, vol. 1, Wagner's Missouri Statutes, title Executions, Berry Owens, sheriff of Chariton county, Missouri, on the 1st day of May, 1875, advertised and sold said passenger car and mail, baggage, and express car so levied upon, as hereinbefore stated. That prior to the sale, and after the levy aforesaid, the de- fendants had knowledge of the contract above set out of De- cember 23, 1873. That the plaintiff and the said railway company, in the nego- tiations of the contract aforesaid of December 23, 1873, andi 232 Heryfokd v. Davis. [Oct. Term, opinion of the court. io.the subsequent correspondence and dealings after the exe- cution of the aame, treated and undertook said contract as a conditional sale. That at the date of the execution of the contract aforesaid, Job H. Jackson was the president of the Jackson and Sharp Companj-; S. H. Melvin was president of the Keokuk and Kansas CityEailroad Company; Albert Blair wais secretary of the said K. & K. C. R. W. Co.; John Foggett was the general superintendent of the said K. & K. C. K. W. Co., and that J. W. Morse was auditor of the K. & K. C. R. W. Co. That the contract herein set out has never been acknowl- edged or recorded. That the passenger coach and mail, baggage, and express car were marked and branded at the time they were delivered as described in the contract herein set out. That the value of the cars, at the time of tbe seizure by the sheriff, was |3,800. William Heryford and James W. Leiois, pro se. T. T. Crittenden, for defendant in error. Strong, J. — The correct determination of this case depends altogether upon the construction that must be given to the contract between the Jackson and Sharp Company and the railroad company, against which the defendants below recov- ered their judgment and obtained tbeir execution. If that •conti'act was a mere lease of the cars to the railroad company, or if it was only a conditional sale, which did not pass the •ownership until the condition should be performed, the prop- erty was not subject to levy and sale under execution at the suit of the defendant against the company. But if, on the ■other hand, the title passed by the contract, and what was -reserved by the. Jackson and Sharp Company was a lien or security for the paj-ment of the price^ or what is called some- times a mortgage back to the vendors, the cars were subject to levy and sale as the property of the railroad company. The 1880.] IIeryford v. Davis. 233 Opinion of ihe court. statute of the State of Missouri enacts that " no mortgage or deed of trust of personal property sliall be valid against any other person than the parties thereto, unless possession of the mortgaged or trust property be delivered to and retained by the mortgagee or cestui que trust, or unless the mortgage or deed of trust be acknowledged or proved and recorded in the county in which the mortgagor or grantor resides, in such manner as conveyances of land are, by law, directed to be acknowledged or proved and recorded." (1 Wag. Stats., ch. 35, art. 2, sec. 8.) The plain purpose of this statute was to render secret liens upon personal property ineffectual as against purchasers or creditors. The property in this case was in the possession of tlie railroad company when the levy upon it was made, and the contract under which the company held it was not recorded. "What, then, is the true construction of the contract? The answer to this question is uot to be found in any name which the parties may have given to the instrument, and not alone in any particular provisions it contains, disconnected from all others, but in the ruling intention of the parties, gathered from all the language they have used. It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account. Though the contract industriously and repeatedly spoke of loaning the cars to the railroad company for hire, for four months, and delivering them for use for hire, it is manifest that no mere bailment for hire was intended. !N'o price for the hire was mentioned or alluded to, and in every bailment or letting for hire a price or compensation for the hire is essen- tial. The amount may not be stipulated. It may be a reason- able compensation or a quantum, valebat, but the contract must contemplate payment for the use of the thing let or bailed. Not only was no such payment provided for or required, but all intention to demand it is negatived by the strongest impli- cations. The manufacturing company exacted and took prom- issory notes for the entire selling price of the property, and, in 234 Heeyfokd v. Davis. [Oct. Terra, Opinion of the court. addition thereto, collaterals to a large amount to secure pay- ment of the'notes. The aggregate of the notes was |6,338.4t), two of them for |1,919.20 each, hearing interest from their date at the rate of ten per cent., and the third note being for |2,500. One of these notes fell due only nine days after the cars were delivered. to the railroad company, and both the others before the expiration of four months from the date of the agreement. The notes were to be collected at maturity, and thus it was contemplated that before the end of four months the manufacturing company should have in hand in cash the full value or price of the cars. It is needless to say that all this is totally inconsistent with the idea that the par- ties intended a mere letting or bailment for hire. It appears equally clear to us that the contract was not one for a conditional sale. It is true it said the manufacturing company were to hold the three notes as collateral security, and collect the same at their maturity, and " hold the proceeds, when collected, for the safe custody and return to the party of the first part, when demanded, of said passenger, mail, hag- gage, and express cars, delivered to the party of the second part for the term of four months for hire," "the said party of the second part to have the right and privilege to purchase" the ears "at any time within the said period of four months, upon payment to the party of the first part, in cash, the sum of $6,338.40, with interest at the rate of ten per cent, from the date of the agreement until day of payment; but until sucVi payment is made in full the said party of the second part shall have no right, title, claim, or interest in and to said passenger and mail, baggage, and express cars, except as to their use or hire, nor any right or authority in any way to dispose of, hire, sell, mortgage, or pledge the same, but that the said cars are and shall remain the property of the party of the first part, to be accounted for by the party of the second part to the party of the first part, and to be redelivered to the party of the first part when demanded, in default of the payment of the afore- said sum of 16,338.40, with interest as aforesaid, hereinbefore ' 1880.] Hertford v. Davis. 235 Opinion of the court. described, anything to the contraiy herein contained notwith- standing." If this were all, it would necessarily be held that a condi- tional sale was intended. But it is not all. It is quite un- meaning for parties to a contract to say it shall not amount to a sale, when it contains every element of a sale and trans- mission of ownership. This part of the contract is to be con- strued in connection with the other provisions, so that if possi- ble, or so far as is possible, they all may harmonize. Thus construed, it is quite plain these stipulations were inserted to enable the manufacturing company to enforce payment, not of any rent or hire, but of the selling price of the cars, for which the company took the notes of the railroad company. They were intended as additional security for the payment of the debt the latter company assumed. This is shown most clearly by the other provisions of the contract. The notes became the absolute .property of the vendors. As has been stated, they all fell due within four months, and it was expected they would be paid. The vendors were expressly allowed to collect them at their maturit}', and it was agreed that whatever sums should be collected on account of them should be retained by the vendors for their own use. Ifo part of the money was to be returned to the railroad company in any event, not even if the cai-s should be returned. On the contrary, it was stipulated expressly that if the manu- facturing company should elect to take the cars into their own possession, which they reserved the right to do in case of de- fault of payment of the notes, the property should be sold, and, of the net amount realized from the sale, so much as should be needed to make the amount remaining due and unpaid on .the promissory notes, with the interest that might have accrued thereon, should be retained by the manufacturing company, and the surplus, if any, should be paid over to the railroad company. What was this but treating the notes given for the sum agreed to be the price of the cars as a debt absolute!}' due to 236 Hertford v. Davis. [Oct. Term, opinion of tlie court. the vendors ? What was it but treating the cars as a secu- rity for tiie debt? And why stipulate that the surpUis which might be obtained from the sale of the cars, after taking them back, beyond what was needed to [iay the unpaid part of the debt, should be paid over to the railroad company, if that conipanj" was not the owner of the cars, even while they were in the possession of the other comjpany, and had not, even then, what may be called an equity of redemption ? In view of these provisions, we can come to no other con- clusion than that it was the intention of the parties, manifested by the agreement, the ownership of the cars should pass at once to the railroad company in consideration of their becom- ing debtors for the price. Notwithstanding the ettbrts to cover up the real nature of the contract, its substance was an hy- pothecation of the cars to secure a debt due to the vendors for the price of a sale. The railroad company was not accorded an option to buy or not. They were bound to pay the price, either bj' paying their notes or surrendering the property to be sold in order to make payment. This was in no sense a conditional sale. This giving the property as a security for the payment of a debt is the very essence of a mortgage, which has no existence in a case of conditional sale. It may be added that the notes were given to the vendors before the cars were dehvered. So, also, the collaterals for the notes were taken before the delivery; and when they were taken the president of the manufacturing company acknowl- edged he received them, not as additional securitj^ for the res- toration of the cars at any time thereafter when demanded, but as securit3' for the notes "given in payment" for the cars. This is confirmatory of the construction we have given to the contract. It tends to show that the transaction was a sale by which the ownership passed to the railroad company, the pur- chasers retaining only a lien for the consideration. It follows, from what we have said, that to protect the cars from seizure and sale by virtue of executions against the rail- 1880.] Finch v. The United States. 237 Argument for the appellees. road company, recording the contract was made necessary b}' the statutes of Missouri to which we have referred. The judgment of the Circuit Court is therefore reversed, and the record is remitted with instructions to enter judgment, on the special finding of facts, in favor of the defendants below. Bradley, J. — I dissent from the judgment in this case. I think that, in the absence of express law to the contrary, not only has a man a right to make a conditional sale of his prop- erty, but that this right is not opposed to sound public policy, and should be fairly and liberally dealt with. The present case was, in my opinion, clearly a conditional sale, and nothing else; and the owners of the property had a right to reclaim it on the tern\s contained in the agreement. These terms were fair and just; not involving any forfeiture, but providing for a due allowance for every dollar paid, by requiring a sale of the property if the purchase should not go into effect. Eeversed. Joseph S. Finch and John W. Painter, partners under the name of Joseph 8. Finch & Co., v. The United States. Under tlie act of July 20, 1868, the Commissioner of Internal Revenue was anthoiizecl to adopt and prescnbe for nse siicli insti'nments for ascertaining the strength and quantity of spirits subject to tax as he tlionglit proper. He presci'ibed the use-of the Tice meter, i-eqniiing tlie distillers to pay tlie manufacturers for tliem and to bear all ex- penses connected witli them. They did not worlv pi-operly, and by the act of June 6, 1872, their use was abandoned. The distillers have no right of action against the United States for the money paid for the meters, eitiier on the ground of an implied warranty, or under counts for money paid and money had and received. Appeal from the Court of Claims. Lewis Abraham, for appellants. S. F. Phillips, Solicitor -General, for appellees. 238 Finch v. The United States. [Oct. Term, Opinion of the court. SwAYNE, J. — This is an appeal from the Court of Claims. The case is spread over a large surface in the record, but a vevy condensed statement of the facts will be sufficient for the purposes of this opinion. In the j'ears 1868 and 1869 the appellants were distillers, and had two distilleries in Pittsburg, Pa. The distilleries were designated as I and 4. In October, 1868, the appellants made application in due form to the Commissioner of Internal Eev- enuo for Tice meters for distillery No. l,and at the same time, deposited with the collector of the district in which the distill- eries were situated the sum of $2,050, the price of the meters, to be paid over to the manufacturer when the meters were de- livered to them. The meters were delivered and the money was paid accordingly. These meters were never used, the distillery having ceased to run long before any one went to make the attachment neces- sary to utilize them. In March, 1869, the appellants made a like application for such meters for distillery No. 4, and made a like deposit with the collector of $2,100 to pay for them. They were delivered to the distillers in July, 1869, and' the $2,100 was thereupon paid to the manufacturer. These meters never worked prop- erly. There is no proof that they were tested before they were shipped from the manufactory, nor that any officer of the In- ternal Kevenue Bureau was detailed to attach them, or to test them after their attachment, or that their indications were ever in anywise regarded by the storekeeper in making his daily reports, or by the assessor in making his monthly computation of the products of the distilleries. By the act of July 20, 1868, (15 Stats., ch. 186, p. 125,) the Commissioner, for the prevention and detection of fraud by distillers of spirits, was " authorized to adopt and prescribe for use such hydrometers, saccharometers, weighing and gauging instruments, or other means for ascertaining the quantity, gravity, and producing capacity of any mash, wort, or beer 1880.] Finch v. The United States. 239 Opinion of the court. used, 01' to be used, in the production of spirits, and the strength and quantity of spirits subject to tax," as he might deem proper. Under these provisions orders, regulations, and instructions covering the subject of the meters in every aspect were issued by the Commissioner. They compelled the distillers to buy and pay for Tice meters, as was done in the case in hand, and left them no choice to do otherwise. One of those regulations .was as follows: "Under the provisions of the law the distiller is required to furnish and attach meters at his own expense, and also to furnish all pipes, materials, labor, and facilities necessary to complete such attachment. The first duty of a distiller is, of course, to procure a meter. The manufacturer is not required to furnish the meters on credit, and ought not to be expected to do so. When he ships a meter to a distiller in accordance with the application, the manufacturer is entitled to the pay for it. The law does not require the manufacturer to attach it, but, on the contrary, requires the distiller to attach it at his own expense." Another specified that " the expenses and transportation and attachment of meters, and of changes required to be made in the distillery, are to be paid by the distiller," and "distillers must furnish all lumber and other materials necessary for the attachment of the -meter, and such workmen and assistants as may be required." By a circular of June 8, 1871, the Com- missioner announced substantially that the meters were a fail- ure, and from that time they ceased to be used. By the act of June 6, 1872, (17 Stats., ch. 315, sec. 12, p. 239,) all the provisions of the act of 1868 touching meters were repealed, and the use of meters was thereupon abandoned by- law. Upon the passage of this act the Commissioner issued a circular advising distillers that " all meters attached to distill- eries may be detached," and "that the meters being the prop- erty of the distillers, they will be permitted to dispose of them as they may desire." By this suit the appellants seek to recover from the United 240 Finch v. The United States. [Oct. Term, Opinion of the court. States the aggregate of the $2,050 and |2,100 paid by them for the Tice meters as before mentioned. The appellants insist that there was an implied vvari-anty by the United States that the meters they thus' bought would be effectual for the purposes they were designed to accomplish, and that there being a clear breach of this warranty the United States are liable accordingly. To this there are two answers : 1st. The meters were solely for the benefit of the United States. The appellants had no interest in their working well. If they had any interest in the result, it was in the other direc- tion. The sole object of the meters was to prevent or expose frauds by the distillers. If the meters were efteetual for these purposes, so mucVi the better for the government. If they were a fail- ure, so much the worse. If the distillers were honest the suc- cess of the meters was to them wholly immaterial. If dishon- est, the failure would have helped to make their frauds lucra- tive, while efKciency might have cut otf their fraudulent profits and have subjected them to exposure and punishment. The distillers did not pay out a dollar morg because the meters were a failure, nor would they have paid a dollar less if the tests thus provided had fully answered the expectations of the govern- ment. In either event the pecuniary result to the distillers, if honest in their business, must have been exactlj' the same. The essence of their complaint is that the government found the means lawfully provided to detect their frauds, if they com- mitted any, unavailing, and therefore used none. Their argu- ment impHes that if those means had been effectual, and had been used, they would have been satisfied and their claim could not have arisen. Both the proposition and the argument seem to us to involve a palpable solecism. There is nothing in the facts of which any contract relation, express or implied, between them and the government can be predicated. 1880.] Finch v. The United States. 241 Opinion of the court. 2d. Regulations established pursuant to law made it obliga- tory upon the distillers to procure the meters, if they continued to carry on the business. They were required to buy and pay, and did so. The government neither paid nor agreed to pay anything. The purchase of the meters was an incident and bur- den of the business. The right to engage in the business was not unqualified. It could only be done when authorized by the government in the mode prescribed. No one was com- pelled to procure that authorization, but whoever elected to do so took it necessarily cum onere, and hence has no right to complain of any condition imposed and assented to, or of any- thing resulting from it. Certainly no consequence such as that here in question can constitute a cause of action against the United States, any more than would any other expenditure or any other loss aiising from the business. Nor can there be any valid demand against the United States upon the ground of money paid and expended for their benefit. The meters were bought and paid for by the appellants. They chose to give the order and pay the money, rather than give up the business. The meters were delivered to them by the manufacturer. Thej' owned them, and still own them. The United States never asserted any claim to them. After their use was finally dispensed with by the government the distill- ers had the right, as they still have, to dispose of them accord- ing to their discretion. Upon the passage of the act of 1872 a circular from the Commissioner notified them accordingly. Nor is there any foundation for a claim against the United States for money had and received. It is true their officer received the price of the meters from the appellants, but it was for the manufactui'er and not for the government, and it was paid over accordingly upon the delivery of the metersi The ofiicer was a mere conduit for passing the money from one party to the other. The regulation which prescribed the ar- rangement was intended to secure certainty and promptitude of payment to the manufacturer, and corresponding prompti- tude on his part in the delivery of the meters when ordered. 16 242 lioGERS V. Palmer. [Oct. Term, Opinion of the court. Not a dollar of the funds in question is or ever was in the national treasury. We concur in the views expressed by. the Court of Claims, and their judgment is affirmed. Affirmed. JosiAS M. Rogers, assignee of Andrevs^ Palmer, Jr., a bank- rupt, V. Andrew Palmer, Sr. 1. Oil tlie question whatlier tlie plaiiuiflf iu a iiiclginent ou whicli goods were taken in execntion Icnew of the defenclaut's insolvency and of tlio intent to evade the bankrupt law, the linowledge of plaintiff's attorney i.s tlie knowledge of plaintilF. 2. Where the debtor was son of the plaintiff and actively contributed to having judgment rendered before it could have been done witlioKt SMch aid, this was procuring his goods to be taken on execution within the meaning of the thirty-fifth section of the bankrupt Jaw as mod- ijfied by the act of 1874. Appeal from the Circuit Court of the United States for the District of Minnesota. E. G. Rogers, for appellant. C. K. Bavis, for respondent. "Miller, J. — The appellant, who was complainant below, is .assignee in bankruptcy of Andrew Palmer, Jr., son of the . appellee. The father, having procured a judgment against his son in the District Court of Freeborn county, Minnesota, for the sum ■of |8,433, caused execution to be issued thereon and levied upon the stock of goods of the defendant, who was a merchant in business in the town of Albert Lea, in said county. 'Within a few days thereafter proceedings in bankruptcy were instituted against the son, and he was duly declared a bank- rupt, and the assignee ^brought this suit in chancery for the 1880.] KoGERS V. Palmer. 243 Oiiinion of the court. purpose of [lavhig the leVy declared void as a fraud upon the bankrupt ant, and the goods, or their proceeds, subjected to fid ministration in the bankruptcy proceeding. After answer and is3sue taken, and considerable testimonj', the Circuit Court dismissed the bill, and from that decree appeal is taken to this court. The bankrupt was indebted to his father on three promissory notes of several years' standing, and long overdue, on which payment of interest had been made with tolerable regularity until a year before the bankruptcy. About that time the father, who lived in Wisconsin, visited the son, who lived in Minne- sota, and received a mortgage on some land, but not suiJicient in value to secure the debt. In July, 1875, he again visited his son in Albert Lea, and not long afterwards he sent the notes for collection to Lovely & Parker, attorney's of that place, and they commenced suit by the issue of a summons October 23, 1875, which was served the same daj'. On the 5th of No- vember an affidavit was made in the case by Parker, one of the attorneys, on which an attachment was issued and levied on the entire stock of the defendant's goods. In this affidavit Parker stated, without qualifiqation, that the defendant was about to dispose of his property with intent to delay and de- fraud his creditors. By the course of procedure in the courts of Minnesota, the plaintiff in that suit was entitled to judgment on the 13th of the month, if no plea or answer was .interposed, and none was filed by the defendant. Two daj's before this time, however, other creditors of Palm- er, hearing of the condition of affairs, came to look after their interests and to prevent this judgment. Before they could in- itiate proceedings in bankruptcy they filed a bill in equity in the same court, and procured an order enjoining the plain- tiff and his attorneys from taking their default and judgment, on the ground that the proceeding was fraudulent and collu- sive between father and son. This injunction was issued on the 12th, and on the 13th, the first day on which a judgment 244 Rogers v. Palmer. [Oct. Term, Opinion of the court. by default could be entered, it was dissolved on tbe affidavit of Andrew Palmer, Jr., drawn up by one of the attorneys for his father, denying all the allegations of the- injunction bill, and stating that his father's debt was a just one, was due, and wholly unpaid to the amount stated in the complaint. Imme- diately, and on the same day, judgment was rendered and execution levied on the stock of defendant's merchandise. In a very few days thereafter the debtor Palmer was duly declared a bankrupt, and by agreement the goods were sold, the amount deposited in the Bankrupt Court, subject to the final decree in this suit, as the goods would have been if they had not been sold. There is no question that at the commencement of the suit by the father the son was insolvent. There are many circumstances besides the affidavit made by the son to show that he and his father had a perfect under- standing in regard to that suit. Among these are the visit of the father only a few months before it was commenced; the absence of any special reason for suing at that time after eight years' delay, and shortly after security was given by mortgage for the debt, though insufficient; that the notes were sent to and the suit managed by the attorneys who had been usually employed by the son ; that as soon as the goods were attached the son moved his books and papers into the office of these attorneys, and that he seems to have been in full consultation with them throughout the whole proceeding. When we come to add to these the voluntary affidavit of the defendant, on which alone the injunction was dissolved,' the effject of the dissolution being to enable the father to obtain' judgment, under which an execution was issued and a lien established on all the defendant's goods, we are satisfied that the son actively aided the father in securing this seizure of his property, with a design to prevent that property being distrib- uted equally among his creditors under the proceedings in bankruptcy, which he knew would be commenced in a few days. 1880.] Rogers v. Palmer. 245 Opinion of the court. Several of these creditors were present when the injunction was dissolved and judgment rendered, and the injunction, as the attorneys and the debtor Palmer knew, was obtained to stave off the judgment until they could apply to the court in bankruptcy. To delay the judgment until that was done would be fatal to the preference of the father's debt, for by the bank- rupt law the attachment was dissolved when he was adjudged, a bankrupt, and unless execution on the judgment could be levied before that time, the goods would pass to the assignee, relieved of any claim under the judgment in favor of the elder Palmer. Whether, therefore, the father should be paid in full to the exclusion of other creditors or not, depended on the dissolution of that injunction, and that was obtained solely on the volun- tary affidavit of the insolvent son. We are satisHed that he procured, this preference and this taking of his goods on execution with a purpose of defeating the operation of the bankrupt law, within the meaning of that act on that subject. (Bankrupt Act, sec. 35.) But in order that the assignee shall recover the value of the goods seized on execution, it is not alone sufficient that the bankrupt should have aided in procuring the seizure, but it is also necessary that the creditor should have had reasonable cause to believe that the debtor was insolvent and should have known that a fraud on the bankrupt act was intended. We think this is the result of sections 35 and 39 of the orig- inal bankrupt law as amended by the act of June 22, 1874, which changed the original act in important particulars, and which, so far as it may conflict with that act, or the revision, must be held to control them both. (18 U. S. Stats., part 3, pp. 180, 181.) This latter statute carefully introduces the word know instead of reasonable ground to believe in regard to the purpose to defraud the bankrupt act. We have little difficulty in coming to the conclusion that the elder Palmer had reason to believe that his son was insolv- 246 EoGBKS V. Palmer. [Oct. Term, Opinion of the court. ent at the time the judgment against him was taken and the execution levied on the property. We have already given the reasons for this, to which may be added that his son swears that he wrote to his father, pending negotiation with his other creditors and before the judgment was taken, asking him to consent with the other creditors to accept a compromise of fifty per cent, for his debts. It is a little more difficult to say that the father knew that the goods were seized with intent to defraud the bankrupt law. Possibly, at the moment of the seizure he did not know personally all that his attorneys and his son had dor.e, nor all that they knew. It may be that he supposed his suit would proceed iu regular order, without the aid of his son or any act on the part of his attorneys intended to evade the bankrupt law. He may not have known personally that other creditors w-ere on the ground contesting his right to a judgment, and still others on the way to the proper court to institute bank- ruptcy proceedings, which, if done before the goods were seized tinder his executiou, would defeat his purpose of securing a prior lien. But this cannot be said of the attorneys who represented him on the ground. One of these had, only a few da3's before, made oath that the son was about to dispose of his property to delay and defraud his creditors. This, if true, was certainly a fraud upon the bankrupt law. Instead of instituting a pro- ceeding in bankruptcy, this attorney swore out an attachment in favor of his client, which would be a fraud upon the bank- rupt law by preventing the equal distribution of this debtor's property among his creditors. These attorneys also procured the debtor to make the affi- davit iu the injunction suit, with the perfect knowledge that, if they thereby succeeded in dissolving it, their client'would seize the goods and make his debt in preference to all other cred- itors, though they knew that other creditors were on their waj' to St. Paul to initiate bankruptcy proceedings. They there- 1880.] Rogers v. Palmer. 247 Opinion of the court. fore knew and intended that their action in behalf of their client would work a fraud upon the bankrupt law. Is thi.s knowledge imputable to the appellee in this case ? The case of Hoover t;. West, 91 U. S., 308, was one in which a creditor had procured a confession of judgment and a levy on property of a debtor, who was declared a bankrupt within four months thereafter. The creditor had sent his note to a collection agency in Philadelphia, which had sent it to their corresponding attor- ney in Nebraska, where the judgment was taken. The cred- itor knew nothing of what was done until the money was made by sale of the goods, and had given no direction as to the mode of proceeding, and held no communication with his attorney. This court held that the attorney was the agent in the trans- action of the collecting agency, and not of the creditor, and that he could not be held to know what the attorney knew in regard to thfe insolvency of the debtor, and other matters in the case. Three of the judges dissented from this view. But an examination of the opinion will show that all were agreed that if the creditor had sent the note directly to the attorney, the latter would then have been the agent of the creditor, whose acts and whose knowledge, obtained in the course of the employment, would have been the acts and the knowledge of his principal. And such, we think, is the true rule of law. That the attorneys of the elder Palmer and the son were aware .of his insolvent condition, and were co-operating to have the property of the latter seized in execution before the bankrupt law could be set in force, with intent to defeat its operation on the son's property, we think is quite clear. And this we understand to be a fraud upon the bankrupt law, where the debtor contributes actively to that end. (Wilson v. The City Bank, 17 Wall., 487 ; Little v. Alexander, 21 Wall., 501.) The result of these considei'ations is, that the decree of the Circuit Court must be reversed, and a decree for plaintiif below in conformity to this opinion; and it is so ordered. • Ebversed. 248 National Bank v. Knox. [Oct. Terra, Opinion of the court. The United States, ex rel. The Citizens' National Bank OF Louisiana, v. John J. Knox, Comptroller of the Cur- rency. 1. The liiibilit.v of tim stockliolilers of a national bank for its debts is sev- eral, and not joint. 2. Accordingly, wliei-e an assessment was made of 70 per cent, of the par value of their ?liares on tlie stoekliolders, vvliloh would liave paid oft", if collected in fnll, tlie bank's debts, but whicli was only partly col- li'(rted, owino- to the insolvency of many of the stockholders, tlio solv- ent Ptockliolders are not liable for any further assessments to make , up the detieleney. 3. Semble that a court of equity has power to restrain, by injunction, tlie Coniprroller from makiiig assessments on stockholders palpably illegal. 4. Kennedy v. Gibson, S Wall., 49S. and Casey v. Galli, 06 U. S., 673, ap- proved. Error to tlie Supreme Court of the District of Columbia. Duravt ^ Horner, for relators, plaintifls in error. Charles Case, for defendant in error. SwAYNE, J. — 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 ibe 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 shaveholder seventy per cent, upon the par value of each share of his stock, and ordered the receiver to collect 1880.] National Bank v. Knox. 249 Opinion of the court. the assessment. This the receiver proceeded to do hj filing a bill in equity iu 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 Comp- troller 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. The relator, being a large creditor of the bank, requested the Comptroller to order a further assessment of thirty per cent, upon each share of the capital stock, for the discharge of the balance of principal and interest still due to its creditors, and to direct the receiver to proceed as before to collect the amount of the new assessment. The Comptroller refused, be- cause 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 liolds 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., 668. The last clause of section 12 is as follows : "For all debts contracted by such association for circulation, deposits, or otherwise, each shareholder shall be liable to the 250 National Bank v. Knox. [Oct. Term, Opinion of the court. amount of the par value of the shares held by him, in addition to the amount invested in such shares." This provision was changed in 1864, and has been since, and is now, in force in these terms: "The shareholders of every national banking association shall be held individually I'esponsible, eqiicdly and raiably, and not one for another, for all contracts, debts, and engagements of such association, to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such shares." (Rev. Stats. U. S., sec. 5151.) The act of 1863 made no provision for enforcing the personal liability of shareholders, while that of 1864 provided that it might be done through a receiver appointed by the Comptroller and acting under his direction. (Id., 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. The charter of a private corporation is a contract between the law-making power and the corporators, and the rights and obligations of the latter are to be measured accordingly. By the common law the individual propei'ty of the stock- holders was not liable for the debts of the corporation under any circumstances. Here the liability exists hj virtue of the statute and the assent of the corporators to its provisions, given by the contract which they entered into with Congress in ac- cepting the charter. With respect to the character of that liability, it is entirely clear from the language employed 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. In the process to be pursued to fix the amount of the separate 1880.] National Bank v. Knox. " 251 Opinion of the court. liability of each of the shareholders, it is necessary to ascer- tain (1) the whole amount of the par value of all the stock held by all the shareholders ; (2) the amount of the deficit to be paid after exhausting all the assets of the bank ; (3) then to apply the rule 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 excleed 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 aft'ect 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., (Mass.,) 525.) • These rules have been applied in several well-considered judgments of other courts, where the words we have italicised 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. E. I. Agricultural Bank, 1 E. I. Eeps., 37; In the Matter of the Hollister Bank, 27 N. Y., 393 ; Atkins v. Thornton, 19 Ga., 325; Eobinson v. Lane, 19 Id., 337; Wis- well V. Starr, 48 Maine, 401. See, also, Morse on Banking, 503.) Although assessments made by the Comptroller under the circumstances of the first assessment in this case, and all other assessments, successive or otherwise, not exceeding the par value of all the stock of the bank, are conclusive upon the stockholders, yet if he were to attempt to enforce one made, clearly and palpably, contrary to the views we have expressed, it cannot be doubted that a court of equity, if its aid were in- voked, would promptly restrain him by injunction. Nothing in this opinion is intended in anywise to afiect the authority of Kennedy v. Gibson, 8 Wall., 498, and Casey v. 252 • McElrath v. The United States. [Oct. Term, Statement of the case. Galli, 96 U. S. E., 673. On the contrary, we approve and re- affirm the rule laid down in those cases. The Comptroller decided correctl}' as to his duty in this case. The judgment of the Supreme Court of the District of Co- lumbia is therefore affirmed. Affirmed. Thomas L. MoET;Kath v. The United States. 1. By tlie liuviii foi-ce on tlie20th June, 1866, the President had the power to snmniarily dismiss from tlie army or navy any officer for any cause vvliich in his judgment either rendered liini nnsuitablc for or whose disnii^ision would promote the public service. 2. On the 20th .June, ]S()6, the President nominated to the Senate Lieu- tenant H. to be a first lieutenant in the marine corps, vice Lieutenant McE. The Senate confirmed the nomination, and Lieutenant H. was commissioned July 13,1866. By the laws then in force such appoint- ment, followed by a commission, operated to discharge Lieutenant McE. from the' service as effectually as if lie had been dismissed by direct order of the President under the authority conferred by the seventeenth section of the act of July 17, 1862. (12 Stat., 599.) 3. The act of July 13, 1866, (14 Stat., 92,) was not in effective operation, and did not control the President in the mattei' of dismissing officers of the army and navy, until on and after August 20, 1866, on which day, in tlio sense of the law, the rebellion against the national authority was closed and peace inaugurated. 4. The provision in the Court of Claims act of March 3, 1863, authorizing that court, without the intervention of a jury, to hear and determine claims against the government, and also any set-off, counter-claim, claim for damages, or other demand asserted b}' the government against the claimant, does not violate the seventh amendment of the national Constitution. 5 A claimant received from the government the amount ascertained by the piopcr accounting officers to be due hira, protesting at the time that he was entitled to a larger sum, and announcing his purpose not to be bound by such settlement of his' accounts. He then sued the government for the additional amount claimed by him : Held, That the government was entitled to go behind the settlement of its account- ing officers, and reclaim iui3' sum which had been improperly allowed the claimant in such settlement. Appeal from the Court of Claims. 1880.] McElrath v. The United States. 253 Opinion of the court. Frank W. Hackett, for appellant. Charles Devens, Attorney -GeneraL, and John S. Blair, for appellees. Harlan, J. — On the 5tli of June, 1866, the appellant, who was claimant below, transmitted to the Secretary of the Navj- his resignation as a first lieutenant in the marine corps. By an ofRcial communication from the Navy Department, dated June 19, 1866, and signed by Mr. Welles, as Secretary of the Navy, he was notified that the department declined to accept his resignation, the Secretary adding: "As you deserted from the Monongahela on the eve of her sailing for the West Indies, you are hereby dismissed from the service from this date." On the 27th of June, 1866, the President nominated to the Senate Second Lieutenant George B. Haycock, of the marine corps, to be a first lieutenant in that corps from June 20, 1866, "vice Thomas L. McElrath, dismissed." To that nomination the Sen- ate gave its advice and consent, and Haycock was accordingly commissioned July 13, 1866, to be first lieutenant, on the active list, from June 20, 1866. Thus matters stood for more than six years, and until May 14, 1873, when McElrath made a formal application to the department for the revocation and annulment of the order of dismissal of June 19, 1866, submit- ting therewith evidence tending to show that he was not a deserter, as charged in the order of that date. Pending that application, on the 10th of July, 1873, he tendered his resigna- tion as a first lieutenant in the marine corps. On the same day Mr. Eobeson, then Secretary of the Navy, notified him, in writing, that "the order of June 19, 1866, dismissing you [him] from the service is hereby revoked, having been issued under a mistake of facts." The Secretary added: "You are thils restored to the position which you held at the date of that order. The resignation which you now tender is accepted, to take effect this day." On the 8th of January, 1874, the claimant was further no- 254 McElkath v. The. United States. [Oct. Term, Opinion of the court. titled, ill writing, by the Secretary of the Navy, as follows: " Tonr dismissal from the marine corps as a first lieutenant, dated 19th of June, 1866, Is revoked, and your resignation as a first lieutenant in that corps, tendered in your letter of the 10th of July, 1873, is accepted from that date." Why this second notitication was given is not explained, and, in the view which the court takes of the case, it is not material to inquire. In January, 1874, the claimant made application to the Fourth Auditor of the Treasury for the settlement of his ac- count as lirst lieutenant in the marine corps. That officer, upon examination and settlement of such account, certified to the Second Comptroller that the sum due claimant was $6,106.53, which was the amount of the half-pay and allow- ances of a first lieutenant of marines from June 21, 1866, to July 10, 1873, inclusive. The Second Comptroller, having examined the Auditoi-'s settlement, certified its correctness to the Secretary of the Navy, who issued his requisition, properly countersigned, to the Secretary of the Treasury, requesting a warrant in behalf of the claimant for the amount so ascertained. A warrant was accordingly issued, and the foregoing sura was paid to the claimant, who, at the time he received it, declared his belief that he was entitled to full pay and allowances for the period in question ; that he accepted the amount paid him under protest, and would not hold himself in any manner concluded as to the balance claimed to be due. All of the foregoing facjts, and the further fact that the number of first lieutenants in the marine corps, from June 5, 1866, to July 10, 1873, was thirty, were known to the Fourth Auditor, the Comptroller, and the Secretary of the Navy when they respectively acted upon the claimant's account. It also appears that, from June 19, 1866, to June 10, 1873, he was engaged in business in New York, earning $30 per week. In other words, he earned, in private business, when not performing service in the navy, dui'ing the above period, more than $10,000. 1880.] McEleath v. The United States, 255 Opinion of the court. The present action is by AlcElrath to recover from the United States the balance, nearlj' $7,000, alleged to be due him on account of pay and allowances as a iirst lieutenant in the ma- rine corps of the United States. The government, denying its indebtedness to claimant in any sum whatever, asserted a counter-claim for the sum of $6,106.53, which amount, it con- tends, was paid to McElrath by the accounting officers of the Treasui'y Department without warrant of law. A judgment was rendered in behalf of the United States for the sum last named, and from that judgment the present appeal is prose- cuted. The first and second assignments of error proceed upon the ground that, notwithstanding the order of dismissal of June 19, 1866, and the subsequent appointment, by and with the advice and consent of the Senate, of Haycock as a tirst lieutenant in the marine corps, vice McEh'ath, the latter was never legally dismissed from the service, but was, in law, a first lieutenant in that corps during the whole period from June 20, 1866, to July 10, 1873, and, as such, entitled to full pay and allowances. In discussing the questions of law involved in this position, counsel for claimant starts with these propositions : that the order of dismissal issued from the Navy Department under the official signature of Secretary Welles was without authority of law; that the President alone, at that time, was invested with power to summarily dismiss from the service a commissioned officer of the marine corps; and, since the order in question simply purported to be the act of the Secretary of the Navy, and did not purport to be the act of the President, or to have been issued in pursuance of any previous direction by him given, that the presumption cannot be indulged that the dis- missal of Lieutenant McElrath was by order of the President. These propositions open up a very broad field of inquiry as to what exceptions there are to the general rule that the direc- tion of the President is to be presumed in all instructions and orders issuing from the pi'oper department concerning execu- tive business, notwithstanding they may contain no express 256 . McEleath ?;. The United States. [Oct.- Term, Opinion of the court. statement of any direction from him as to the matters to which such instructions or orders refer. There are, undoubtedly, ofHcial acts which the Constitution and laws require to be per- formed by the President personally, and the performance of which may not be , delegated to heads of departments, or to other officers in the executive branch of the government. It is equally true that, as to the vast multiplicity of matters in- volved in the administration of the executive business of the government, it is physicall}' impossible for the President to give them his personal supervision. Of necessity he must, as to such matters, discharge his duty through the instrumentality' or by the agency of others. Whether a particular act belongs to one or the other of these classes, may sometimes be verj- difficult to determine, and we shall not attempt now to lay down any general rule upon the subject. Nor shall we extend this opinion by any consideration of the question whether the particular order, signed by Seeretarj- Welles, should not be presumed to have been issued by direction of tlie President. The determination of that question is not essential to the dis- position of this case, since, if that order should, for the reasons urged by the claimant's counsel, be deemed a nullity, the nom- ination and confirmation, subsequently, of Lieutenant Hay- cock, followed by his commission as a first lieutenant in the marine corps, in place of Lieutenant McElrath, as certainly operated, under the law as it then was, to remove the latter from the service, as if he had been dismissed by direct order of the President, under his own signature. This because, as is conceded, the President, at the time he asked the advice and consent of the Senate to the nomination of Lieutenant Hay- cock in place of Lieutenant MpElrath, had the power to dis- miss the latter summarily from the service. That power, if not possessed, in time of war, by the President, in virtue of his constitutional relations to the army and navy, (and as to that question we express no opinion,) was given by an act of Congress approved July 17, 1862. The seventeenth section of that statute declared " that the Pi-esident of the United States 1880.] McElrath v. The United. States. 257 Opinion of the court. be, and herebj- is, authorized and requested to dismiss and discharge from the military service, either in the army, navy, marine corps, or volunteer force, in the Uuited States, any officer, for any cause which, in his judgment, either renders such officer unsuitable for, or whose dismission would pro- mote, the public service." (12 Stat., 599.) The message of the President informing the Senate of the dismissal of Lieu- tenant McElrath, and the consent of the Senate to the nomi- nation of Lieutenant Haycock, in his stead, followed by a comniissiou in due form, clearly invested the latter with the office which McElrath had held, and gave him, from that time, the exclusive right to the pay and allowances attached to that position. But we are here met with the suggestion that a vacancy did not exist, and Lieutenant Haycock's right to the office did not attach, until he received his commission on the 13th day of July, 1866, on which day, and from the first moment of that da\' — as is claimed upon the authority of United States v. La- peyre, 17 Wall., 191, and United States ;;. Norton, 97 U. S., 164 — it was the law that "no officer of the military or naval service shall, in time of peace, be' dismissed from service ex- cept upon and in pursuance of the sentence of a court-martial to that effect, or in commutation thereof." (14 Stat., 92, act of July 13, 1866.) To this suggestion one obvious answer is, that the act of July 13, 1866, was ijot, on that day, in effective operation. That act, manifestly, controls the President, in the matter of dismissing officers from the niilitary and naval serv- ice only in time of peace. Its purpose was, upon the declara- tion of peace, to suspend the broad power given him during the recent rebellion, when prompt, vigorous action was often demanded, to dismiss any officer from the service whenever, in his judgment, the public service would thereby be promoted. But when, in the sense of the law, was the rebellion suppressed and peace inaugurated ? Not until the 20th day of August, 1866, on which day the President announced, by proclamation, that the insurrection against the national authority was at an 17 258 McElrath v. The United States. [Oct. Term, Opinion of the court. , end, and that "peace, order, tranquillit}', and civil authority" then existed "in and throughout the whole of the United States of America!" (14 Stat., 814; U. S. v. Anderson, 9 Wall., 71; The Protector, 12 Wall., 702.) The efiect of that proclamation, as fixing the time when the rebellion closed, was distinctly recognized by Congress in the act of March 2, 1867, (14 Stat., 422,) which declared that the previous act of June 20, 1864, (13 Stat, 144,) increasing the pay of soldiers in the army, should be continued in full force and efiect for three years " after the close of the rebellion, as announced by the President of the United States by proclamation bearing date August 20, 1866." Since peace, in the sense of the law, could not exist while rebellion against the national government re- mained unsuppressed, the close of the rebellion and the com- plete restoration of national authoi'ity, as announced by the President and recognized by Congress, must be accepted as the beginning of the " time of peace," during which the Presi- dent was deprived of the power of summarily dismissing officers from the military and naval service. It results tljat neither when Lieutenant Haycock was nomi- nated to and confirmed by the Senate, nor when commissioned in place of Lieutenant McElrath, was the sentence of a court- martial, or any commutation thereof, required as a condition precedent to the exercise by the President of the power of dis- missal, or to the appointment by him of an officer in the service, by and with the advice and consent of the Senate. It also necessarily follows, from what has been said, that the orders which issued from the l^avy Department under the signature of Secretary Kobeson, in 1873 and 1874, even if is- sued by direction of the President, were inoperative for the purpose of reinstating Lieutenant McElrath in his position as a first lieutenant in the 'marine corps. The position to which it was attempted to restore him had, as we have seen, been previously filled by constitutional appointment, and by the laws then m force the incumbent could neither be displaced, nor dis- missed, except " upon and in pursuance of the sentence of a 1880.] McElrath v. The United States. 259 Opinion of the court. court-niai'tial to that effect, or in commutation thereof." The attempted restoration was ineffectual for the additional and eqnallj' conclusive reason that the complement of first lieuten- ants in the marine corps was at that time full. The order assQmiug to restore Lieutenant McElrath was, of course, for the reasons already given, equally inoperative to entitle him to pay and allowances for any portion of the period covered by the account settled by the officers of the treasury. The requi- sition upon the Secretary of the Treasury, by the Secretary of the Navy, was, consequently, without warrant of law. During the period for which Lieutenant McElrath was allowed half- pay he was not an officer in the service, and the allowance to him of pay, after the appointment of his successor, was illegal. "We come now to inquire whether the Court of Claims erred in awarding judgment against the appellant for the amount paid to him out of the treasury of the United States upon the foregoing settlement of his accounts. Upon this branch of the case counsel for the claimant con- tends that so much of the act of March 3, 1863, as invests the Court of Claims with power to render judgment in favor of the United States against a claimant, is in violation of the seventh amendment of the national Constitution, which provides that in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jurj' shall be pre- served. That section, referring to the trial of causes in which the gov- ernment may plead against the claimant any set-off, counter- claim, claim for damages, or other demand, provides that the court shall hear and determine such claim and demand both for and against the government and claimant; and if, upon the whole case, the court finds that the claimant is indebted to the government, it "shall render judgment to that efi'ect, and such judgment shall be final, with the right of appeal as in other cases provided for by law." There is nothing in these pro- visions which violates either the letter or spirit of the seventh amendment. Suits against the government in the Court of 260 McElhatii v. The United States. [Oct. Term, Opinion of the court. Claims, whether reference be had to the claimant's demand, or to the defense, or to any set-otf or counter-claim which tlie gov- ernment may assert, are not controlled by the seventh amend- ment. They are not suits at common law within its true mean- ing. The government cannot be sued except with its own consent. It can declare in what court it may be sued, and pre- scribe the forms of pleading and the rules of practice to be observed in such suits. It may restrict the jurisdiction of the court to a consideration of only certain classes of claims against the United States. Congress, by the act in question, infornjs the clain.ant that if he avails himself of the privilege of suing the government hi the special court organized for that purpose, he may be met with a set-off, countei'-claim, or other demand of the government, upon which judgment may go against him, without the intervention of a jury, if the court, upon the whole case, is of opinion that the government is entitled to such judg- ment. If the claimant avails himself of the privilege thus granted, he must do so subject to the conditions annexed by the government to the exercise of the privilege. Nothing more need be said on this subject. The remaining objection against the judgment in behalf of the government upon its counter-claim deserves notice at our hands. It is, in substance, this: ThattheSecretary of theNavy, the Second Comptroller, and the Fourth Auditor, having exam- ined the claim of Lieutenant McElrath, and, with full knowledge of all the facts, having decided that he was legall}^ entitled to half^pay and allowances for the period in question, the amount paid him cannot be reclaimed becatise of the subsequent dis- cover}' that, in point of law, appellant was riot an officer in the .marine corps during the period for which he was allowed such .half-pay. This view is controverted by the Attorney-General, -who contends that the right of the government to reclaim money paid out of the treasury under a mere mistake of law is not subject to the same limitations which, under like circum- stances, would be applied between individuals. The Attorney- General goes even further, and insists that whether the mistake 1880.] McElrath v. The United States. 261 Opinion of the court. be one of fact or of law, or of both, the j^oveniraent may always recover from third persons mone}- improperly paid out of the public treasury by its accounting officers not in pursuance of previous judicial determination. Whether the one or the other of these views, in the broad terms in which they are announced, is correct, we will not now inquire; for if the general rule ap- plicable in such cases would preclude the government from re- claiming money that had been paid under a mistake of law simply, that rule is inapphcable under the circumstances dis- closed in the present case. Had the claimant rested upon the settlement of his account by the proper officers of the government, his i-ight to invoke the general rule, to which we have referred, would have been entitled to more consideration than it can now receive. Upon receiving the amount awarded to hnu by the representatives of the government, he distinctly announc'ed his purpose not to abide by their settlement of his accounts, but, in disregard thereof, to demand an additional sum upon the basis of full pay and allowances from June 20, 1866, to July 10, 1873. This suit itself invites the court to go behind that settlement, to reexamine all the questions arising out of the claim of ap- pellant for full pay and allowances, and to correct the error which he insists was committed to his prejudice by the ac- counting officers of the government. The government declin- ing to plead the settlement of 1874 in bar of the suit, meets the claimant upon his own chosen ground, and, insisting that its officers, misapprehending the law, paid to him out of the treasury money to which he was not legally entitled, asks, as we think it may rightfully do, judgment for the amount thus improperly paid to claimant. For the reasons we have given the judgment must be af- firmed, and it is so ordered. Affirmkd. 262 Benton County v. Eollens. [Oct. Term, Statement of the case. The County of Benton v. William H. Rollens and Foster Shores, trustees of the estate of James F. Shores, de-. CEASED. The .■irnc.MKlmoiit (artoptoil in 1871) to the chai-ter of the Osage Vullej' and Sontherii Kansas Kaih'Oarl Company, (gi-antod hi 1857,) does not create a new charier, nor extinguish tlie power grantecl to the connties h.y tlie original cliarter to subscribe to its stocl;. Error to the Circuit Court oi' the United States for the Western District of Missouri. This was a suit on coupons detached from bonds issued by Benton county, Missouri. The defense was, that the issue of the bonds was unauthorized, as the statute authorizing their issue had been superseded by a later one changing the line of the road, and as no vote of the count}- had been taken on the question of their issue, as required by section 1-4 of article 11 of the Missouri Constitution of 1865. Ths section of the original act authorizing the subscription is as follows : "Section 14. It shall be lawful for the County Court of any county in which any part of the route of said railroad or branches may be, or any county adjacent thereto, to subscribe to the stock of said company, or invest its three per cent, fund or other internal improvement fund belonging to the county as stock in said road, and for the stock subscribed in behalf of the county may issue the bonds of the county to raise the funds to pay the same, and to take proper steps to protect the inter- est and credit of the County Court; may appoint an agent to represent the county, vote for it, and receive its dividends. Any incorporated city, town, or incorporated company may subscribe to the stock in said railroad company, and appoint an agent to represent its interest, give its votes, receive its dividends, and may take proper steps to guard and protect the interest of such city, town, or corporation." The amendment to the charter changed the location of the 1880.] "Whitney v. National Bank. 263 Statement of the case. road, but did not alter this section. The sections of the original charter that were amended were the seventh and twelfth. T. T. Crittenden, for plaintiff in error. /. D. Stevenson and /. B. Henderson, for defendants in error. Waite, C. J. — This judgment is affirmed on the authority of Scotland Co. v. Thomas, 94 U. S., 682, and Schuyler Co. v. Thomas, 98 U. S., 169. Under the rulings in those cases the amendment to the charter of the Osage Valley and Southern Kansas Railroad Company, adopted in 1871, and changing somewhat the route of the road, did not extinguish the power granted to counties by the original charter to subscribe to the stock of the companj\ The amendment was not a new char- ter, but an alteration of the old one in a way which left the power to subscribe in full force. Affirmed. JosiAH D. Whitney v. The First National Bank of Brat- TLEBORO'. The point decided in National Banirw. Graham, 100 U. S., 699, that a national banlv is liable for gross nen-ligence in tlie loss of speoial de- posits, reaffirmed. Error to the Supreme Court of the State of Vermont. This was a suit against a national bank to recover the value of certain government bonds .deposited with it as a special deposit, and lost through the negligence of the bank. The inferior State courts holding that a national bank could not receive special deposits, and was not liable for their loss, re- fused to allow the case to go to the jury on the facts, and instructed them to render a verdict for the defendant. The ground on which a review by this court was asked, was that there was drawn in questiou the construction of the national banking act of June 30, 1864. 264 Eelfb v. Wilson. [Oct. Term, Statement of the case. Charles N. Davenport, for plaintiff in error. E. J. Phelps, for defendant in error. Waite, C. J. — This case is clearly settled b}- tliat of National Bank v. Graham, 100 U. S., 699. The identical question there decided is presented by the record, and we have no doubt it was the only question considered, by the Supreme Court of the State. We certainly cannot say, from anything that appears in the bill of exceptions, that there might not have been enough evidence of negligence on the trial in the lower court to make it necessary to send the ease to the jury. There is nothing whatever in the record to indicate that the positive instruction to the jury to bring in a verdict for the defendant below was based on anything else than a ruling that, as a matter of law, a national bank was not liable for the loss of special deposits. The judgment is reversed, and the cause remanded with in- structions to reverse the judgment of the County Court and award a venire de novo. Reversed. William S. Relfe, superintendent of the Insurance De- partment OF the State op Missouri, substituted for the Life Association oe America, v. Letitia V. Wilson. 1. Tlie iulniission of testimony wliicli, even if incompettMit, does not injnre the appelhints, Is not erroi-. 2. Section 1, chapter 90, of the General Statutes of Missouri, revised in 1865, allowing dimiau'es ao;ainst insurance companies for vexations refusals to pay policies, is not repealed by the act of March 10, 1869. 3. A verdict for the " full amount of tlie policy, vvitli six per cent, inter- est and ten per cent, damages for vexations delay," leaving the cal- culation t» the court, is sufficiently certain to support a judgment. Error to the Circuit Court of the United States for the Eastern District of Missouri. This was a suit on a policy of insurance. The testimony of 1880.] Relee v. Wilson. 265 Opinion of the court. Mrs. Wilson and Hutf related to an interview with an attor- nej' of the company, in which he offered an amount in com- promise. The verdict was in the following words: "We, the jury, find for the plaintiff for the full amount of the policy, with six per cent, interest and ten per cent, for vexatious " delay." Jam.es Carr and George D. Reynolds, for plaintifi' in error. E. T. Farish, for defendant in error. Waite, C. J. — The testimony of Mrs. Wilson and Huff was admitted only on account of its bearing on the question of vexatious delay. The matter testified to had none of the characteristics of "confidential overtures of pacification," and there is nothing from which to infer "that the parties agreed together that evidence of it should not be given." But even if technically inadmissible, it is difficult to see what harm was done the insurance company. An agent of the company went to Mrs. Wilson and, in substance, told her he wanted to settle by paying less than the face of her policy. She told him if she was entitled to anything she was to the whole, and refused to entertain any proposition. He intimated that the policy was obtained by a misrepresentation of facts. This offended her and he apologized. Certainly we ought not to reverse the judgment for the admission of such testimony. The exclusion of the testimony of Hoover could do no' harm under the charge of the court upon that branch of the case. The jury were told, in substance, they must find for the company on the issue to which this testimony related, unless the person who took the application of Wilson and made it out was at the time the agent of this company, and knew that the previous application, about which Hoover was called to testify, had been made and rejected. In this view'of the case the excluded testimony was immaterial. The general charge included all that the insurance company in its special requests asked. The language was not the same, 266 Rblfb I!. Wilson. [Oct. Term, Opinion of tlie court. but, if anything, the charge as given was more favorable to the company than tliat requested. The exception to the charge as given is general. The charge embraced several distinct matters, most of which are not now objected to. Tbis exception, therefore, was not well taken. Our decisions are uniform and numerous to the effect that " if a series of propositions are embodied in instructions, and the instructions 'are excepted to in a mass, if any one of the propositions is correct, the exception must be overruled." (Johnston v. Jones, 1 Black, 220 ; Beaver v. Taylor, 93 U. 8., 54.) Rule 4 of this court, promulgated more than twenty years ago, (21 How., VI,) was intended to give substantial effect to this line of decisions, and requires of parties in ex- cepting to the charge of the court to state distinctlj' the several matters to which they except. Section 1, chapter 90, of the General Statutes of Missouri, revised in 1865, which gives damages in actions against in- surance companies for a vexatious refusal to pay policies, was not repealed by the act of March 10, 1869, for the incorpora- tion and regulation of insurance companies. (Acts of 1869, pp. 26, 45.) That section is. not inconsistent with any of the provisions of the later acts, and repeals by implication are not favored. There is nothing in the new acts which relates to the same subject-matter, and the presumption is, therefore, that it was intended this section should stand. Such was evidently the understanding of the Legislature when it revised and pro- mulgated the statutes of the State in 1879 under the provisions of the Constitution, for the section is brought into the revision, not as a new enactment, but as an existing law. (liev. Stat. Mo., sec. 6026.) The verdict is sufficiently certain to authorize the judgment. It is for the full amount of the policj', with six per cent, in- terest and ten per cent, damages for vexatious delay. The amount of the policy and the date from which in-.erest is to be calculated is stated in the petition and admitted in the answer. The amount of the judgment to be entered on the 1880.] The UNiTiiD States v. Atherton. 267 Opinion of tlie court. verdict can, therefore, be ascertained bj' simple arithmetical calculation, which may as well bo done by the court as the jury. Every material fact at issue was found by the jury, and all the elements of the calculation to be made were indicated with sufficient certainty. Judgment affirmed. ArriKMED. The United States v. Dominga G. Atherton, executrix, AND A. B. Grogan, executor, of Faxon D. Atherton, deceased. 1. A 1)111 ill cliaiiceiy to set asidu a 3iiil»iTi(!iit oi' cli'Ci'ee of a court of 6om- peteiit iurisdiotlon, on the groniid of fi-aud, must sot out clistiuotly the p.Ti-ticulare of the fraud, the names of the parties who were engaged ill it, and the manner in which the coui't or the party injured was misled oi- imposed on. 2. So, also, a bill to set aside or annid a patent of the United States for public land*, or to correct such a patent on account of fraud or mis- take, must show, by like averments, the particulars of the fraud and the character of the mistake, and how ft occurred. Appeal from the Circuit Court of the United States for the District of California. William J. Johnston and James K. Redingion, for appellant. No brief filed for appellees. Miller, J. — This was a bill in chancery in the Circuit Court for the District of California, brought, as stated in its caption, by the United States attorney for that district, by the direction of the Attorney-General, as well on behalf of the United States as of certain persons afterwards named, settlers and pre- cmptors upon the public lands described in the bill. The object of the bill is to set aside a decree of the District Court for that district, made in 1860, confirming a claim which had been formally passed upon by the board of commissioners 268 The Unicbd States v. Atherton. [Oct. Term, Opinion of the court. for the settlement of private land claims in California, and which had come into the District Court by appeal. The bill was filed in 1877. The history of the case given by this, bill is, th-it the claim was originally presented to the board of commissioners as a Mexican grant, aijd confirmed by that board. On appeal to the District Court, that order was reversed and the claimant's petition dismissed. About four years after this, a grantee of the claimant filed a bill of review in the District Court, in which the former order of dismissal was set aside, and the order of the board of com- missioners confirming the grant was afhrmed. Something of a history of the origin of the Mexican grant is given in the bill, from which it would appear that it was founded in for- gery, and was otherwise illegal; and certainly, on the face of this bill, if it were an open question, the title could not be sus- tained. But before we can reach this inquiry, it is necessary to get rid of the decree of the District Court. That the board of com- missioners and the District Court had jurisdiction, the one orig- inal and the other by appeal, of this claim, is not doubted. Nor is it denied by counsel, nor 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 ofhcers. 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 presump- tion not inconsistent with the allegations of the bill is to be made in favor of the decree of the District Court. It is, there- fore, 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 para- 1880.] The United States v. Atherton. 269 Opinion of the court. graph 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 coutirming said claim, was irregular and without authority of law, and that said former decree rejecting said claim had become iinal." A decree of a court of record is not to be set aside seven- teen years after it has been rendered because it was irregular, nor because it was erroneous. We have already said 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 tinal in the sense that anj' other decree had which settles the rights of the parties; and, like any other de- cree, it was subject in a proper case to be opened by a bill of review within live years after it was made. There is no alle- gatioi) 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 w-as offered on tlie 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 iinal 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 Iinal ly ap- proved in the surveyor's office. This patent bears date Feb- ruary 16, 1875, and the present bill was filed two years after. The discrepancy alleged between the amount of land covered 270 The Uxited States r. Atherton. [Oct. Term, Opinion of the conrt. by the snrvev and that covered bv the patent is veiy large. The bill was tiled within a reasonable time after the patent issned. "We should be very mnch inclined to snstain any bill showing such a squandering of the public land if the allega- tions had been sufficiently specific to call upon the defendant t :> answer. Such a bill must rest, 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. Xo copy of the patent is exhibited, nor of the survey with which it is said to diifer. There is only the general allegation that certain persons, not named therein, cons[iired together, and, by false and- frandn- lent representations and suppression of facts, imposed npon the officers connected with the land office at "U'ashington, and fraudulently procured the patent to be issued. Xo names of the parties who committed the fraud ; no names of the persons or designation of the officer imposed on are given. It is ar 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 r. Frisbie, 101 U. S., 47G, that we ^^■ill con- tent 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 savins: that the alnise of this discretion must be made plain to authorize us to do so. In the ease before us there is no suggestion of the nature of the amendment proposed to be made. No 1880.] Densmoee v. Scofield. 271 Opinion of the court. amundnient to tlie 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. Affirmed. James Densmoee, Amos Densmorb, and George W. N. Yost V. William C. Scofield, John Alexander, Matthew Wil- son, t£ AL. A patent for combining two largii tiinlis witli an ordinary railway car as ii pennaneiit part of it. so as to cai-ry the desired snbstance in bulk instead of in sepai'ate vessels or pacUagei!, the tanks being attaclied directly over the car trncks by means of cleats, &c., Iield void because (lie (iviilenci; showed that similar contiiviinoes had been in use, before the issue of the patent, and because not requiring a sufficient exercise of the Inventive faculty to render it patentable. Appeal from the Circuit Court of the United States for the Northern District of Ohio. J. C. Clayton and A. Q. Eeashey, for appellants. Georcjc Willey, for appellees. SwAYNE, J. — This is an appeal in equity by the complain- ants. Tlie bill was brought upon a reissued patent. The sum- mation and claims as set forth in the reissue are as follows: "The nature of our invention consists in combining two large, light, tight, jSrm, 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 railroad cars, and thereby save carry- 272 Densmore v. Scofield. [Oct. Torrri, Opinion of the court. ■ing the weight of tlie barrels, casks, hogslieads, 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 BB, (or their equivalent,) when con- structed 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 vi'heu con- structed and operating in combination with an ordinary rail- way car, substantially as and for the purposes set forth. "Third. The frames C C C, the bolts 1, 2, 3, and 4, and the cleats HHIHI, when constructed and operating in com- bination with tanks BB, the man-holes and manheads DD, and the faucets EE, and the runway G, when constructed and arranged in combination with tanks B B, and an ordinary rail- way car, substantially as and for the purposes set forlh and described." The bill alleges infringement, and praj^s for an account of profits and a decree for a perpetual injunction, and for such further relief as maj' be deemed proper. Among other defenses, the answer sets up that the reissued patent is too broad, and is therefore void, and denies infringe- ment. We pass by these topics because we deem it proper to dis- pose of the case upon a more radical and comprehensive ob- jection. A witness called by the appellees testified that he was largely engaged in shipping petroleum from 1861 to 1872. His lan- guage is: "In 1863, and prior to this and after, I shipped large quan- tities of it in old whaling casks holding from 1-J to 8 and 10 barrels eaph. 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 1880.] ])ensmore v. Scofibld. 273 Opinion of the court. shipments in casks and return casks in 1863; they are cor- rect. "My practice was to spike down cleats to prevent the casks from shifting. In nearly every shipment there were small and large easks as above. The casks would go to and fro on the railroad many times, carrying oil, and returning in the same cars empty to be filled and shipped again by me." iViother witness testifies "that he has been general freight agent on the Lake Shore and Southern Michigan Eailway and its predecessors for about twenty years; that all this time he has been familiar with the practice and usagia in railways as to loading, and that it has always been their practice or usage to place or distribute loads so that they should rest, as far as possible, over the trucks." A third witness, speaking of wooden tanks like those of the complainants, says: "During the year 1871 their use was discontinued because of the large percentage of leakage, and their consequent lia- bilit}- to be burned up; and in case of accident on the railroad, if a tank was thrown off a car and it was destroyed, a fire was almost certain to result from the accident. A single iron tank built in boiler shape, and nearly as long as a car, and placed horizontally on the car, was substituted then. " Q. State whether they use that description of tank down to the present time. "A. That kind of tank car is still in use, and is giving uni- versal satisfaction because of being tight, little w no leakage, and the liabilities to fire are less, and in case of accident the tank is of sufficient strength to even be thrown oft' a car with- out 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 prac- 18 274 Densmore v. Scofibld. [Oct. Term, Opinion of the court. tice 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 nnimpeached and uncontradicted. This testimony leaves nothing of the substance of the pUin- tiffs' alleged invention. No one, we apprehend, would seriously contend for a moment that what is left is sutficient to ct)nsti- tute the basis of a valid patent. (See Brown v. Piper, 91 U. S. liep., 37, and authorities there cited.) But, irrespective of this testimony, and of any testimony, upon looking thisreissue in the face and examining, its several claims by their own light, we find nothing tbat brings any of them within the sphere of what is properly patentable. There is no novelty and no iUtility. It does not appear (to use the language of appellants' bi'ief ) that there was " a flash of thought " by which such a result as to either was reached, or that there was any exercise of the inventive faculty, more or less thoughtful, whereby any- thing entitled to the protection of a patent was produced. It strikes us that the entirety and all the particulars of the sum- mary and the .claims are frivolous, and nothing more. Patents rightfully issued are property, and are surrounded 'by the same rights and sanctions which attend all other prop- erty. 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 enforced by an equally firm hand, wherever they come under judicial con- sideration. The decree of the Circuit Court is affirmed. Affirmed. 1880.] Swift v. Smith. 275 Opinion of the court. Joseph Swift, Edwin Swift, Elizabeth Carroll, and Ellen Carroll v. Janet Smith, administratrix of David Smith, deceased. A hona-fide lioklei' for value of a nejiotiable note roceived it, by indorse- ment, fi'oui tlie tiMistee in tlie tnist deed given to secure it. Tlie note was indor.^ed in blanlc to tlie ti'ustee, but it appeared to be the faet tliat it \v,as merely given him for collection. Of this fact the holder had no notice. The trustee sul)scq'aently became the owner of the property conveyed in the trust deed by conveyances showing on tlieir face that tlic note had not been paid; and he afterwards con- veyed it in trn-t to secure certain debts to different parties by two trust deeds several years apart. He also made a deed to the party from whom he had purchased, purporting to be a deed of i-elease of all the riglit, title, interest, and claim acquired by him by virtue of the deed securing the original note : Held — 1. Tliat the tru-tee could not bj^ such a release destroy the riglits of the holder of the note, and that tlie lien of such holder wa.! superior to that of the parties claiming through the trustee. 2. Tiiat tlie recital of the existence of the lien of the note in the deeds forming prior links in the title of these parties, was such con- structive notice as to require them to ascertain whether the note had been paid. 3. A general indorsement estops the party making it from setting up against a bona-fide holder that it was for collection merely. 4. Brine v. [nsur.moa Co., 98 U. S., 627, realtirmed. Appeal from the Circuit Court of tlie United States for the Northern District of IlUnois. W. C. Goudy, for appellants. W. T. Burgess and Van H. Higgins, for appellee. Strong, J. — The appellants complain of the decree of the Circuit Court because it adjudged that the plaintiff, as admin- istratrix of David Smith, deceased, had a lien on the lots de- scribed in the bill by virtue of the deed of trust purporting to have been made by George N. Williams to Obadiah Jackson on the 1st day of October, 1868, and because it adjudged that lien to be prior to the lien in favor of Joseph Swift and Edwin 276 Swift v. Smith. [Oct. Term, opinion of the coiirt. Swift and that in favor of Elizabeth Carroll and Ellen Carroll. There are other objections to the decree, but the two mentioned are the most important, for they strike at all the relief sought by the complainant's bill. Both the defendants' below (now appellants) and the com- plainant claim under Charles C. Waite, who, it is agreed, was the owner of the lots on the 1st day of October, 1868. On that day Charles C. Waite made his deed of the lots to one George N. Williams, which was duly recorded on the 24th day of the same month. To secure the payment of part of the purchase- money, Williams gave two promissory notes, both dated Octo- ber 1, 1868, payable to the order of Charles C. Waite — one for six thousand dollars, payable in one year from its date, and the other for thirty thousand dollars, payable four years after its date, with interest at the rate of eight per cent., payable semi- annually. On the same day (October 1) Williams made and delivered his deed of ti'ust of the lots sold to him by Charles C. Waite to Obadiah Jackson, to secure payment according to the tenor of the promissory notes he had given. This deed was duly.acknowledged and recorded concurrentlj' with Waite's deed to him. In eti'ecting the sale from Waite to Williams, and in taking the notes and security for the payment of the purchase-money, Jackson was the attorney and agent for the vendor, and during some years thereafter the interest on the thirtj'-thousand-doUar note appears to have been paid through him. The six-thousand-dollar note was paid at its maturity. The other note came into the hands of Waite, the vendor, then living in New York, and he soon afterwards transferred and indorsed it to the order of his brother, Silas M. Waite, who subsequently, and before it fell due, indorsed it generally in blank to Obadiah Jackson. Thus Jackson became clothed with apparent ownership of the note, and with apparent power to transfer it by his indorsement. On the 18th day of April, 1871, Jackson borrowed from David Smith, the complainant's intestate, the sum of thirty-one thousand five hundred dollars, giving his promissory note there- 1880.] Swift v. Smith. 277 Opinion of the court. for, and to secure the payment of his note he indorsed and de- livered to Smith the WiUiams note for thirty thousand dollars as a collateral. This was nearly a year and a half before its maturity. At the time when the note was thus indorsed to Smith there were entries upon its back of payments of interest upon it up to May 17, 1871. These entries purported to be acknowledgments of " S. M. Waite, by 0. Jackson." There was also a regular chain of indorsements by Charles C. "Waite, ^ the payee, to Silas M. Waite or order ; by Silas M. Waite to Obadiah Jackson or order, followed b}' an indorsement by Obadiah Jackson in blank. There was also on the margin of the note the following: "This note secured by trust deed of even date herewith, duly stamped." Thus far the facts appear without any real controversy, and unless there is something in the case to qualify them, they un- questionably establish that on the 18th of April, 1871, Smith became the hona-fide holder of the thirty-thousand-dollar note for value paid, and as such entitled to the benefit of the deed of trust given by Williams to Jackson to secure its payment. Though he took it only as a collateral security for a loan made to Jackson at the time, he was entitled to the protection of a purchaser for value without notice of anything to impeach his right. Conceding, what appears to be more than probable, that Jackson was not, in fact, the owner of the note when he trans- ferred it to Smith ; that he simply held it as agent or attorney of S. M. Waite for collection, and that in transferring it to Smith he perpetrated a fraud upon the true owner, it is still certain that he was clothed by Waite with power to transfer the ownership as he did. Waite's indorsement of the note to him gave him that power, and, though its exercise was a fraud, if Smith advanced his money in good faith, relying upon Jack- son's apjsarent ownership, he was justified in so doing, and S. M. Waite, who enabled Jackson to negotiate the note, thereby lost his title. He was bound by Jackson's act. There is nothing in the case to show that Smith's purchase 278 Swift v. Smith. [Oct. Term, Opinion of the court. was not in good faith. There was nothing upon the note, nor anything in the indorsement thereou, to notify him that it did not belong to Jackson, both legally and equitably. It was mer- cantile paper, and not due. One who purchases such paper from another, who is apparently the owner, giving a consider- ation for it, obtains a good title, though he may know facts and circumstances that cause him to suspect, or would cause one of ordinary prudence to suspect, that the person from whom he obtained it had no interest in it, or authority to use it for his own benefit, and though by ordinary diligence he could have ascertained those facts. (Goodman v. Simonds, 20 How., 343.) He can lose his right only by actual notice or bad faith. It is true that if the bill or note be so marked on its face as to show that it belongs to some other person than the one who offers to negotiate it, the purchaser will be presumed to have knowledge of the true owner, and his purchase will not be held to be bona fide. (Fowler v. Brantley, 14 Pet., 318.) Nothing of this kind existed in the present case. Everything upon the note tended to show that it belonged absolutely to Jackson when Smith bought it; and we fail to discover anything in the entries of interest payments, or in any other circumstances, that should have aroused even suspicion to the contrary. "We are unable, therefore, to comprehend how it can be main- tained, as the appellants contend, that the note did not belong to the complainant, but belonged to Silas M. Waite. What- ever may have been the fact before its indorsement to David Smith, and even after its indorsement to Jackson, Waite was estopped against asserting any claim to it by its transfer to Smith. It is true Waite is not a party to this suit. The decree does not bind him. But there is enough without the decree to estop him. He was examined as a witness for the appellants on the 12th of May, 1877. Then,if not before, he was informed that the note had been transferred to Smith, and that Smith's administratrix was proceeding to collect it. Plainly, then, it became his duty to assert his claim to it, if any he then had. He could not innocently lie by without intervention, or any 1880.] Swift v. Smith. 279 Opinion of tlie court. action to vindicate his claim, wtiile Mrs. Smith was proceeding to enforce the trust. His laches, if he had any right, was inex- cusable. But he made no movement in this case, and, so far as it appears, none elsewhere. Without further remark upon this part of the case, we think we have said enough to warrant the conclusion at which we have arrived — that the complainant's intestate, on the 18th of April, 1871, became the owner of the note, and thereby entitled to the benetit of the trust declared in the trust deed of Williams to Jackson. The appellants, however, contend that no lien was created by the deed of trust of Williams to Jackson, because, as they assert, Williams was a fictitious person, or an alias of Jackson, and, therefore, that the pretended deed was void, since no man can convey to himself. This is a strange position for the appel- lants to take. If there was no such person as Williams, then Waite's deed to Williams was a nullity, for there was no per- son to take, and, as all the rights which the appellants assert come from Waite through Williams, (as will appear hereafter,) they have no interest in resisting the demand of the complain- ant, and they are not entitled to be heard in the case. And so, as all the rights they assert are by virtue of a deed subsequently made by WilUiams, (a deed hereafter to be noticed,) it is not easy to see how they can have any standing. Or if Williams was but another name for Jackson, and Waite's deed was made to Jackson under the name of Williams, then the note, though signed by the name George N. Williams, was Jackson's note, and the trust deed signed by the same name would be construed as a declaration of trust for the security of the note, equivalent to a covenant to stand seized to uses for the holder. But we are of opinion that Williams was not a myth. Beyond doubt Waite's deed was made to a person calling himself Williams, and made to the same person who signed the note and signed and acknowledged the deed of trust. Whether that was his real name or not, is immaterial. He appeared before the no- tary and acknowledged the deed as his. He v/as not Jackson, 280 Swift v. Smith. [Oct. Term, Opinion of the court. it is clear. The evidence that the witnesses called in 1877 knew no such person as George N. Williams, in a city contain- ing several hundred thousand inhabitants, is hardly worthy of respect as proof that no such person was in Chicago in 1868. The existence of the lien, or of the trust declared by the deed, is not to be disproved by such evidence. Concluding, then, that David Smith, on the 18th of April, 1871, obtained a lien on the lots described in the bill by virtue of the deed of trust from Williams to Jackson, we come to consider the second leading objection urged against the decree of the Circuit Court. It is that the court erred in decreeing that lien to be prior to the liens in favor of the appellants, Swift,' and Carroll. To comprehend this assignment of error it is necessary to observe the facts as the^' appear in the record. On the 5th day of April, 1868, Williams, who had then be- come the purchaser of the lots, and who held them subject to his deed of trust to Jackson, sold and conveyed them by war- ranty deed to Mrs. Mary P. Moody for the consideration of $60,000, subject to the deed of trust to secure the payment of the |30,000 note, which, the grantee agreed to assume and pay- as part of the consideration of the purchase. This deed was recorded October 24, 1868. On the 17th of May, 1871, Mrs. Mary P. Moody, by war- ranty deed, recorded May 25, 1871, conveyed the lots, for the consideration of $45,000, to Charles V. Dyer, subject to the trust deed aforesaid, describing it as given to secure the note for |30,000, which amount, with interest from date, the grantee covenanted to psXy as part of the consideration. Afterwards, on the 1st day of June, 1872, Charles V. Dyer .and wife, by deed of that' date with warranty, conveyed the Hots to Obadiah Jackson aforesaid, expressly subject "to a trust .deed given by George N. WiUiams to Jackson, dated October ,1, 1868, * * * to secure a certain note on which is due . 130,000 and interest." This deed was filed of record June 18, 1872. 1880.] Swift v. Smith. 281 Opinion of the court. Subsequently Jackson, with his wife, made a deed of trust of the same property to ITorrnan Perkins to secure the payment of an indebtedness by two bonds, each for $25,000, given by Jackson, one to Joseph Swift and the other to Edwin Swift. This deed was dated June 1, 1872, acknowledged June 29, 1872, and filed for record August 3, 1872. On the same day, August 3, 1872, there was filed for record an instrument purporting tobe a release by Jackson to Charles V. Dyer, for the consideration of one dollar, of the right, title, interest, claim, and demand of him, the said Jackson, which he had acquired by virtue of the trust deed given to him by Williams to secure payment of the $30,000 note. This release was dated October 2, 1871. It was not acknowledged until August 3, 1872, the day when the deed of trust to Perkins was filed for record, nor did it acknowledge the payment of the note. On the 13th dayof November, 1876, Jackson and wife made a second deed of trust, conveying the lots, with other property, to George Chandler to secure the payment of notes which he had given to Elizabeth Carroll and Ellen Carroll. This deed was filed for record on the next following day. This recital of the convej'ances exhibits the fact that the lien of the trust deed to Jackson, given to secure the payment of the note for $30,000, was long prior in time to the liens of the Messrs. Swift and Elizabeth and Ellen Carroll, and it was certainly in existence on the 18th of April, 1871, when that note was indorsed to Smith, the complainant's intestate. But it is earnestly insisted by the appellants that the act of Jackson in making the release to Dyer protects them against the Williams deed of trust. That the release was a gross fraud upon the rights of Smith, the holder of the Williams note, is plain enough, and we think both the Swifts and the Carrolls, had constructive, if not actual, notice that it was fraudulent. They were bound to know what was in the line of their title, that title being upon record. They are presumed to have known and (hey are affected by the recitals in the deed under 282 Swift v. Smith. [Oct. Term, Opinion of the court. which they assert their rights. The trust deed to Jackson in- formed them of the trust to protect the |30,000 note, and informed them that when the release was made and put upon record the note had not matured. The deeds to Mrs. Moody, to Dyer, and from Dyer to Jackson, all recited the continued existence of the debt down to June, 1872, and each' grantee, including Jackson, assumed its payment. The record assured them that Jackson was the owner of the lots when the release to Dyer was made, and that Dyer had no interest in the trust deed to be released. They therefore were informed that the release was substantially a release by Jackson to himself of a debt which he had assumed to pay. Even if his power to ex- ecute the trust coniided in liim by the trust deed was not ex- tinguished by his acquisition of the property, it was evident that he could not release the lien, while he remained the owner of the lots, without a gross abuse of his trust. In regard to Mr. Perkins, who was the trustee in Jackson's deed to secure the Swifts's loans, and who was their attorney to examine the title before the loans were made and the trust deed was ex- ecuted, it appears that he knew there was no release of the trust for the protection of the Williams note, and required one to be tiled. The release was brought to him by Jackson, unacknowledged. It was, therefore, in Jackson's possession, and, in fact, Dyer had never seen it. It was dated in 1871, October 2, and Perkins was informed that was not the date when the instrument was made. Jackson told him, indeed, it was the date when the debt was paid, but he was not author- ized to rely upon Jackson's assertion, more especially when he had before him, in Dyer's deed of the lots to Jackson, the ac- knowledgment that the note was unpaid on the 1st day of June, 1872, nine months after the time when Jackson atHrmed it had been paid, and had in view also Jackson's assumption, at that time, to pay it. The evidence leaves no doubt that the release was not made until August, 1872, when it was put upon record. Then Jackson, being the owner of the lots subject to the operation of the Williams deed of trust, was in such a 1880.] Swift v. Smith. 283 Opinion of the court. situation that lie could not, without an abuse of his trust, de- stroy the rights of the holder of the note. It is impossible, therefore, to maintain that there was not enough on the face of the recorded title under which the Swifts claim, and in the facts attending the execution of the release, to make it their duty to inquire whether the Williams note had been in fact paid, — enough to apprise them that the holder of that note could not be postponed or injured by the fraudulent release. The other appellants are in no better condition. When the deed of trust was made to Chandler to secure the debt due to the Carrolls, the prior trust protecting the Williams note was on the record in the line of their title. The}' were atfected by notice of it. And though the subsequent release to Dyer also appeared upon the record, the fact that Uyer had no interest in the property when the release was acknowledged and re- corded ; that Jackson was then the owner ; that be then held the lots under a deed from Dyer, declaring the property to be subject to the payment of the tbirtj^-thousand-dollar note, which he assumed to pay; that the note was not then mature, and that, therefore, the release was practically a release by Jackson to himself, — these facts were all before them when they took their lien, that is, the trust deed to Chandler. The Carrolls were dealing with one who they knew had been a trustee for the holder of the Williams note, and who was still such trustee, unless the trust had been extinguished, or had been transferred. 'The facts by which thej' were confronted were more than enough to put them upon inquiry whether the Williams note had been in fact paid. They revealed a plain abuse of his trust by Jackson, from which, with the knowledge of it that they must be presumed to have had, they could de- rive no advantage. In the face of it they could not obtain a priority over the earlier equity held by Smith. We conclude, therefore, that the Circuit Court correctly de- cided that the comp^inant has a lien on the lots described in the bill, by virtue of the deed of trust purporting to have been made by George N. Williams to Obadiah Jackson, and that 284 ' Swift v. Smith. [Oct. Term, Opinion of the court. the lien is prior to the liens held by the Messrs. Swift and by the Carrolls. We may add that there is no evidence of such laches as should postpone the complainant's lien to those of the appel- lants, or either of them. It is agreed, however, that in the decree in the Circuit Court there was an error in calculating the amount due to the com- plainant. The amount is too large by |554.27. The sum decreed to the complainant should have been |34,101.73 — thirty-four thousand one hundred and one dollars and seventy- three cents. We think, also, the court erred in not according to the de- fendants the right of redemption after the sale ordered by the master, according to the provisions of the statute of the State. In Brine v. The Hartford Fire Insurance Company, 96 U. S. Eep., 627, we held that the statutory right of redemption after a judicial sale under a decree of foreclosure of a.mortgage, or deed of trust, is a rule of property in Illinois, and that it must be accorded in the Federal courts equally as in those of the State.. It may be admittted that if the sale ordered in this case had been made by the trustee named in the deed of trust, or by a substitute under the power which the deed gave him, and made in accordance with its directions, no right of re- demption would exist. But such was not the sale directed. A strict foreclosure was not decreed. The bill prayed for nothing of the kind. It prayed for a sale, in default of paj'- ment, under the order and decree of the court, and the court decreed that its master should make the sale, after giving no- tice of the time and. place thereof, according to the course of practice of the court, not according to the provision of the trust deed. Het?ry W. Bishop^ it is true, was substituted as trustee in place of Jackson, but he was one of the masters of the court, and he was ordered to sell as master. He was required to make a report to the court, to pay into coui't any surplus arising from the sale, there to abide the court's order. The decree also contemplated a report of the sale by the mas- 1880.] Daniels o. Tearnet. 285 Ofiinion of the court. ter and a confirmation of it by the court. The sale, therefore, as ordered, was in all respects a judicial sale, instead of a sale by the trustee under the power conferred by the deed. Hence it comes within the rule declared in Brine v. Insurance Com- panj^ and the right to redeem should have been preserved in the decree. For this error, as well as for the mistake in the amount ad- judged to be due the complainant, the decree must be reversed. In all other particulars the decree was correct. Decree reversed, and the record rehiitted to the Circuit .Court with instructions to enter a decree in accordance with this opinion. Reveksed. WiLtiAM B. Daniels and Dennis M. Daniels v. Edward TEARNliY AND WiLLIAM L. WlLSON, EXECUTORS OF COLIN C. Porter, deceased. 1. The stay law of the State of Vhgiiiiii, passed April 30, 1S61, to prevent foieolosure and execution sales till the onlinauce should cease, U ini- eon.-ititntional as hnpairing the obligation of eontniel.s, and also as being one of a series of acts passed in fni-therance of seces.sion. 2. The bond which that act required the debtor to give to suspend the sale is invalid, becau.se required by an unconstitutional law. 3. But wliei-e tlie debtor has given such a bond and obtained the benelit of such delay, he is estopped from denying the validity of the bond. 4. Where tlie record shows tliat there was drawn in question the validity of such a bond, and that tlie decision of the State court was in favor of its validity, tliis court has jurisdiction to review such decision. Error to the Circuit Court of Jefferson county, State of West Virginia. Daniel B. Lucas, fof plaintifi's in error. Charles J. Faullmer, for defendants in error. Swayne, J. — This is a writ of error brought to reverse a 286 Daniels v. Tearitet. [Oct. Term, Opinion of tlie court. judgmeut of the Supreme Court of Appeals of the State of West Virginia. The case, as disclosed in the record, may he sufficiently stated, for the purposes of this opinion, as follows : On the 18th of April, 1861, a convention of the State of Virginia passed an ordinance of secession, and on the 30th of that month a law entitled "An ordinance to provide against the sacrifice of property and to suspend proceedings in certain cases." This ordinance declared that thereafter no execution (except in favor of the commonwealth and against non-resi- dents) should be issued, and that no sales should be made under deeds of trust or decrees, without tlie consent of the parties interested, until otherwise provided bylaw; and that where executions were in the hands of the officer, whether levied or not, if the debtors should offer bond and security for the payment of the debt, interest, and costs when the opera- tion of the ordinance should cease, the property should be restored and the bond should be returned, as in the case of a forthcoming bond, and should be a, lien on the realty of the obligors. If the debtor offered no bond, his property was to be appraised by three freeholders, at its value on the 6th of November, 1860, and unless the property would sell for the amount of the valuation, it should be restored to the debtor without lien. The declaration sets forth that the defendants, on the 1st daj' of June, 1861, made their joint and several bond, whereby they bound themselves to pay to the plaintiff the sum of $1,597.18 when thereunto requested, and that there was a condition affixed to the bond, which was: "That whereas, on the 25th day of March, 1861, a writ oi fieri facias was issued from the clerk's office, in the name of Colin C. Porter, against Benjamin F. Daniels, for $747.92, with interest from the 2d day of January, 1860, until paid, and $31.97 costs: if, there- fore, the said B. F. Daniels should pay the debt, interest, and costs when the operation of the ordinance before mentioned should cease, then the obligation to be void ; otherwise to be 1880.] Daniels v. Tearnet. 287 Opinion of llie court. in full force." It was averred that the operation of the ordi- nance had long since ceased, and yet that the defendants, though often requested so to do, had not paid the said sums of money or anj' part thereof, whereby an action had accrued, &c. Among other pleas, the defendants filed one in hoec cerbn: "For further plea 1o this action, the defendants say that the bond in the declaration mentioned was executed by Benjamin F. Daniels, a citizen of the State of Illinois, as principal, and by William B. Daniels and D. M. Daniels, as his securities, in pursuance to the requirements and conditions of a statute passed in violation of the Constitution of the United States, heretofore, to wit, on the 30th of April, 1861, by the conven- tion of the State of Vii'ginia, and that said statute was sub- sidiary to and in aid of and in furtherance of the objects and policy of the ordinance of secession passed theretofore by said convention, to wit, on the day of April, 1861, in violation of the Constitution of the Ur.ited States. "And the defendants say that they rely on the fact that said statute and ordinance were in violation of and repugnant to the Constitution of the United States for their defense and plea in this case; and that they are unconstitutional the defendants are ready to verify." The plaintiff demurred. The court sustained the demurrer, and the defendants excepted. . The parties thereupon waived a jury and submitted the case to the court, and a judgment was entered in favor of the plaintitf. The defendants removed the case to the Supreme Court of Appeals for review. That court affirmed the judgment of the lower court, and this writ of error was thereupon sued out. The objection raised as to the jurisdiction of this court is untenable. In Home Insurance Co. v. City Council, 93 U. S. Rep., 121, we said: "Where a judgment or decree is brought to this court by a writ of error to a State court for review, the case, to warrant the exeircise of jurisdiction on our part, must come within one of three categories: 288 Daniels v. Tearney. [Oct. Term, Oninion of the court. " 1. There must have been drawn in question the validitj' of a treaty or statute of, or anthorit}' exercised under, the United States; and the decision must have been against the claim which either was reUed upon to maintain. " 2. Or there must have been drawn in question a statute of, or under authority exercised under, a State, upon the ground of repugnance to the Constitution, or a law or treaty,, of the United States; and the decision must have been in favor of the validity of the State law or authority in question. " 3. Or a right must have been claimed under the Constitu- tion, or a treaty or law of, or hj virtue of a commission held or authority exercised u'lder, the United States; and the de- cision must have been against the right so claimed. (Rev. Stat., 132, sec. 709; Se-vier v. Haskell, 14 Wall., 15; Weston y. City Council of Charleston, 2 Pet., 449 ; McGwye v. The Commonwealth, 3 Wall., 385.") The plea is neither full nor technical, but it does aver the invalidity of the statute under which the bond was taken, be- cause it was in violation of the Constitution of the United States, and was passed "in aid and furtherance of the objects and policy of the ordinance of secession," and that the defend- ants "rely on the fact that said statute and ordinance were in violation of and repugnant to the Constitution of the United States for their defense and plea in this case." This implies clearly that the defendants claimed, in addition to what was averred, that the bond was void in every aspect, and that they had a right by reason of the premises to exemption from lia- bility under it. What is thus averred in a pleading is as effectual as if it were expressed. (Haight v. Holly, 3 Wend., 218.) It thus appears that there was drawn in question the author- ity of the sheriff, exercised under a law of the State, in taking the bond, and that the decision was in favor of the validity of that authority ; and that there was also a right of exemption from liability claimed under the Constitution of the United States, and that the decision was against the right so claimed. 1880.] Daniels w. Tearney. 289 Opinion of the court. These claims give us jurisdiction. Whether the,); are well founded remains to be considered. Jurisdiction is only "the right to hear and determine." The result of its exercise is the judgment of the court. That the ordinance of secession was void, is a proposition we need not discuss. The affirmative has been settled by the ar- bitrament of arras and the repeated adjudications of this court. (Texas v. "White, 7 Wall., 700 ; Hickman v. Jones, 9 Id., 197 ; Dewing v. Perdicaris, 96 "D. S. R., 193.) It was supplemented and complemented by the statute authorizing the bond to be taken. The latter was one of a series of acts passed by the secession convention, all looking to the confiiet of arms which was foreseen to be approaching. They were intended to pre- pare the State for the struggle, and were means to that end. The saving in the statute as to executions in favor of the com- monwealth and against non-residents was characteristic. It obviously contemplated the confiscation of the propei'ty of the' latter as a war measure. We cannot doubt that the stata-te> was invalid by reason of the treasonable motive and purpose- by which its authors were animated in passing it. The pro- vision that no executions should issue, and that no sales should' be made under decrees or deeds of trust, without the consent of the parties interested, " until otherwise provided by law," was clearly in conflict with the contract clause of the national Con- stitution. (Bronson v. Kinzie, 1 How., 311; McCracken v^-. Hayward, 2 Id., 208 ; Edwards v. Kearsey, 90 U. S. Kep., 95.) The circumstances which surrounded the convention and' controlled its action are a part of the history of the times, and we are bound to take judicial notice of them. (Brown ?;. Pi- per, 91 U. S. Rep., p. 37.) W^e have already pointed out the infirmities of the statute. One of them is expressly embodied in the bond. The- condi- tion is that the obligors shall pay when the statute undea- which it was taken " ceases " ; that is, that payment was to be -made at the time of its cessation, and not before. In the iHeautime the statute was to operate^as a stay law, and the oenditioibof 19 290 Daniels v. Tbarney. [Oct. Termj Opinion of the court. the bond was framed accordingly. This, as we have shown, was directly repugnant to the constitutional provision which forbids the impairment of contracts by State laws. The bond, as a statutory instrument, cannot have more validity than the statute which prescribed it as the means of giving effect to the statute in the way it was intended to operate. To hold the bond valid as a statutory bond, and the statute void, would be an inversion of reason. Viewed in this light, it is void for exactly the same reasons that the statute is void. They rest on the same basis, and must stand or fall togethei". The cred- itor was not to be consulted. His assent was not required. ;8o far as he was concerned the sheriff could proceed in invitum. The option to give the bond or not was with the debtor. The presence or absence of the creditor, and his assent or dissent, were alike immaterial. He was powerless in any event to control the result. The cases are numerous in which it has been held that where a bond contains conditions, some of which are legal and some illegal, and they are severable and separable, the former may be enforced and the latter disregarded. (U. S. v. Hodson, 10 Wall., 408.) But this bond does not belong to that class. The • condition is a unit, and indivisible. There are no separate -elements into which it can be resolved. It must be con- rsidered as an entirety, and can be viewed in no other light. As a statutory bond, therefore, the instrument is clearlj' void. Whether it is void also as a voluntary bond is a point upon which the opinions of all the members of the court are not entirely in accord. We pass from the subject without further remark, because, irrespective of that question, there is a view decisive of the case, in regard to which we are unanimous and our minds are free from doubt. Conceding the bond to have been wholly void in both as- pects, it does not by any means follow that it could not thei'e- after, under any circumstances, be enforced as between the parties, or that there is such error in the judgment that it must necessarily be reversed. > 1880.] Daniels v. Tearney. 291 Opinion pf the court. A corporation is liable for negligent and malicious torts, including libel, assault and battery, malicious prosecution, and false imprisonment. In such cases the plea of ultra vires is unavailing. The corporation is estopped from setting up such a defense. (National Bank v. Graham, 100 U. S. Eep., 702.) The same result is produced in like manner in many in- stances where a corporation, having enjoj-ed the fruits of a contract fairly made, denies, when called to account, the ex- istence of the corporate power to make it. (Railway Co. v. McCarthy, 96 U. S. K., 98.) The principle of estoppel, thus applied,, has its foundation in a wise and salutary policj'. It is a means of repose. It pro- motes fair dealing. It cannot be made an inst^ument of wrong or oppression, and it often gives triumph to right and justice where nothing else known to our jurisprudence can, by its operation, secure those ends. Like the statute of limitations, it is a conservator, and without it society could not well go on. If parties are in pari delicto, the law will help neither, but leaves them as it finds them. But if two personfi are in delicto, but one less so than the other, the former may, in many cases, maintain an action for his benefit agaiust the latter. (White V. Franklin Bank, 22 Pick., 181.) It is not necessary here to consider the extent and limitations of the rule. They are fully examined in the authority referred to. In the case in hand the obligee must be deemed wholly innocent, because the contrary is not alleged and it does not appear. Quod non apparet, non est. De non apparentibus et non existerdihus, eadem est ratio. " If the contract be executed, how- ever, that is, if the wrong be already done, the illegalitj' of the consideration does not confer on the party guilty of the wrong the right to renounce the contract ; for the general rule is, that no man can take advantage of his own wrong, and the inno- cent party, therefore, is alone entitled to such a privilege." (1 Story on Cont., sec. 6lO; Taylor v. Weld, 5 Mass., 116.) It is well settled as a general proposition, subject to certain exceptions not necessary to be here noted, that where a party 292 DjANiELS V. Teaknet. [Oct. Term, Opinion of the court. has availed himself for his benefit of an unconstitutional law, he cannot, in a subsequent litigation with others not in that position, aver its unconstitutionality as a defense, although such unconstitutionality may have been pronounced by a com- petent judicial tribunal in another suit. In such cases the principle of estoppel applies with full force and conclusive effect. (Furguson v. Landram,'5 Bush., 280; Same v. Same, 1 Bush., 548; Vanhook v. Whitlock, 26 Wend., 43; Lee v. Tillotson, 24 Id., 337; People v. Murray, 5 Hill, 468; Bur- lington V. Gilbert, 31 Iowa, 356; Railway Co. v. Stewart, 39 Id., 548.) In the case iirst cited an injunction was applied for to pre- vent the collection of a tax authorized by an act of the Legis- lature, passed during the late civil war, to enable the people of a county to raise volunteers and thus avoid a draft for soldiers, and that object had been accomplished. In disposing of the case the court well asked : " Upon what principle of exalted equity shall a man be permitted to receive a valuable consid- eration through a statute, procured bj' his own consent or sub- sequently sanctioned by him, or from which he derived an interest aud consideration, and then keep the consideratio.i and repudiate the statute ? " In The United States 7j. Hodson, supra, this court said : "When a bond is voluntarily entered into, and the principal enjoys the benefits it was intended to secure, and a breach occurs, it is then too late to raise the question of its validity. The parties are edopped from availing themselves of such a defense." Not to apply the principle of estoppel to the bond in this case would, it seems to us, involve a mockery in judicial ad- ministration and a violation of the plainest principles of reason and justice. The judgment of the Circuit Court of Jeti'erson county. West Virginia, affirmed by the Supreme Court of Appeals of that State, is reaffirmed by this court. Affirmed. 1880.] Hawley v. Upton. 293 Opinion of the court. William B. Daniels and Dennis M. Daniels v. Edward Tearney and William L. Wilson, executors of Colin C. Porter, deceased. Error to the Circuit Court of Jeiferson count}', State of West Virginia. SwAYNE, J. — There are no material points of difference be- tween this case atid case No. 97, between the same parties, just decided. Our opinion in the former decides the latter. The judgment of the Circuit Court of Jefferson county is affirmed. Theodore Hawley v. C. W. Upton, assignee in bankruptcy of the Great Western Insurance Co., a bankrupt. Tlie giving of a boad to pay cleteri-erl installments due for the stock of a corporation, Its tlellvery to an a^ent of the corporation, and tlie entrj' of the obligor's name as a stockholder on the books of the corpora- tion, constitute tlie obligor a subscriber to the stock quoad the cred- itors of the corporation, and liable to pay the amonnt of the bond, althongh no certificate of stock had been issued to him. Error to the Circuit Court of the United States for the Dis- trict of Iowa. Parsons 'etnent charged is not proved. 2. Tlie indipci'iminiite practice of reis.sning patents animadverted on. Appeal from the Circuit Court of the United States for the District of Massachusetts. Johv S. Abbott, for appellant. Mitchell ^ Hungerford, for appellee. Bradley, J. — The appellants in this case tiled a bill aojainst the appellee, alleging that the latter had infringed certain letters-patent owned by the appellants, which liad been grant- ed to Asa M. Swain on the 16th of May, 1860, for a new and improved water wheel, and which had been surrendered and reissued on the 19th of JS'ovember, 1872. The bill sought an account of profits, damages for the infringement, and a per- petual injunction against further use of the alleged invention. The defendant filed an answer denying infringement and as- sailing the patent of the complainants on various grounds; such as prior discovery and invention by other persons, illegalil}' of the new issue, &c. Proofs having been taken and the cause heard, the Circuit Court dismissed the bill, on the ground that, according to the true construction of the patent sued on, the defendant did not infringe. It was conceded that if the reissued patent should be con- strued literally, without 'restraining the generality of its claims by a reference to the original patent, the w-lieels made by the defendant would be an infringement; but the court, in view of the state of the art at the date of Swam's invention, and of the distinct limitation of that invention in the orighial patent to a wheel of specific construction and form, considered itself 1880.] Turbine Co. v. Ladd. S21 Opinion of the court. bound to construe the claims of the reissued patent in accord- ance with such hmitation, in order to avoid the conchision that it was for another and different invention from that originally patented. From a careful examination of the evidence in the case we are satistied that this was the most favorable view that could have been taken for the complainants. A comparison of the original letters-patent, including the drawings and model, with the reissued patent, makes it very evident that the latter is the result of au effort to enlarge the scope of the patent so as to include and embrace within it matters and things that were not embraced in the original invention. The original specifi- cation, drawings, and model all agree in describing a specific wheel and associated apparatus as the subject of the invention secured by the letters-patent. They distinctly describe a wheel with its floats, each made of a single piece of metal, having their face sides, where the water strikes, of a paraboloidal form, with their bottoms formed by revolving the curves on their axes, and arranged in a particular direction to receive the water from the guides, and having the rim of the wheel covering the floats so curved as to force the water down rapidly in the lower curved parts or bottoms of the floats, the water being turned down between the curb and wheel and lower curb; they describe an annular chamber situated above and outside of the wheel, with slots in its bottom to receive and steady the guides when raised with the gate, and which is filled with water, forming a sort of stuffing-box ; they describe a cylindrical gate, below the annular chamber surrounding the curb below the wheel, provided at top with a flange to which the guides are attached, and which is opened by being lowered to let the water into the wheel through the guides, and is shut by being raised up to the bottom of the annular chamber; lastly, they describe a particular contrivance for adjusting the wheel on its step, which is of no consequence in the disposal of the present case. Substantially, this is the entire descrip- tion : The wheel, formed and made as stated ; the annular chamber ; the cylindrical gate with the guides attached to its 21 822 Turbine Co. v. Ladd. [Oct. Term, Opinion of the court. flange; and the contrivance for adjusting the wheel on the step. There is also a description of the inclosing case and curbs, and the machineij for raising and lowering the gate and the wheel ; but these parts have nothing to do with the controversy. The claim of the patent was threefold : first, for the annular chamber, with slots in the bottom to I'eceive the guides ; sec- ondly, the combined arrangement of the guides, the cylindric- al gate, and the annular chamber, as unitedly' related to the wheel ; thirdh% the step arrangement. Here we have a clear and distinct speciiication of an invention, and of the particular imachinerj' which is its subject-matter. The wheel is not claimed, either as to its form, or fa.shion, or mode of operation ; nothing is claimed but the annular chamber, the peculiar gate and guide arrangement, and the step adjustment — none of which things are in controversy in this suit. But a change comes over the scene : the patent becomes the property of a corporation that manufactures wheels ; a monop- oly of the business is ver^' desirable ; other manufacturers make turbine wheels approaching somewhat in appearance to that described in Swain's patent. The usual remedy in such cases is resorted to. A reissue of the patent is sought, with expanded claims, sufficiently general and comprehensive to -embrace a wide monopoly of structure and to shut up com- peting establishments. In this way the patent laws have been ,made the instruments of great injustice and oppression. The .real object and design of a reissue of a patent has been abused and subverted. The intent of the law was to allow a correc- tion to be made " whenever a patent is inoperative or invalid, by reason of a defective or insufficient description or specifica- tion, or by reason of the patentee's claiming in his specification as his own invention more than he has a right to claim as new; and when the error has arisen by inadvertency, accident, or mistake, and vvithout any fraudulent or deceptive intention." These are the words of the law granting the i-ight. It was never intended to allow a patent to be enlarged, but to allow 1880.] Turbine Co. v. Ladd. 323 Opinion of the court. t the. correction of mistakes inadvertently committed, and the restriction of claims which had been improperly made, or which had been made too broad; — just the contrary of that which has come to be the practice. In a clear case of mis- take — not error in judgment — the patent may undoubtedly be enlarged ; but that should be the exce[ition, not the rule ; whereas the enlargement of claims has become the rule, and their contraction the exception. These remarks are well illustrated in the case before us. We have shown what was the original invention described and claimed. After the lapse of twelve years and a half the pat- entee — or, rather, his corporation assignee — discovers that through inadvertence and mistake his specitication is wrong, and needs correction ; and a reissue is obtained with eleven diti'erent claims. These claims are quite ditferent from those of the original patent, and are intended to give to the pres- ent proprietors a large and valuable monopoly. Here are some of the claims : 1. A water wheel the floats of which have a discharge-line extending from the crown at their iimer edge to the lower outer edge of the wheel. 2. The combination in a water wheel of a crown, band, and floats having their discharge-liue extending from the crown at their inner edge to their lower outer edge. 3. The combination in a water wheel of a crown and floats having their discharge-line extending from the crown at their inner -edge to the lower outer edge. 5. A water wheel having an ett'ectjve inward flow and dis- charge of part of the water, and an efl'ective downward flow and discharge of part of the water simultaneously in one wheel, whereby the effective area of discharge is increased without increasing the diameter of the wheel. Here is a sweeping generalization, which', taken literally, would give to the patentee a monopoly of all water wheels having simultaneously an efl'ective inward and downward flow and discharge, whatever might be the shape of the floats or 324 Turbine Co. v. Ladd. [Oct. Term, Opinion of the court. of tte cro\A'n. This was certainly not the invention described or suggested in the original patent. The invention of a wheel was not claimed at all; a wheel was described, but it was a wheel made after a particular pattern or form, and adjusted to a particular apparatus for the reception and discharge of the water. Its buckets were described as paraboloidal ; its rim over the buckets curved downward and inward so as to force the water down rapidly in the lower curved parts or bottoms of the floats. No intimation is given that a wheel of a difler- ent form would answer the purposes of the invention. The defendants do not copy either of these features in their wheels. Their floats are not paraboloidal, but waving ; the rim is not curved downward and inward, but is horizontal. It is very apparent why the claim has been generalized as it has been. The patentees desire to secure the monopoly of every centre- vent wheel, of whatever shape or form, which discharges the water both inwardly in the centre of the wheel and down- wardly from the bottoms of the floats beneath the wheel. But that would be a new invention, very different from what was described and claimed in the original patent. To warrant this extension of the claim, the specification of the reissued patent contains material variations from that of the original, frequently stating that a particular pajt mai/ be constructed thus and so, when the original required it to be thus and so. It speaks of " the upper horizontal edge of the floats," when no such thing is mentioned in the original ; but, on the con- trary, the rim over the floats was described as curving inward and downward, and as being so curved for a special purpose and eft'eet. Instead of correcting inadvertent mistakes in the specification which rendered the patent inoperative and void, the pretended corrections are evidently intdnded to widen the scope of the patent and to make it embrace more than it did at first. So far as description went, the original specification was as perfect as the new one. The mistake of the patentee, or his assigns, seems to have been in supposing that he was entitled to have inserted in a 1880.] Turbine Co. v. Ladd. 325 Opinion of the court. reissued patent all that he might have applied for and had in- serted in his original patent. The appellants produced on the argument exhibits tending to show that the patentee, before obtaining his original patent, had made and done all those things which are embraced in or covered hy the reissued pat- ent. If this were true, it would be nothing to the purpose. A reissue can only be granted for the same invention which was originally patented. If it were otherwise, a door would be opened to the admission of the greatest frauds. Claims and pretensions shown to be unfounded at the time might, after the lapse of a few years, after a change of officers in the Patent Office, the death of witnesses, and the dispersion of documents, be set up anew, and a reversal of the first decision obtained without an appeal, and without any knowledge of the previous investigations on the subject. New light hrea;k- ing in upon the patentee as the progress of improvement goes on, and as other inventors enter the field, and his monopoly becomes less and less necessary to the public, might easily generate in his mind an idea that his invention was really more broad and comprehensive than had been set forth in the speci- fication of his patent. It is easy to see how such new light would naturally be reflected in a reissue of the patent, and how unjust it might be to third parties who had kept pace with the march of improvement. Hence there is no Safe or just rule but that which confines a reissued patent to the same invention which was described or indicated iu the original. Since, therefore, any extension of the reissued patent beyond the scope of the invention set forth and fairly indicated in the original specification, drawings, and model would be fatal to the patent itself, we think that the appellants ought to be sat- isfied with the course taken by the circuit judge in so constru- ing the patent with reference to those original tests as to re- strain and confine the intent and meaning of the claims within legitimate and admissible bounds. And, so construed, there is no plausible pretense that the defendant is guilty of an in- fringement. 326 , Turbine Co. v. Ladd. [Oct. Term, Opinion of the court. If the appellants insist on the broad construction of the claims in the new patent, they must take the risk of being met with previous achievements in the same line of improve- ment which may 'very seriously endanger the validity of their patent. Several structures have been produced on the hear- ing antedating the invention of Swain, of which it will he very difficult to contend that they do not embrace the principal feature in Swain's wheel sought to be appropriated by bini. If the evidence with regard to Stowe's wheels — constructed in 1837, 1841, and 1850 — is to be relied on, it is not a sufficient answer to say that they were merely spout-wheels, and were never used under water as turbines. They are suhstantially the same wheel as Swain's; and, whether used as turbines, or only under the operation of a spout, they anticipate his struct- ure. The mere change of use by placing them in a different position with regard to the water is not patentable. The Temple wheel, the "Whitney wheel, and the Greenleaf wheel all conduct the water in the same lines that Swain's does, from its entrance into the wheel to its final departure from it; and if, on an investigation of dates, we should find that either of these wheels antedated Swain's invention, we should probably be forced to the conclusion that they each contained the fundamental element of a simultaneous inward and downward flow and discharge of water through the wheel, which the appellants claim as the principle of Swaiji's inven- tion. We do not deem it necessary to go into a iiiore particular examination of the evidence at this time. We have examined it carefully, and have come to the conclusion* that the view taken of the case by the Circuit Court was as favorable to the appellants as the}' could reasonably ask. The decree is affirmed. Affirmed. 1880.] White v. The United States. 327 Statement of the case. Robert Cornell White v. The United States. On tho special facts of this case, tlie court decides tliat the UuitiMl Stites are not liable for tlie liiie of a certain vessel nsed in tlie transportation of ti'oops. Appeal from the Court of Claims. The findhig of facts by the lower court was as follows: 1. The claimant was in the year 1864, and afterwards, the owner of a steam vessel called Wyoming, which was built in 18.53, and before entering the service of the government, as hereinafter stated, was run between the city of New. York and Elizabetbport, N. J., and she was not built to go to sea. 2. In February,. 1864, the claimant sent said vessel from New York to Hilton Head, S. C, in charge of Charles H. Campbell, who, as claimant's agent, executed the charter-party annexed to the petition herein as exhibit A. Under this char- ter-party the Wyoming was in the service of the government frotn March 7, 1864, till February 6, 1866, when, at the request of the claimant, she was discharged from service and returned to him at Port Koyal. 3. When she entered the service she was tight, staunch, strong, and well and sufficienlly tackled, appareled, and fur- nished; when she was returned to claimant in February, 1866, she was in a bad condition, her frame being twisted and drawn out of shape, and she was shaky. After being so returned she was taken back to New York by claimant. 4. In May, 1864, an expedition left Hilton' Head for Ashe- poo River, under the command of Brigadier-General William Birney, and the steamer Wj'oming was one of the boats of the expedition, being used as a transport. The point for the land- ing of the expedition was selected by General Birney, aiter an inspection of the river and its banks, being regarded by him as the best point for the landing of troops from steamers, ref- erence being had to the conformation of the banks and the character of the bottom of the river. 828 White v. The United States. [Oct. Term, Statement of the case. When the expedition was moving up the Ashepoo River, Captain John C. Dutch, of the United States Navy, was or- dered by General Birney to go on board' the Wyoming, which was the le^iding steamer, and land the expedition at Bennett's Point. At that time R. S. Parker was captain of the Wyom- ing. He made to Dutch a verbal objection to landing at that point, but she was'nevertheless landed there, broadside to the shore, and made fast, bow and stern, to objects on the shore. Another steamer came-to alongside of her, from which men and horses were passed to the shore over the deck of the Wy- oming. When the Wyoming was landed the tide was high and long planks were passed from her to the shore. When she was landed she was under the control of Dutch; but as soon as the troops and horses were landed .from her. Captain Parker resumed control other. To him General Birneygave orders to haul the Wyoming oif from the shore. General Birney, after giving the order, was absent about an hour on a reconnaissance and posting the troops. When he returned the Wyoming was laying where he had left her, but the other boats were in deep water. General Birney then repeated the order to Captain Parker to haul off into deep water, inform- ing him that the boat would have to remain there several hours. Captain Parker did not obey his order, and about live hours after the landing the Wyoming was left by the water, and got around and careened over almost upon her beam end, in which position she lay for some hours before she could be got off, whereby she was strained so that some of her seams opened, and she leaked so as to require both of her pumps and a gang of men to keep her free from water. With the aid of .-some of the other vessels of the expedition she was, at the re- turn of high tide, got off, after having been some hours on the bottom, and returned with the expedition to Hilton Head. When .she arrived there she was leaking badly, and she was sent by the government officers to the government machine, .shop on St. Helena Island, where she was temporarily repaired. 5. In July, 1864, the Wyoming was sent with another ex- 1880.] White v. The United States. 329 Statement of the case. pedition, in the course of which, in some of the approaches to Charleston, she was run alongside of a wharf, and the water receded and left her aground for a time. "While there a bat- tery of artillery was taken from another steamer and landed across the Wyoming. 6. In November, 1864, when on another expedition, some of the stanchions which supported her upper works were cut to got artillery out of her. This did not affect her hull, but weakened her upper works; but to what extent does not ap- pear. (At the same time her bulwarks were taken out of her.) 7. After her return to New York, in 1866, the claimant caused repairs to be made upon her to the amount of more than $17,000. Said repairs embraced a complete overhauling and renovation of the whole vessel and her boilers and engine. The conditiort of said vessel at the time of her dischai'ge from the government service, which made such repairs necessary, resulted from the ordinary wear and tear of the service in which she was engaged under the terms of the charter-party. 8. The claimant became entitled for the services of the Wyoming during the mouth of August, 1864, to the sum of $5,425; against which the officers of the government charged the following items : For repairs put upon her at the govern- ment shop, $1,257.21 ; for quartermaster's stores, $1,140.80 ; for commissary stores, $352.24; for lost time, 14^^ daj's, $2,486.45; total, $5,236.70. On the 14th of December, 1864, the agent of the owner of the Wyoming addressed to the Quartermaster-General of the Army a written protest against said deductions, declaring the most of them to be unwarranted and unjust ; but stating that, since it was impossible for him to receive payment without the deduction, he would aqcept the same, with the understanding, however, that his rights to a future investigation should be in nowise prejudiced. Thereafter said agent received and re- ceipted for the balance of $188.30, which remained of the earn- ings of" the boat for the month of August, after making said deductions. The repairs so charged against said earnings were 330 White v. The United States. [Oct. Term, Slatement of the case. those put upon her after her return from the Ashepoo liiver expedition, and the 14/j days of lost time charged were the days in which she was laid up for those repairs. Those repairs were necessary to keep the -vessel from sink- ing, and the claimant had no facilities at Hilton Head or in that region for making them, and his agent was compelled by her condition to have her overhauled by the government, and she was therefore sent to the government machine shop, and there repaired as aforesaid. 9. In July, 1864, the Wyoming was used in the transporta- tion of troops from Beaufort and Hilton Head to John's Island, to be used in an attack on the rebel positions on that island, and also upon James's Island. In going out of the harljor of Hilton Head there was some delay on her part, in consequence of which she failed to carry out promptly the instrtictions which had been given her. In consequence of this failure, Major- General Foster, then commanding the Department of the South, removed from the command of the Wyoming the cap- tain placed on her by the claimant, and placed the vessel under the conmiand of one Hard}-, who, after the return of the ves- sel from said expedition, under orders of the chief quartermas- ter of the department, turned her over to one Cannon, under whose charge she was sent to the government machine shop at St. Helena Island for repairs, where she remained fourteen and a half days. The said Cannon was on her fifteen days, for which the agent of the claimant paid him $75. Before paying it, the agent refused to give Cannon anything unless he would write a receipt showing the circumstances under which he got possession of the vessel, and told Cannon that if the government put him on the vessel it should pay him. Captain Moore, assistant quartermaster, told the agent that if he did not pay Cannon he could not have the vessel turned over to him again ; and thereupon the agent paid that sum. For the time covered by that payment the claimant also paid the salary of the captain employed by him. Upon the fore- going "findings of fact" the Court of Claims, on the 7th day 1880.] White v. The United States. 331 Opinion of the court. of Februaiy, A. D. 1876, ordered, adjudged, and decreed that the petition of the appellant be dismissed. John J. Weed, for appellant. Edwin B. Smith, Assistant Attorney -General, for appellee. Waite, C. J. — The Court of Claims has found expressly that the condition of the vessel when she was discharged from the charter which made the repairs sued for necessary, resulted from the ordinary wear and tear of the service in which she was engaged under the charter-party. This is conclusive against any recovery for these repairs. It was expressly provided in the charter-party that the govei'nment need not make good any loss arising from ordinarj' wear and tear. Although if this one fact had been omitted from the findings a ditferent judgment might with more propriety have been contended for, with it found the conclusion reached by the court *below was unavoidable. This finding is not inconsistent with anything else that ap- pears in the case. The vessel was sent u[) the Ashepoo River as a tran^^port. She did land, under the orders of the general in command of the expedition, at a place selected by hira against the objection of the master put in charge of her navi- gation by her owner, and she did ground and was badh' strained while at the landing; but it is nowhere found that she would have grounded, or that she would have been unusually strained, if the master had obeyed the further order of the general, and moved her away from the shore into the stream after tlie troops and horses were oft". Certainly the government cannot be held responsible for losses arising from a disobedience by the master of the orders of a military officer in command of any expedition en which she was properly sent under her charter. She w&s chartered for war service and bound accordingly. If loss happened from a " war risk," that is to say, if the war was the proximate cause of the loss, the damage was to be made good by the government; but if it was caused by the refusal 332 "White v. The United States. [Oct. Term, Opinion of the court. of the master to obey those iu command of a miUtary expedi- tion to which the vessel was attached, the neglect of the mas- ter, and not the war, would be proximate cause. This neglect of the master was a marine risk which the owner assumed. Damages arising from such a risk the owner was bound to re- pair under his covenant to keep and maintain the vessel tight, staunch, and strong during the continuance of the charter. The findings,, taken as a whole, are to be construed as meaning that the repairs put on the vessel after she was discharged from service were not rendered necessary -by any of the risks as- sumed by the government under the charter. What has thus been said is applicable also to the claim for deductions from the pay of the vessel during the month of Au- gust, 1864, for lost time and repairs after her return from the Ashepoo River. The charter expressly provided that time lost in consequence of anj' breach of the covenants by' the owner should not be paid for, and the court below in efi:ect found that the damages repaired were caused by the neglect of the master to move the vessel out into the stream after the landing had been completed. No complaint is made in the petition of the amount of the charge. The right to recover is put entirely on the ground that the damages were such as the government was bound to repair, and, therefore, that the repairs were not chargeable against the owner. In the petition the quarter- master's and commissary's stores are included as part of the cost of the repairs, which was, no doubt, in accordance with the facts. The money paid to Cannon for his services on board the vessel cannot be recovered from the United States. The claim was made by Cannon against the owner, and not b}' the United States. It was voluntarily paid, with a full knowledge of all the facts. It may be that the payment was made to avoid a con- troversy with the United States, but that furnishes no ground of recovery. (Silliman v. United States, 101 U. S., 465.) The judgment is affirmed. Affiemed. 1880.] "WiLTZ V. Geeen. 333 Opinion of the court. The Steamboat Sabine, &c., Pibrkb S. Wiltz, public admin- istrator OF Sarah C. Shriley, deceased, America B. Selby, et al., v. The Steamboat Eichmond, Nathaniel S. Green, John N. Boffinger, et al. The court refuses to reverse ii decree in admiralty wliere the questions involved are of fact onlj' and tlie two lower conits have both con- curred. Appeal from the Circuit Court of the United States for the District of Louisiana. R. H. Marr and Beniinck Egan, for appellants. Albert Voorhies and M. M. Cohen, for the underwriters, inter- venors, and appellees. Given Campbell, for the owners of the Richmond, appellees. Waite, C. J. — This is an appeal from a decree in admiralty which was entered before the act of February 16, 1875, went into effect; consequently the whole case comes up. On exam- ination we find that, so far as the merits are concerned, the questions involved are of fact only. Two courts have already found against the appellants. Under such circumstances the burden is on the appellants to show the error, with every pre- sumption in favor o-f the decrees below. (The S. B. Wheeler, 20 Wall., 386.) The testimony is voluminous and conflicting, but it certainly makes no such clear case in favor of the appel- lants as will justify us in reversing the decrees against them. The decree of the Circuit Court is consequently afhrmed, and, as it will serve no useful purpose to enter into a discussion of the evidence in detail, no further opinion will be delivered. Having reached this conclusion, it is unnecessary to consider how much of the case has been brought here by the appeals that were taken. Affirmed. 334 GiBBS V. DiEKEMA. [Oct. Term, Statement of the case. James G. Gibbs v. Weipke Diekema, D. B. K. Van Kaalte, John Ten Have, Dirk Miedema, John Eoost, Edward J. Harrington, and J. Van Sohlevan. 1. A vpiiilc'e of lanils to bi> put into possession bjr an ordi'i- on tlic com- mi>sioiier fif the land oHici:; for a patent, to whom the conunissioner conveyed more tliaii the ordei- ealled foi' : Held, A tiMistee fof the vendiii's as to tlie balance. 2. Damajijes fof vexations ilelay may be adjndged by this cornt as well in ai)peals as in writs of error. Appeal from the Cii-cuit Court of the United States for the Western District of Michigan. Tlie hill in tliis cause was filed to compel the defendant and appellant to convey to the complainants, composing the Hol- land Harbor Board, three tliousand eiglit hundred and eight and j^jj- acres of land, wliich had been wrongfully patented to him by the State of Michigan. It is alleged in the bill, and admitted by the answer, that the complainants had, by virtue of several acts of the Legis- lature of the State of Michigan, and in virtue of the labor in drainage and reclamation in pursuance of said several acts done by them, become entitled to all of the State swamp lands in townships six north of range fourteen west, and six north of range tifteen west, in the State of Michigan, amounting in the aggregate to upwards of eleven thousand acres, for the benefit of the city and township of Holland, Michigan, to aid in the improvement of the Holland harbor. Prior to the 22d da}- of November, 1870, the said complain- ants, in the progress of the work and in pursuance of their duties, had disposed of all these lands, eilher by deed or con- tract, except 1,560 acres, which they on that day contracted to sell to one Eobert M. Kisdon, of Manistee, Michigan, who acted through and by his agent, 0. K. L. Crozier, in negotiating for said remaining lands, which were particularly described in the contract. The last description and clause of the contract are as fol- 1880.] GiBBS V. DiEKEMA. 335 Statement of the case. lows: "The iiortlnvest (l) one-tburth of northwest (^) oue- fourtl), of section number two (2), in town six (6) north of range fifteen (15) west, 40 acres; in all, fifteen hundred and sixty (1,560) acres, more or less." Risdon was to pay $1,404 in all, or ninety cents an acre, of which he paid |10 down, and was to pay, and did pay, $341 December 15, 1870, and was to pay $1,053 and interest De- cember 1, 1872. When such last payment' should be made, the Holland Harbor Board was to give Risdon an order on the commissioner of the State land office for patents of tlie land. At the conclusion of this contract is this chiuse : " This purchase is intended to be of all the lands still belonging to the said Holland Harbor Board, the same being fifteen hun- dred and sixty acres, more or less, and at ninety (90) cents per acre. If it shall be-found that any of tiie above-described lands have, hefore this date, been conve3-ed to other parties, such lands shall not be included in this sale." October 1, 1872, Risdon sold and assigned said contract to defendant Gibbs, who paid to the Harbor Board the balance upcjn the contract, and received an order on the commissioner of the State land office for patents of the lands in the following words : "Office of the Holland Harbor Board, Holland, Mich., Oct. 10, 1872. To the Commissioner of the State Land. Office, Lnnsing, Michigan : Please issne patents to James S. Gibbs for all the balance of the lands, more or less, sold by and belonging to said Holland Harbor Board to Robert M. Risdon, of Manistee, as described in contract, the same being part of the lands granted to the harbor commissioners of the city and township of Holland, in the county of Ottawa, Michigan, for the improvement of Black Lake harbor. W. DiEKEMA, B. LeDEBOER, Chairman. Secretary.'''' Gibbs presented this order to the commissioner of the State land office, with a written request indorsed thereon and signed 336 GiBBS V. DiEKEMA. [Oct. Term, Opinion of the court. by himself to issue patents for all the vacant swamp lands in towns six north of ranges fourteen and fifteen west. Gibbs did not present to the commissioner the Eisdon contract. The land commissioner issued patents to Gibbs for over 5,000 acres, instead of 1,560 acres. Alfred Russell, for appellant. /. W. Stone, for appellees. Waite, C. J. — The contract with Eisdon embraced the lands specifically described, and no more. The last clause in the contract was evidently added by way of limitation, so as to exclude from the sale any of the parcels specifically described which should be found to have been previously contracted to other parties. The order on the ccrmmissioner of the land office in favor of Gibbs was for patents for the lands sold Eisdon, as described in his contract. No other reasonable interpretation can be put on the language of that instrument. It follows that Gibbs took the title to all lands patented to him, and not included in the Eisdon contract, in trust for the com- plainants. If either Eisdon or the other vendees of the complainants were proper parties to the suit, they certainly were not indis- pensable parties. The objection that they have not been joined, in the suit comes, therefore, too late iu this court. The claim that the complainants are not entitled to a decree because, in some cases, title was left in the State to avoid the payment of taxes, is frivolous. ^ ' The decree is affirmed; and it is so apparent the appeal was vexatious and for delay only, that we adjudge to the appellees $500 as just damages for their delay. While section 1010 of the Eevised Statutes includes, in express terms, writs of error only, section 1012 provides that appeals from the Circuit and District Courts shall be subject to the same rules, regulations, and restrictions as are or may be prescribed in law in cases of writs of error. This gives us authority to adjudge damages 1880.] Clark v. The United States. 337 Statement of the case. for delay on "appeals as. well as writs of error, and our power is not coniiued to money judgments only. ' . Affirmed. James S. Clark and Edward Pulton, partners as J. S. Clark & Co., v. The United States. A payment made to a provo«t-marslial to obtain a release of some cotton from seizure by the military aniliority, (tlic money so paiil having afterwaixls been seized by tlie United States,) held, on the facts, to be a case of bribery, and not of extortion, wliicli conld not be recovered, baclf. Appeal from the Court of Claims. This was a suit brought by the appellants agains-t the United States to recover money alleged to have been extorted from them by Col. H. Robinson, provost-marshal of the Department of the Gulf. They held the following permits to transport the cotton : "Treasury Department, October 26, 1864. " J. S. Clark and E. Fulton allege that prior to the 2d day of July, 1864, under authority of George S. Denison, special agent of the Treasury Department at New Orleans, they pur- chased in the parishes of East and West Feliciana, in the State of Louisiana, 3,435 bales of cotton, upon which they advanced the sum of $123,200 in United States- currency, as part pay- ment for the same, and became liable to pay the balance of the purchase-money. " That after purchasing and becoming owners of said cotton, and. while in the act of moving the same to market for sale, they ascertained that by the passage of the act of July 2, 1864, they were prevented from proceeding with the shipm'ent of said cotton, or in any way interfering with the same, and it now remains at the points above named, exposed to the depre- dations of guerrillas. They therefore ask that authority may 22 338 Clark d. The United States. [Oct. Term, Statement of the case. be granted them to complete the transaction commenced and conducted thus far under the prescribed rules and regulations of the Treasuiy Department. "After full examination, and in view of the fact that the loyalty of the parties is not questioned, and that there are no adverse claimants to said cotton known to the department, authority is hereby given to the said J. S. Clark and E. Fulton to transport by way of New Orleans (where all government fees and dues shall be paid before shipment therefrom) the .cotton in question; provided they shall tirst present to the act- ing collector of customs at Ne\y Orleans the original authori- ties or permits under which they acted, or copies thereof cer- tified by the officer with whom they are filed, with proof to his satisfaction that the cotton was actually purchased in good faith, under and by virtue of said authorities, and payment made and liabilities incurred as alleged; and provided further, that the said J. S. Clark and E. Fulton shall first execute to the satisfaction of the said acting collector at New Orleans a bond, with sufficient security, in the penalty of |250,000, con- ditioned that all fees and taxes, in an}- way due or accruing to .the Government of the United States from said cotton, shall .be paid on its arrival at New Orleans, and any cotton trans- j)orted or attempted to be transported tinder this authority, without the original permits or authorities, or certified copies ..thereof and proof herein required, shall be seized and pro- .ceeded against for forfeiture and condemnation to the United States. "The acting collector at New Orleans shall record and file in his office a copy of this authority, and deliver the original ,to the said J. S. Clark and E. Fulton, after indorsing upon it his certificate, attested by his official seal, that the required bond has been duly executed and delivered. "The conditions herein stipulated having been complied with, the cotton moving under this authoritj', or under permits given in pursuance hereof, wiU be allowed to be transported without hinderance or delay. 1880.] Clark v. The United States. 339 Statement of the case. " The leave hereby granted is confined to so much of said cotton as had been nctually paid for, or said parties had become legally liable to pay for, under and by virtue of permits prop- erly issued by authority of this department, prior to said 2d day of July, 1864, and the power to revoke the authority hereby granted at any time, should satisfactory cause appear, is reserved to this department. "W. P. Fessenden, "Secretary of the Treasury." " Executive Mansion, October 26, 1864. " The Secretary of the Treasury having, by the terms of and upon the conditions contained in the foregoing paper by him signed, directed that J. S. Clark and E. Fulton be allowed to trans[.)ort from certain localities in tVie State of Louisiana, to markets in the loyal States or elsewhere, 3,435 bales of cotton owned by them in said State, and that permits be given them for that purpose by the acting collector of customs at New Orleans: "It is ordered that all cotton moving in compliance with such direction of the Secretary of the Treasury, or permits granted in pursuance thereof, shall be free from seizure or de- tention by any officer of the government; and commandants of military departments, districts, posts, and detachments, naval stations, gunboats, flotillas, and fleets will observe this order, and give the said J. S. Clark and E. Fulton, their agents and transports, proper facilities and passes for the purpose of get- ting said cotton through the lines, and safe conduct within our lines while the same is moving in strict compliance with the directions of the Secretary of the Treasury and permits above referred to. "Abraham Lincoln." And the additional facts are as follows : On the arrival of the steamer Sciota at New Orleans, she and hfer cargo were seized by the United States military police, under the control of Col. Harai Kobinson, then acting as provost-marshal-general of the Department of the Gulf, of 340 / Claek v. The United States. [Oct. Term, Statement of tlie case. which department Gen. S. A. Hurlburt was then in com- mand. After the seizure of the Sciota and her cargo, Gen, Hurlbnrt issued a special order, stating that, I)y direction of the major- general commanding the military division west of the Missis- sippi, the cotton brought by the steamer 8ciota should.be dis- posed of as ibllows : A certain number of bales (number not shown) to be given to claimants; the remainder to be turned over to 0. N. Cutler, the United States purchasing agent ; and that the claimants should give bonds for their appearance when required. On said Robinson's receipt of said order he sent for the claimants, and they appeared before him and gave bonds; at which time they did not exhibit to him any papers in relation to the shipment of cotton. It was not the province of said Robinson to have anything to do with the receiving or disposing of the cotton. On or about December 21, 1864, in the evening, after office hours, the claimants called on the said Robinson at his dwell- ing, and showed him the papers aforesaid, dated October 26, 1864, signed by the Secretary of the Treasury and the Presi- dent, which the said Robinson had not before seen or had any knowledge of, and the claimants asked him what he thought of that permit. He told them he thought it was a sweeping one; that it covered all ground. They answered that, not- withstaflding .that permit, the cotton aboard the Sciota had been seized and detained, and themselves put under bond. He asked how that could be. They answered that the permit was of no account unless signed by the major-general com- manding the department. He asked them if they had pre- sented it to the general commanding. They said yes, and it had. been refused. He then advised them to go to General Canby, who commanded the military division west of the Mississippi, and show the permit to him. They replied: " You know that is useless by the very order which put us under bonds; it states by order of the general commanding the mili- tary division west of the Mississippi." They further said they 1880.] Clark v. The United States. 341 Statement of the case. were satisfied that it could not be done except by money; that money was wanted, and that they were willing to pay most liberally to have it signed; that that would cover and release the cotton. The}' said they would pay |10,000 to have that presidential pertait indorsed and their cotton released. Pie then told them to leave the. permit with him and he would see about it. The next day the said liobinson took the permit to General Hurlburt, and told him the parties wished to have it signed by him. General Hurlburt replied: "Yes, I have seen this per- mit before. I have refused to sign it." Robinson then said : " General, these men have oftered a large amount of money to get this permit indorsed; there's money in it." Hurlburt perused the permit carefully, and said : " You must take that to Mr. Denison, and have him certify that the proper bonds have been tiled by these parties, Clark and Fulton." Robin- son took the permit to said Denison, and advised him of the wishes of General Hurlburt. Denison then indorsed on the permit the following certificate : " CusTOM-HousB, Collectok's Office, "New Orleans, La., November 16, 1864. " I certify that J. S. Clark and E. Fulton have delivered to me a bond, duly executed, with proper and sufficient snreties, in the sum of $250,000, as required by the foregoing authority from the Secretary of the Treasury. [seal.] " Geo.' S. Denison, "Sp. AgH of Trea. BepH and Act. Col. of Customs.'''' Robinson then took the permit back to Hurlburt, who placed on it the following indorsement: "Headq'rs Dep't Gulf, Bee. 23, 1864. "The above executive order will bg obeyed and respected by all military officers within this department. " S. A. Hurlburt, M. Ge." That da}-, or the next, the claimants handed Robinson, at his dwelling, $5,000, and subsequently, on the same day, he 342 Clabk v. The United States. [Oct. Term, statement of the case. handed that money back to tliem, stating to them that it did not suit him to receive it in that manner. They asked him how he 'would receive it. Pie told them he would receive it through Denison, the collector of the port. The next morn- ing Denison handed him an envelope with $5,000 in it, out of which Robinson took $2,000 or $3,000 and gave it to Gen- eral Hurlbnrt, and laid away the balance in the provost-mar- shal-general's office. After that money was given to Robinson, the claimant Clark saw him again, and said to him : " Now I have the per- mit indorsed, see if you can get my cotton released; see if General Hurlburt will give an order releasing or justifying the release of my cotton." Robinson then saw Hurlburt and stated the facts to him, and Hurlburt then wrote the following paper : , " Headquarters Department of the Gtjle, "New Orleans, December 24, 1864. "Pursuance to executive order of his Exc'y the President of the United States, J. S. Clark and E. Fulton are permitted to bring the number of bales of cotton in said order mentioned from RatclifF's Landing, on the Miss. River, 25 miles above Bayou Sara, on the steamer Sciola, provided the same is re- ceived under protection of a gunboat. The taking of any passengers or* freight to be landed at any point, or the pay- ment of anything but United States Treasury notes, will, work forfeiture of steamer and cargo. The cotton returning on the boat will be reported and identiiied by Mr. 0. N. Cutler and the provost-marshal-general. "S. A. Hurlburt, M. G. C." The claimants then paid Robinson another $5,000, which was disposed of in the same manner as the first. Afterward, and prior to the 13th day of February, 1865, they paid Robinson the further sum of $3,000, of which he gave $1,000 to General Hurlburt, and the rest was disposed of by Robinson in the provost-marshal-general's office. Besides the moneys so received by Robinson from the claim- 1880.] Clakk v. The United States. 343 Statement of tlie case. ants, other moneys were paid him by C. A. Weed & Co., the amount of which does not appear, and also the snm of |1,000 was paid him by one Courtney. Of the whole amount paid him by all those parties, $8,000 went into the hands of General Hurlburt, who returned the same amount tp Eobinson on or about the 4th of April, 1865. "With the remainder of said whole amount, or a part of it, Kobinson purchased gold coin, which he deposited in the First National Bank of New Orleans, taking therefor certificates of deposit in favor of different officers of the bank, which they indorsed over to him, to the amount of $7,602.25. In January, 1865, a special commission in New Orleans was appointed by the Secretary of War, with the sanction of the President, and was in session there until May 5 following. On theil3th of February, 1865, that commission placed the said liobinson in solitary continoment, and the same day stopped the payment of said certificates of deposit; and the amount of them, in gold coin, was afterwards turned over by the commission to the Secretary of War, by whom the same was put as a special deposit in the Treasury Department until the 16th of June, 1869, when, at the request of the Secretary of War, the same was covered into the Treasury. That commission also took $8,000 from said Robinson, which was likewise turned over to the Secretary of War, by whom it was, with the addition of $40 interest, accrued on compounds interest notes, paid into the Treasury on the 10th of June, 1869. The money paid as aforesaid by the claimants to the said Robinson, was paid by them with the corrupt motive and pur- pose on their part of procuring official action whereby their cotton should be released. It does not appear that there weve any interviews between the claimants and the said Robinson upon any subject, nor any offer of the payment of any sum or sums of money by them to the said Robinson, for any purpose, until after the seizure, by the United States military police, of the claimant's. 844 Claek I'. The United States. [Oct. Terni, Opinion of the court. steamer Sciota and the cargo of cotton thereon, which had been shipped from Baj'ou Sura, La., under the pass and super- vision of lieut.-Com. John J. Cornwell, of the United States steamship Choctaw, on the 13th day of December, 1864. John J. Weed, for appellants. S. F. Phillips, Solicitor- General, for the United States. Waite, C. J. — Upon the facts found the court below was right in treating this as a case of briber^M'ather than extortion. The claimants undoubtedly held an executive license to trans- port by way of New Orleans, notwithstanding the act of July, 1864, (13 Stat., 377, sec. 9,) any cotton they had bought in the parishes of East and West Feliciana, under the authority of the special agent of the treasury at New Orleans, if they gave the required bond and presented to the acting collector of cus- toms at that port the original authorities or permits under which they acted, or copies thereof certitied by the officer with whom they were filed, with proof to the satisfaction of the acting collector that the cotton was actually purchased in good faith under and by virtue of such authorities. By the express terms of this license any cotton transported, or attempted to be trans- ported, under it, without the original permits or authorities, or ■certitied copies and proof required, was subject to seizure and -condemnation. It is not pretended that when the seizure was made the claimants had in their possession any evidence of their right, under this authorization, to transport the cotton ^'hich was seized. While it has been found that the bond was -executed and delivered to the acting collector on the- 16th of November, 1864, the findings are entirely silent as to the pres- entation of the original permits or the required proof before the transportation was entered upon. Neither did the execu- tive license have upon it the prescribed certificate that the bond had been executed and delivered. Under such circumstances the seizure could not have been wrongful in the first instance. It was the duty of the military authorities at that point to see 1880.] Clark v. The United States. 345 Opinion of tlie court. that nothing passed out from the enemy's country under this authority until the requisite evidence was furnished. New Ork-ans was a military post, and Congress had seen lit to re- strict materially the power of the President to permit com- mercial intercourse with the inhabitants of the insurgent terri- tory. The executive license, when construed in connection ■with this new congressional action, was evidently intended only to protect such rights as had become vested under previous authorities or permits rightfully issued. Therefore nothing could pass except what the collector had been satisfied by proof was "actually purchased in good faith under and by virtue of said authorities." The claimants, when the seizure was made, did not attempt to secure a release by producing the necessary evidence of their rights, but by tempting a subordinate officer in the military service by a liberal ofier of money. He made no demands, but accepted what they voluntarily gave him. In this way the executive order was evaded and a pass through the lines secured by corrupting an officer. Clearly this was bribery, and placed the claimants and the man they corrupted in pari delicto. They could not recover back from him the money they paid ; neither can they from the United States, after it has been taken from him as a punishment for his faithlessness to his trust. It is insisted, however, that when the claimants presented to the military authorities the executive license, with the certifi- cate of the acting collector indorsed to the effect that the requi- site bond had been delivered to him, they had done all that was required to get their property back and proceed with the transportation. They evidently did not so understand the effect of what they had done, for they voluntarily oftered and paid more money to secure what they wanted; and that they inter- preted the instrument correctly, is, to our minds, clear. The execution of the bond is one thing, and the production of the oi'iginal permits and proofs another. It is true that, in the license, the provision as to the bond follows that as to the per- mits and proof; but the delivery and acceptance of the bond 346 Kaiser v. Stickney. [Oct. Term, Statement of the case. wore no more evidence of the presentation of the permits than the presentation of the permits would have been of the de- livery of the bond. The certificate of the bond on the license was evidence of the performance of that condition, but nothing more. The execution of the bond was not at all dependent on the presentation of the permits and proof The penaitj'jof the bond was fixed in Washington and specified in the license itself, and it was entirely immaterial, so far as the requirements of the license were concerned, whether the bond was delivered before or after anything else was done. Before, therefore, the. commanding general could be required to release the seizure, it must have been shown to him that the acting collector waS satisfied the original permits had been given, and that the pur- chases had been in good faith made, as alleged by the claimants. Instead of attempting to make such a showing, briber}' was resorted to, and in that way the necessary order obtained. Beyond all doubt the judgment below was right, and it is consequently aifirmed. Affirmed. Henry Kaiser and wife, Caroline Kaiser, v. Georqe W- Stickney, surviving trustee, and John A. J. Creswell, Robert Purvis, and Egbert H. T. Leipold, commissioners OF THE FrEEDMAN's BaVINGS AND TrUST COMPANY. 1. Where a hiisbaiid and wife, in tlie District of Coluiribia, liad nnifed in a trnst deed on oei'tain real estate previonsly conve3'ed to tlie wife by t.lio liiLsband withont any expre.os wovds creating it liei- separate estate, tlie conrt affirmed certain questions of fact decided by the lower court. 2. A mere alternative averment in a bill, not sustained by the proof, is not a fatal variance. Appeal from the Supreme Court of the District of Columbia. The original bill in this cause was filed August 6, 1875, in 1880.] Eaiser v. Sticknbt. 347 Statement of the case. the Supreme Court of the District of Columbia, bj' Henry Kiiiser and Caroline, his wife, for the purpose of preventing a threatened sale of property under the powers contained in a deed of trust. On the 17th day of April, 1871, Henry Kaiser and Caroline Kaiser, being indebted to the Freedman's Savings and Trust Company in the sum of $12,000 for money borrowed from the trust company^ made their promissorj' note for that sum, payable one year after date, with interest at the rate of ten per centum per annum. To secure the payment of this note they executed, acknowledged, and delivered to the defendants' Eaton and Stickney an ordinary trust deed, bj' which they conveyed to them the property involved in the suit, with power to sell the same at public auction on default in payment of the note. This note and the deed of trust were executed by both of the complainants. The money borrowed on this security was paid out by the proper officer of the trust company, as previously agreed, to remove various liens upon the property conveyed bj' the trust deed, and to pay for the ereetion of a building thereon. This disposition of the fund was made in pursuance of a written contract. Afterwards another loan was negotiated by the complainants from the trust company. On the 25th day of October, 1871, the complainants borrowed the additional sum of $4,000, and signed a promissory note for that amount, payable one year after date, with interest at ten per centum per annum, and to secure its paj^ment thej' executed and acknowledged a second deed of trust, by which they conveyed the same property to the same trustees. This deed also contains the usual powers of sale in case of default. The original bill was exhibited, signed, and sworn to by Henry Kaiser and his wife. The grievance complained of was, that the first deed of trust was not the result of the joint act of husband and wife; that Henry Kaiser signed the deed by request as a witness, and that he was not in any manner con- sulted about it ; and the bill avers that, as the husband of Caro- 348 Kaiser v. Stickney. [Oct. Term, Opinion of the court. line, Henry was lier legal agent, and entitled to the manage- ment of her sole and separate estate, and to the rents and profits thereof. The bill begins with the averment that Caro- line was seizfed and possessed in her own right of the property in question, and it avers that the rents and proiits thereof have been diverted to pay the interest on this |12,000 loan. The bill also avers that Caroline Kaiser has not been recognized by the public or the court as a free trader, and that the com- plainant, Henry Kaiser, has not been adjudged a lunatic or non compos mentis, and further avers that Caroline, the wife, had no' legal power to make the contracts held by the trust company. The trust deed is appended to and made a part of the bill, and it shows on its face that it was signed and ac- knowledged by both Henry Kaiser and his wife, Caroline. The second deed was also signed and acknowledged by both of them, and each of the promissory notes was signed by both husband and wife. The answer of the wife to the cross-bill admits that the money was received by her and that the loans were made as alleged in the cross-bill. Simultaneously with the filing of the answer of the com- missioners of the trust companj', they filed their cross-bill asking that the property might be sold by a trustee appointed by the court, because of the harshness of the terms of sale pre- scribed in the trust deed. They also brought into the cause by this cross-bill the matter of the second trust deed made to secure the loan of $4,000. To this cross-bill Caroline, the wife, interposes an answer, in which she alleges that her hus- band is non compos mentis. Mike L. Woods, for appellants. Enoch Toiten, for appellees. Waitb, C. J. — It is very clear that the property in question was not, under the provisions of section 727 of Kevised Stat- utes of the District of Columbia, the sole and separate property 1880.] Kaiser v. Stickney. 349 Opinion of the court. of Mrs. Kaiser. She could not, therefore, convey it, or con- tract with reference to it, "in the same manner and with the same etfect as if she were unmarried," (sees. 728 and 729,) but it was her general property, which she could convey by uniting with her husband in a deed executed in the form required by sections 450, 451, and 452 of the same statutes. In this way she conld charge her property with the payment of a debt, although she might not be able to bind herself individually. Her husband did unite with her in the execution of the deed under which the appellees claim, and the requirements of the law as to the form of execution were in all respects complied with. The note secured was valid as the note of the liusband, and the deed was, therefore, binding. We have not overlooked the fact that Mrs. Kaiser, both in her original bill and in her answer to the cross-bill, has averred that her husband signed the deed only as a witness to her signature; but the fact was clearly otherwise. His signature is affixed both to the note and deed as maker, and his due execution of the deed was properly acknowledged before a competent officer. An at- tempt was made to. prove that he was mentally incapable of entering into a contract, but the evidence falls short of estab- lishing this fact, notwithstanding the wife, in her testimony, said he only did what she told him to do. We have no hesi- tation in deciding that the deed was well executed and that it binds the propertj' for the payment of the debt it was intended to secure. It is not claimed, either in the original bill or in the answer to the cross-bill, that the trust company did not in fact loan on the faith of the security all the money the note calls for. Consequently, upon the case as made, the decree was properly rendered for the full amount of the note and interest, deducting only what was shown to have been paid. It is insisted, however, that there is a variance between the proof and the allegations in the cross-bill, and that on that ac- count there can be no recovery by the trust company in this suit. The objection is that in the cross-bill the property is pro- ceeded against as the separate property of the wife, whereas 350 McLatjgi-ilin v. Fowlek. [Oct. Term, Statement of the case. the pi'oof shows it to have been her general propertj-. We do not so understand the efltect of the pleadings. In the original bill the appellants sought to set aside the trust deed because it was executed by the wife alone for the conveyance of her gen- eral property, and therefore not binding. The appellees, on the contrary', in their cross-bill sought to enforce the deed be- cause it was executed by both the husband and wife. The single point put in issue is the validity of the deed as a con- veyance in trust of the property owned by the wil'e to secure the debt which was described, and inasmuch as the wife insists that the property was her general property, the cross-bill ought not to be dismissed bedause of a single alternative averment that it was her separate property. The decree is affirmed. Affirmed. Charles McLaughlin v. J. M. Fowler, and Charles Mc-- Laughlin v. Edward Thorpe. Newliall V. Siiiiger, 92 U. S., 761, iipproved and followed. Error to the Supreme Court of the State of California. These were suits brought by the plaintiff in error to recover of the defendants in error the deferred payments for certain lands agreed to be purchased of the plaintift' by the defend- ants, the plaintiff claiming title by patent from the United States. The defense was, that the land in question had not been patented to the plaintiff, but had been expressly reserved as part of the Los Moquelomnes tract; that the defendants had been in prior possession, and were misled by the repre- sentations of the plaintiff, that he had title, into making a con- tract to purchase from him and paying the first' installment of the purchase-money. 1880.] Dennison ?;. Alexandbr. 351 Statement of tlie case. Henry Wise Gamett, for plaintiff in error. No brief filed for defendants in error. "Waite, C. J. — '^I'he only Federal question in these cases is whether the patents to the Western Railroad Company for lands within the limits of the Moquelomnes grant are valid. If that question was not decided by the court below, we have no jurisdiction; if it was, the judgment was right, because in ac- cordance with Newhall v. Sanger, 92 U. S., 761, brought here in 1875 for the determination of the same identical question. Such being the case the judgment must be affirmed. We can only look beyond the Federal question when that has been decided erroneously, and then only to see whether there are any other matters or issues adjudged by the State court suffi- ciently broad to maintain the judgment, notwithstanding the error in the decision of the Federal question. (Murdock v. Memphis, 20 Wall., 591.) The judgment in each of these cases is affirmed on the au- thority of Newhall v. Sanger. Affirmed. William Dennison et al., CoMMissioisrERS of the District OF Columbia, and the First National Bank of the City OF New York v. Columbus Alexander. Since tin; act of February 2-5, 1879, (20 Stnts., 321,) tlie viiliie of tlie mat- ter in dispiitf, as well in cafes peiuliiig as in cases siibscqueiifly aris- iiiji', iinist exceed $2,500 In order lo give tliis court iiii-isdiciion to review iudgraents or decrees of the Snpieme Court of the District of Columbia. Appeal from the Supreme Court of the District of Colum- bia. Motion to dismiss. 352 Dennison v. Alexander. [Oct. Term, Opinion of the court. No briefs filed on motion to dismiss. Waitb, C. J. — We think this case is governed hj Raih'oad Company v'. Grant, 98 U. S., 398. In that case we held that the act of February 25, 1879, (20 Stats., 821, ch.' 99, sees. 4, 5,) took away our right to hear and determine cases from the Supreme Court of the District of Columbia where the mat- ter in dispute did not exceed |2,500, and that it operated on pending cases which had been brought here under the provis- ions of section 847 of the Revised Statutes of the District. This case came here under section 848, which provided for the allowance of appeals and writs of error by the justices of this court under certain circumstances, when the matter in dispute was less than $1,000, the then general jurisdictional amount, but exceeded $100. There is no reservation in the repealing act as to this class of pending cases any more than the other. Both sections have reference to the same general subject-mat- ter ; that is to say, our review of the judgments and decrees of the Supreme Court of the District in cases where jurisdic- tion has been made to depend on the value of the matter in dispute. Under the act of 1879 we can no longer hear any of that class of cases, unless the amount exceeds $2,500. .The appeal is dismissed, each party to pay their own costs. Dismissed. 1880.] City op Memphis v. Garrett. 353 Syllabus. Minor Meriwether, receiver, &c., of the City oe, Memphis, ET AL., V. KOBERT GaRRETT & SONS ET AL. 1. Property held for public uses — such iis public buildings, streets, squares, parks, promenades, wharves, landinp; places, firc-engine.=, hose and hose carriages, engine-houses, engineering instruments, and generally everything licld for goverinnental purposes — cannot bo snbjeotod to tlie payment of tlio debts of the city. Its pnblio character forbids sucli an appropriation. Upon the repeal of the charter of the city, such property passed under the immediate control of Ihe State, the power once delegated to the city in tliat behalf h.iving been with- drawn. 2. The private property of individuals within the limits of the territory of the city cannot be subjected to the payment of the debts of the city, except tlirongli taxation. The doctrine of some of tlie States, that such property can be reached directly on execution against the mu- nicipality, has not been generally accepted. 3. The power of taxation is legislative, and cannot be exercised otherwise than under the autliority of the Legislature. 4. Taxes levied according to law before the repeal "of the cliarter, othei' than such as were levied in obedience to tlie special requirement of contracts entered into under tlie authority of law, and such as were levied under judicial direction for the payment of judgments recover- ed against the city, cannot be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can onlj- be collected under authority from the Legislature. If no such authority exists, the remedy is by appeal to the Legislatm-e, whicli alone can grant relief. Whether taxes levied in obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed by- a court of chancery, if there be no public officer charged witli autliority from tlie Legislature to perform that duty, is not decided, as the case does not require it. 5. Tlie receiver and back-tax collector appointed under the authority of the act of March 13, 1879, is Ji public officer, clothed with authority from the Legislature for the collection of the taxes levied before the repeal of the charter. The funds collected by him from taxes levied under judicial direction cannot be appropriated to any other uses than those for which they were raised. He, as well as any other agent of the State charged with the duty of their collection, can be compelled by appropriate judicial orders to proceed with the collection of such taxes by sale of propertj' or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgments. ' 23 " 354 City of Memphis v. Gaerett. [Oct. Term, Opinion of the court. 6. The bills in this capo cannot bo .amcnclpd so as to obtain relief against tlic receiver and bacVtax coliector, witbont making an entirelj' ne^v snit. 'J'hey wei'e not franed with a view to any sncb pnrpose. Appeal from the Circuit Court of the United States for the Western District of Tennessee. Minor Mcruvetker, C. F. Vance, Gant ^ Patterson, and /. B. Heiskell, for appellants. W. M. Randolph, J. A. Taylor, and Mijers §• Sneed, for appel- lees. Mr. Chief Justice Waite announced the foregoing as the conclusions reached by the court in this case, and added: "The decree of the court below is reversed. "The cause is remanded with instructions to dismiss the hills without prejudice. If, on the settlement of the accounts of the receiver herein, it shall be found he has any money in his hands collected on taxes levied under judicial direction to pay judgments in favor of any persons who have become par- ties to this suit, an order may be made directing its appropria- tion to the payment of such judgment. "Upon, the first, secoud, third, and fifth of these propositions the judgment of the court is unanimous. Upon the fourth, sixth, seventh, and eighth, it is by a majority only." The facts of the case are to be found in the opinion of Mr. Justice Field. Field, J. — Mr. Justice Miller, Mr. Justice Bradley,, and myself concur in the judgment rendered, but as the judgment is not accompanied by a statement of the reasons on which it is founded, I proceed to state those which have controlled us. In January, 1879, the city of Memphis, in the State of Ten- nessee, was financially in a bad condition. She had been for many years ji municipal corporation, and was invested with the ordinary powers of such bodies to make contracts and in- 1880.] City of Memphis v. Gaerett. 355 Opinion of the court. cur obligations for municipal purposes, and to levy and collect taxes to meet her expenditures. Her authorities were also at different times specially empowered by the Legislature of the State to subscribe for stock in railroad corporations, to aid in the construction of lines of railway leading to and from the city, and to issue interest-bearing bonds for the amount sub- scribed; also to issue bonds of like character to raise the means to erect water-works, construct pavements, and make "any public improvements" that might be necessary, and to acquire property for the public use of the city. Indeed, the powers conferred at various times upon the authorities to un- • dertake public works and engage in enterprises for the benefit of the city, were as large as the supposed necessities of a munici- pality with great expectations of i'uture growth could suggest; and these powers appear to have been exercised with a liber- ality proportionate to the expectations. Taxes were levied to meet the consequent expenditures of the city and the interest on her bonds, but these were not always enforced with the readiness with which the obligations were incurred. The record shows that for several years preceding 1879 not more than three-fifths of the annual taxes were collected. Whether this arose from the viciousness of the system of taxa- tion adopted, or the inefiiciency of the officers of collection, is immatci-ial. Probably it arose partly from both causes. The natural result followed : the revenues received became insuffi- cient to meet the just claims of creditors ; obhgations were not paid as they matured; coupons for interest on bonds were not provided for; the city was in default for much of the principal and all of the interest of her indebtedness; she was insolvent. Suits were soon commenced against her by creditors — some in the Federal courts, some in the State courts; and from the Federal courts in several cases a mandamus was issued to the authorities of the city to levy a special tax for the payment of judgments recovered. "With taxes uncollected, debts maturing, and both principal and interest unprovided for; with numer- ous suits commenced and more threatened; with credit gone 356 City of Memphis v. Garrett. [Oct. Term, Opiuion of the court. and the propert}- of her citizens ah-eady subjected to burdens difficult to be borne, the city was in a condition out of which she was almost helpless to extricate herself While the city was thus burdened with debts and pursued by creditors, the State interfered ; and on the 29th of January, 1879, repealed the charter of the city, took the immediate con- trol and custody other public property, and afterwards assumed the collection of the taxes levied and their application to the payment of her indebtedness. The repealing act was in terms general, and applied to all municipal corporations in the State having thirty-iivo thousand inhabitants at the date of its passage, to be ascertained by the Governor and declared by his proclamation. The city of Memphis had that number of inhabitants, and it was so pro- claimed by the Governor. The act not only repealed the charters of all such corporations, with their amendments, but declared that all municipal offices held under them were abol- ished; that the population within their territorial limits were resolved back into the body of the State; that all power of taxation in any form, previously invested in their authorities, was withdrawn and reserved to the Legislature; and that the public buildings, squares, promenades, wharves, streets, alleys, parks, fire-engines, hose and carriages, engine-houses, engineer instruments, and all other property, real and 'personal, pre- viously used for municipal purposes, were transferred to the custody and control of the State, to remain public property as previously it always had been. On the same day with the passage of the repealing act, the Legislatui'e passed another act to establish taxing districts in the State, and to provide the means for their local government. It declared that the several communities embraced in the ter- ritorial limits of the repealed corporations, and of such other corporations as might surrender their charters under the act, were created taxing districts, in order to provide the means of local government for their peace, safety, and general welfare; that the necessary taxes for the support of the governments 1880.] City of Memphis v. Garrett. S57 Opinion of the court. thus established should be imposed directly by the General As- sembly, and not otherwise; that in administering the affairs and providing the means of local government the following agencies and instrumentalities were established, namely: A board of fire and police commissioners; a committee on ordi- nances or local laws, to be known as the legislative council of the taxing district; a board of health and a board of public works; and it prescribed in detail the duties and powers of these local agencies. The act prohibited the commissioners from issuing any bonds, notes, scrip, or other evidences of in- debtedness, or from contracting for work, material, or ser\ice3 in excess of the amount levied for them for that j'oar; and de- clared that no property, real or personal, held by them for public use should ever he subject to execution, attachment, or seizure under any legal process for any debt created by them ; that all taxes due, or moTieys in the hands of the county trustee, or on deposit, should be exempt from seizure under attach- ment, execution, garnishment, or other legal process. It also declared that no writ of mandamus or other process should lie to compel them or other governing agencies to levy any taxes, and that neither the commissioners, nor ti'usteo, nor the local government should be held to pay or be liable for any debt created by the extinct corporations, and that none of the taxes collected under the act should ever be used for the payment of any of said debts. The act also declared that all the property previously used by the corporations for purposes of govern- ment was transferred to the custody and control of the board of commissioners of the taxing districts, to remain public prop- erty for the uses to which it had previously been applied, and that all mdebtedness lor taxes, or otherwise, whether in litiga- tion or not, due to the extinct municipalities, should vest in and become the property of the State, to be disposed of for the settlement of their debts as should thereafter be provided by law. On the 13th of March following such provision was made. By an act passed by the Legislature ou that day, the Governor 358 City of Memphis v. Garrett. [Oct. Term, Opinion of the court. was directed to appoint an officer for municipal corporations whose charters ha,d been repealed under the first act mentioned, or might be subsequently surrendered, to be known as a re- ceiver and back-tax collector. It required him to take pos- session of all books, papers, and documents pertaining to the assessment and collection of taxes which had been levied at the time of the repeal of the charters. It ordered him to file a bill in the Chancery Court of the county in which the corpo- ration was situated, in the name of the State, in behalf of all creditors against all its delinquent tax-payers, and provided that taxes assessed prior to 1875 might be settled in the valid in- debtedness of the extinct municipality, whether due or not, and that the receiver should receive evidences of such indebt- edness at certain designated rates,. It also prohibited him from coercing payment of a greater sum than one-fifth of the taxes in arrears annually, so as to distribute the whole through five equal annual installments, commencing from his appointment and qualification. It authorized the Chancery Court to enforce all liens upon property for the payment of taxes, and to order all sales necessary for their collection ; and to settle and adjust all equities, priorities, and liens; and to give to the defendants and creditors all the relief which might be given if there were as many separate suits as there were creditors and delinquent tax-payers. It provided that the taxes as collected should be paid into the State treasury, and be paid out to parties entitled to receive them as adjudged by the Chancery Court, upon the warrant of the receiver, countersigned by the chancellor. It required the receiver, in paying the money collected into the treasury, to distinguish the sources whence it was derived, showing the amount from each special and general tax, so that they might be kept separate and be paid out to creditors accord- ing to the priority, lien, or equity determined. The act was accompanied with a proviso that it should not interfere with any vested rights entitling parties to a speedy collection. On the passage of the repealing act there was a large amount of uncollected taxes which had been levied upon property in the 1880.] City of Memphis v. Garrett. 359 Opinion of the court. city of Memphis ; such as taxes to pay certain specified creditors under writs of raandamns, a special tax to pay interest upon bonds, a special sinking-fund'tax, a school tax, a wharfage tax, a tax upon merchants to pay police and firemen, a tax to pa}' interest upon bonds issued to certain railroads, and a tax for general purposes of government. Under the provisions of Iho act of March 13, the defendant. Minor Meriwether, was appointed by the Governor receiver and back-tax collector of that city. He ac(;epted the appointment and proceeded at once to the performance of his duties. The day previous to the passage of the act repealing the charter of Memphis, and probably in anticipation of the con- templated legislation of the State, E,obcrt Garrett and others, creditors of the corporation, filed a bill against the cit}', alleg- ing, in substance, that the city owed them over |100,000, upon much of which they had recovered judgments and obtained writs of mandamus to compel the levy of taxes for their pay- ment; that various writs of mandamus liad been issued against the city for over ^850, 000 ; that through the malfeasance and incompetency of its oiScials only about three-fifths of the taxes imposed had been collected, and that this practice had run through a series of years, resulting in delinquent taxes of about 12,500,000 ; that the taxes levied pursuant to the writs of man- damus issued constituted a trust fund which could only be used for the payment of the judgments; that the city was a trustee for the same, and been requested to press the collection, but had neglected to do so, and that this neglect was a fraud on the complainants relievabic in a court of equity. It also set up that the Legislature, by an act of the 10th of March, 1877, had authorized the Chancery Court of the State to appoint a receiver to take charge of the affairs of the city, upon application of creditors owning demands against her ex- ceeding $100,000, when it was made to appear that writs of mandamus had been issued against her to enforce debts against the city amounting to over $850,000 ; and, averring that the court had jurisdiction, both upon general principles of juris- 360 City of Memphis v. Garrett. [Oct. Term, Opinion of the court. prudence and by authority of that act, the bill prayed the ap- pointment of a receiver to take charge of the assets of the city, including its tax books and bills for unpaid taxes, and to collect the taxes levied for the purpose of paying the judgments. After the repealing act was passed the complainants tiled a supplementary bill setting up the passage of the act, alleging its validity, and repeating its prayer for the appointment of a receiver. Subsequently several other parties instituted like suits against the city. All the suits were, in February, 1879, consolidated into one without objection, and by amendment to it, in April following, Meriwether, the receiver appointed hy the Governor, was made a defendant, as also sundry parties upon whoso prop- ertj- taxes had been levied. "With the consolidation a receiver of the assets and property of the city was appointed to hold and dispose of the same under the direction of the court; and he immediately qualiiied, and proceeded to take possession, so far as practicable, of the property and assets, and to exercise the powers with which he was invested. To the bill as consolidated and amended, a demurrer was interposed by the defendants, upon which several questions arose, on which the judges of the Circuit Court were divided in opinion. The prevailing opinion of the presiding judge being against the demurrer, it was overruled, and the defend- ants electing to stand upon it, judgment final was rendered in favor of the complainants, from which the defendants have appealed to this court. The receiver appointed by the court was invested with larger powers than probably any officer of a court was ever before intrusted with. lie was required to demand, receive, and take possession of all the assets and property of the city of Memphis, including real and personal property, and debts due to it and taxes which had been previously levied, except the taxes ap- pearing on the tax books for the year 1878, for which special provision was made, and except also the public highways of the city, the public squares, the public landings and wharves, 1880.] City of Memphis v. Garrett. 361 Opinion of the court. the hospital and certain property used in connection with it, and property of the fire, engineer, and police departments, and the taxes levied for the support of the public schools, which excepted ai-ticles .he was not to take possession of or interfere with until the further order of the court. It does not appear that the court entertained any doubt that it could at some future time place all this public property in the hands of its receiver, as its subsequent decree shows. The receiver was also required to take possession of all the tax books of the city on which unpaid taxes were charged, except the tax books for the year 1878 ; and also all the safes, books, papers, desks, office furniture, and other property belonging to the offices of mayor, controller, register, treasurer, tax collector, inspector, and city attorney, necessary to the discharge of his duties as receiver, and of the buildings in which the general council of the city had previously assembled, and the property in and belonging to such' buildings not previously excepted, and keep them subject to the order of the court; and parties having possession or control of such property, or any part of it, were required to surrender the same to him on demand. By the order appointing the receiver, the trustee of Shelby county, within which the city of Memphis is situated, was required to pay over to him all the moneys he had on hand collected for taxes levied by the city for the year 1878, except such as were levied for the support of public schools. The former treasurer of the city was also required, with the like exception, to turn over to the receiver, on demand, all the money in his hands or on deposit in the German National Bank, received for the city. The mayor of the city, was also to pay over to him any money and deliver to him any prop- erty belonging to the city, and the papers and vouchers nec- essary for the discharge of the receiver's duties; and the clerk of the county of Shelby was also to pay over any moneys received by him on account of the redemption of property sold for taxes duo the city. The receiver was also required to lease the property of which he might have possession from 362 CiTT 0¥ Memphis v: Gaerbtt. [Oct. Term, Opinion of the court. month to month, and to collect the rents and hold the same subject to the order of the court; and, if he found it necessary, he was authorized to bring actions at law or suits in equity against parties indebted to the city, -or for any tax or taxes appearing on the tax books, and to enforce any specific liens on the property-, real or personal, for the payment of such taxes; and to employ as ^m any clerks and assistants as he might deem necessary; to make use of the buildings and offices in the city hall, and of such safes, desks, tables, chaii's, and other furniture and property of the city he might need; to buy and pay for necessary books, stationery, fuel, and lights, and whatever else might be necessary to fit his office or offices for use to enable him to discharge his duties ; to insure any property, real or personal, which might come into his hands, when he thought it prudent to do, so; to employ one or more attorneys, if necessary, to conduct the prosecution or defense of suits that he might find necessary to bring or defend under the authority conferred by him. Other powers were also vested in the receiver, but what has already been said is enough to show the extraordinary character of those conferred and of the duties imposed upon him. He was, in fact, invested with the administration of the financial atlViirs of the city, so far as might be necessary for the collection of taxes and debts and disposing of .the property of the city to pay the claims of creditors. Executive and administrative functions were invested in him which, it has not been sup- posed, could adequately be performed by the same person in any government of a city properly conducted. The decree adjudged that the complainants in the several suits, and other creditors who had made themselves parties by leave of the court, or who might thereafter make themselves parties, should recover from the city the several debts due them respectively, the amounts to be thereafter fixed by the court, and that all the assets and property of the city, "of every description," or so much thereof as might be necessary for that purpose, including taxes previously assessed and re- 1880.] City of Memphis v. Gaerett. 363 Opinion of the court. maining unpaid and due the city, should be applied to the payment of their debts. The decree also adjudged that the receiver should retain possession of all the assets and property, books, papers, and writings previously placed in his hands to be disposed of as the court might order in the progress of the suit, and that he proceed to collect the assets and property in the mannerdirected by previous orders for the payment of the debts. It also enjoined the defendant, Minor Meriwether, the receiver and back-tax collector appointed by the Governor of the State, from taking possession of, collecting, or attempting to collect, suing for, or in any way interfering with the assets and property, books, papers, and writings in the possession of the receiver of the court. And the decree further adjudged that all the property within. the limits of the territorj' of the city of MemphiH was liable and might be subjected to the pay- ment of all the debts of the city, and that such liability would be enforced thereafter, from time to time, in such manner as the court might direct. This decree iei manifestly erroneous in its main provisions. It proceeds upon the theory that the property of every descrip- tion held by the municipality at the time of its extinction, whether held in its own right or for public uses, including' also in that designation its uncollected taxes, were chargeable with the payment of its debts, and constituted a trust fund, of which the Circuit Court would take possession and enforce the trust; aud upon the further theory that the private property of the inhabitants of the city was also liable, and could bo subjected by the Circuit Court to the payment of its debts. In both particulars the theory is radically wrong. The right of the State to I'epeal the charter of Memphis cannot be questioned. Municipal corporations are mere in- strumentalities of the State for the more convenient adnunis- tration of local government. Their powers are such as the Legislature may confer, and these may be enlarged, abridged, or entirely withdrawn at its pleasure. This is common learn- ing, found in all adjudications on the subject of municipal 364 City of Memphis v. Garrett. [Oct. Term, Opinion of the court. bodies and repeated b}' text-writers. Tbere is no contract be- tween the State and the public that the charter of a cit^- shall not be at all times subject to legislative control. All. persons who deal with such bodies arc conclusively presumed to act upon knowledge of the power of the Legislature. There is no such thing as a vested right held by any individual in the grant of legislative power to them. (United States v. Rail- road Co., 17 Wall., 329; Commissioners v. Lucas, Treasurer, 93 U. S., 114; People v. Morris, 13 Wend., 337; Philadelphia V. Fox, 64 Penn. St., 169 ; Montpelier v. East Montpclier, 29 Vt., 12; Angell k Ames on Corp., 10th cd., sec. 31; Dillon on Municipal Corp., sec. 30 ; Cooley on Const. Limitations, 192, 193.) By the repeal the legislative powers previously pos- sessed by the corporation of Memphis reverted to the State. A portion of them the State immediately vested in the new government of the taxing district, with many restrictions on the creation of indebtedness. A portion of them the State retained. It reserved to the Legislature all power of taxation. It thus provided against future claims from the improvidence or recklessness of the new government. The power of the State to make this change of local government is incontro- vertible. Its subsequent provision for the collection of the taxes of the corporation levied before the repeal of its charter, and the appropriation of the proceeds to the payment of its debts, remove from the measure any imputation that it was designed to enable the city to escape from its just liabilities. But while the charter of a municipal corporation may he repealed at the pleasure of the Legislature, where there is no inhibition to its action in the Constitution of the State, the lawful contracts of the corporation, made whilst it was in ex- istence, may be subsequently enforced against property held by it, in its own right, as hereafter described, at the time of the repeal. In this respect its position is not materially ditfer- ent from that of a private individual, whose property must, upon his decease, go to the satisfaction of his debts before those who succeed to his risrhts can share in its distribution. 1880.] City of Memphis v. Gaurett. 365 Opinion' of the court;. The language used by us in the case of Broughton v. Pensacola on this subject is quoted by counsel, under the impression that it tends to sustain the position of the complainants. We there said : " The ancient doctrine that, upon the repeal of a private corporation, its debts were extinguished, and its real property reverted to. its grantors, and its personal property vested in the State, has been so far modiiied by modern adjudications that a court of equity will ucav lay hold of the property of a dis- solved corporation and administer it for the benefit of its creditors and stockholders. The obligation of contracts made whilst the corporation was in existence survives its dissolu- tion, and the contracts may bo enforced by a court of equity, so far as to subject, for their satisfaction, any property pos- sessed by the corporation at the time. In the view of equity its property constitutes a trust fund, pledged to the payment of the debts of creditors and stockholders; and if a municipal corporation, upon the surrender or extinction in other ways of its charter, is possessed of any property, a court of equity will equally take possession of it for the benefit of the creditors of the corporation." (93 U. S., 268.) We approve of the doctrine stated in this citation. It ex- presses what we believe to be sound law. It means that what- ever property a municipal corporation holds subject to the pay- ment of its debts, will, after its dissolution, be so administered and applied by a court of equity. It does not undertake to determine what is to be deemed the propert}' of a municipal corporation which, after the extinction of its charter, is thus applicable. In the case from which it is taken the bill alleged that the city of Pensacola, upon the sm'render of its charter, did not possess any property, and, of course, the question hero raised could not have been before the court. The question there was as to the continuation of the city's liabihty under a new organization. What, then, is the property of a municipal corporation which, upon its dissolution, a court of equity will lay hold of and apply to the payment of its debts? We answer, first, 366 City of Memphis v. Gaerett. . [Oct. Term, Opinion of the cotirt. that it is not property held by the corporation in trust for a private charity, for in such property the corporation possesses no interest for its own uses ; and secondly, that it is not prop- erty held in trust for t!\e public, for of such property the cor- poration is the mere agent of the State. In its streets, wharves, cemeteries, hospitals, court-houses, and other public buildings the corporation has no proprietary rights distinct from the trust for the public. It holds them for pubhc use, and to no other use can they be appropriated without special legislative sanction. It would be a perversion of that trust to apply them to other uses. The courts can have nothing to do with them, unless appealed to on behalf of the public to prevent their diversion from the public use. The dissolution of the charter does not divest the trust so as to subject property of this kind to a liability from which it was previously ex- empt. Upon the dissolution the property passes under the immediate control of the State, the agency of the corporation then ceasing. (2 Dillon on Municipal Corporations, sections 445, 446; S'chaelier v. Cadwalader, 36 Penn. St., 126; Dav- enport V. Ins. Co., 17 Iowa, 276; Louisville o. Commonwealth, 1 Duvall, 275 ; President v. Indianapolis, 12 Indiana, 620.) In the third place, we saj' that taxes previously levied but not collected on the dissolution of the corporation do not con- stitute its property; and in the absence of statutory authority they cannot he subsequently collected by a court of equity through ofiicers of its own appointment, and applied to the payment of the creditors of the corporation. Taxes are not debts. It was so held by this court in the case of Oregon v. Lane County, reported in 7th Wallace. Debts are obligations for the payment of money founded upon contract, cxpi'ess or implied. Taxes are imposts levied for the support of the gov- ernment, or for some special purpose authorized by it. The consent of the tax-payer is not necessai'y for their enforcement. They operate in invitum. Nor is their nature affected by the fact that in some States, and we believe in Tennessee, an action of debt may be instituted for their recovery. The form 1880.] City OF Memphis I'. Gaeeett. 867 Opinion of the court. of pi'ocedure cannot change their character. (City of Augusta V. North, 57 Maine, 393 ; Cily of Camden v. Allen, 2 Dutcher, 378 ; Perry v. Washburn, 20 California, 350.) Nor are they different when levied under writs of mandamus for the pay- ment of judgments, and when levied for the same purpose by statute. The levj' in the one case is as much by legislative au- thority as in the other. The writs of mandanms only require the officers of assessment and collection to obey existing law. In neither case are the taxes liens upon propertj' unless made so by statute. (Philadelphia v. Greble, 33 Peun. St., 339 ; Howell r. Philadelphia, Id., 471; 2 Dillon on Mun. Corp., 659.) Levied only by authority of the Legislature, they can be altered, post- poned, or released at its pleasure. A repeal of the law under which a tax is levied, at any time before the tax is collected, generally puts an end to the tax, unless provision for its con- tinuance is made in the repealing act, though the tax may bo revived and enforced by subsequent legislation. We say gen- erally, for there are some exceptions, where the tax provided is so connected with a contract as the inducement for its execu- tion that the courts will hold the repeal of the law to be in- valid as impairing the obligation of the contract. It is not of such taxes, constituting the consideration of contracts, that we are speaking, but of ordinary taxes authorized for the support of goyernment, or to meet some special expenditure; and these, until collected — being mere imposts of the government, cre- ated and continuing only by the will of the Legislature — have none of the elements of property which can be seized, like debts by attachment or other judicial process, and subjected to the payment of creditors of the dissolved corporation. They are in no proper s'ense of the terra assets of the corporation; they are only the means provided for obtaining funds to sup- port its government and pay its debts, and disappear as such means with the revocation of the charter, except as the Legis- lature may otherwise provide. When they are collected, the moneys in the hands of the collecting officer may be controlled by the process of the courts, and applied by their direction to 368 City of Memphis v. Garrett. [Oct. Term, Opinion of the court. the uses for which the taxes were levied; but until then there is nothing in existence but a law of the State imposing certain charges upon persons or property, which the Legislature may change, postpone, or release at any time before they are en- forced. So long as the law authorizing the tax continues in force, the courts may, by mandamus, compel the officers em- powered to levy it or charged with its colleotjon, if unmindful and neglectful in the matter, to proceed and perform their duty; but when the law is gone, and the office of the collector abolished, there is nothing upon which the courts can act. The courts cannot continue in force the taxes levied, nor levy uew taxes for the payment of the debts of the corporation. The levy- ing of taxes is not a judicial act. It has no elements of one. It is a high act of sovereignty, to be performed only by tbe Legis- lature upon considerations of policy, necessity, and the public welfare. *In the distribution of the powers of government in this country into three departments, the power of taxation falls to the legislative. It belongs to that department td determine what measure shall be taken for the public welfare, and to provide the revenues for the support and due administration of the government throughout the State and in all its sub- divisions. Having the sole power to authorize the , tax, it must equally possess the sole power to prescribe the means by which the tax shall be collected, and to designate the officers through whom its will shall be enforced. It is the province of the courts to decide causes between parties, and, in so doing, to construe the Constitution and the statutes of the United States and of the several States, and to declare the law, and, when their judgments are rendered, to enforce them by such remedies as legislation has prescribed, or as are allowed by the established practice. When they go beyond this they go outside of their legitimate domain, and encroach upon the other departments of the government; and all will admit that a strict confinement of each department within its own jjroper sphere was designed by the founders of 1880.] City OF Memphis t). GAiiKiiTX. 369 Opinion of the court. our governjiient, and is essential to its Buccessful administra- tion. This doctrine is not new in this conrt. It has been repeatedly asserted, after the most mature consideration. It was asserted in Eces v. The City of Watertown. There the plaintiff, being the owner of certain bonds issued by the city of Watertown, in Wisconsin, to a railroad company, brought suit upon them in the Circuit Court of the United States and recovered two judgments amounting to about $10,000. Upon these judg- ments he issued executions, which were returned unsatisfied. He then applied to the Circuit Court and obtained a writ of mandamus upon the authorities of Watertown to levy and collect a tax upon the taxable property of the city to pay the judgments; but before the writs could be served a majority.of the members of the council resigned their offices. Subsequent writs of mandamus obtained by him proved inoff'ectual for similar resignations. He then filed a bill alleging that the cor- porate authorities were trustees for the benefit of the creditors of the city ; that the property of the citizens was a trust i'und for the payment of its debts, and that it was the duty of the court to lay hold of such property and cause it to be applied; and he prayed that the conrt would subject the taxable propertj- of the city to the payment of the judgments. To this bill the city made answer, and on the argument of the case, among other points, the question arose whether it was competent for the court, on the failure of the ofi[icers of the city to levy the tax as required by law, to appoint the marshal of the court to levy and collect the tax to pay the judgments. Upon this • question, the judges being divided, the point was certified to this court. In disposing of it wo said : " We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only, and second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially 24 370 City op Memphis v. Garrett. [Oct. Term, Opinion of the court. is it beyond the power of the Federal judiciary to assume the place of a State in the exercise of this authority, at once so delicate and so important." (19 Wall., 116.) In the case of Heine o. The Levee Commissioners of New Orleans the question again arose whether it was competent for the Circuit Court of the United States to direct its officers to levy and collect a tax to pay the claims of the plaintiffs, who were holders of bonds issued by the commissioners, and the answer was equallj' emphatic both in the Circuit Court and in this court. In the Circuit Court, over which Mr. Justice Bradley then presided, the possession of the power of taxation had been denied. "The judicial department," said the justice, "has no power over the subject. If the officers who are charged with the duty of laying or collecting taxes refuse to perform their functions, the court, in a clear case of failure, and at the in- stance of a party directly interested, can, by the prerogative writ of mandamus, compel them to perform acts which are ministerial, as distinguished from those which are judicial or discretionary. This is all that the judicial department can do on the subject, unless tbe Legishiture has expressly conferred upon it further powers." (1 Woods, 247.) And when the case came before this court, we here said, Mr. Justice Miller delivering the opinion: "The power we are here asked to exercise is the very delicate one of taxation. This power belongs, in this country, to the legislative sover- eignty, State or national. In the case before us, the national sovereignty has nothing to do with it. The power must be derived from the Legislature of the State. So far as the pres- ent case is concerned, the State has delegated the power to the levee commissioners. If that body has ceased to exist, the remedy is in the Legislature, either to assess the tax by special statute, or to vest the power in some other tribunal. It certainly is not vested, as in the exercise of an original jurisdiction, in any Federal court. It is unreasonable to" suppose that the Legislature would ever selt'ct a Federal court for that purpose. 1880.] City op Memphis v. Garrett. 371 Opinion of tlie court. It is not only not one of the inherent powers of the court to levy and collect taxes, but it is an invasion by the judiciary of the Federal government of the legislative functions of the State government. It is a most extraordinary request, and a compliance with it would involve consequences no less out of the way of judicial procedure, the end of which no wisdom can foresee." (19 Wall., 661.) These authorities — and many others to the same purport might be cited — are sufficient to support what we have said, that the power to levy taxes is one which belongs exclusively to the legislative department, and from that it necessarily fol- lows that the regulation and control of all the aigencies by which taxes are collected must belong to it. When creditors are unable to obtain payment of their judg- ments against municipal bodies by execution, they can proceed by mandamus against the municipal authorities to compel them to levy the necessary tax for that purpose, if such authorities are clothed by the Legislature with the taxing power, and such tax, when collected, cannot be diverted ,to other uses; but if those authorities possess no such power, or their offices have been abolished and the power withdrawn, the remedy of the creditors is by an appeal to the Legislature, whicli alone can give them relief. ISTo Federal court, either on its law or equity side, has any inherent jurisdiction to lay a tax for any purpose, or to enforce a tax already levied, except through the agencies provided by law. However urgent the appeal of creditors and the apparent hopelessness of their position without the aid of the Federal court, it cannot seize the power which belongs to the legislative department of the State and wield it in their behalf. To return to the qu^tion propounded : What is the property of a nmuicipal corporation which, on its dissolution, the courts can reach and apply to the payment of its debts ? We answer, it is the pi-ivate property of the corporation ; that is, such as it held in its own right for proiit or as a source of revenue, not charged with any public trust or use, and funds 372 City of Memphis v. Garrett. [Oct. Term, Opinion of the court. in its possession unappropriated to any specific purpose. In this respect the position of the extinct corporation is not dis- similar to that of a deceased individual ; it is only such prop- erty as is possessed, freed from any trust, general or special, which can go in liquidation of debts. The decree of the Circuit Court, proceeding upon a ditierent theory of its control over the uncollected taxes of the repealed corporation, and of the property which could be applied to the payment of its debts, cannot be maintained. On another ground, also, the decree is equally untenable. It adjudges that "all the property within the limits of the ter- ritory of the city of Memphis is liable, and may be subjected to the payment of all the debts" for which the suits are brought, and that " such liability shall be enforced thereafter, from time to time, in such manner" as the court may direct. In no State of the Union, outside of New England, does the doctrine obtain that the private property of individuals within the limits of a municipal corporation can be reached by its creditors and subjected to the payment of their demands. In Massachusetts and Connecticut, and perhaps in other States in New England, the individual liability of the inhabitants of towns, parishes, and cities, for the debts of the latter, is main- tained, and executions upon judgments issued against them can be enforced against the private property of the inhabitants. But this doctrine is admitted by the courts of those States to be peculiar to their jurisprudence and an exception to the rule elsewhere prevailing. Elsewhere the private property of the inhabitants of a municipal body cannot be subjected to the payment of its debts, except by way of taxation ; but taxes, as we have already said, can only be levied by legislative author- ity. The power of taxation is not one of the functions of the judiciary ; and whatever authority the States may, under their constitutions, confer upon special tribunals of their own, the Federal courts cannot, by reason of it, take any additional powers which are not judicial. In Rees v. The City of W'atertown, from which we have al- 1880.] City of Memphis v. Garrett. 373 Opinion of the court. ready quoted, the power asserted by tlie decree was claimed by counsel, but was rejected by the court. "Assume," said the court, "that the plaintiff is entitled to the payment of his judg- ment, and that the defendant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary proceeding would involve a violation of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a de- fense to the debt itself, or, if the judgment is valid, to show that his property is not liable to its payment. It is well set- tled that legislative exemptions from taxation are valid ; that such exemptions may be perpetual in their duration, and that they are, iu some cases, beyond legislative interference. The proceeding supposed would violate the fundamental principle contained in chapter 29 of Magna Charta, and embodied in the Constitution of the United States, that no man shall be de- prived of his i^roperty without due process of law ; that is, he must be served with notice of the proceeding, and have a day in court to make his defense." (19 Wall., 122.) It is pressed upon us with great earnestness by counsel, that unless the Federal courts come to the aid of the creditors ot Memphis, and enforce, through its own officers, the taxes levied before the repeal of its charter, they will be remediless. But the conclusion does not follow. The taxes levied pursu- ant to writs of mandamus issued by the Circuit Court are still to be collected, the agency only for their collection being changed. The receiver appointed by the Governor has taken the place of the collecting officers of the city. The funds re- ceived by him upon the special taxes thus levied cannot be appropriated to any other uses. The receiver, and any other agent of the State for the collection, can be compelled by the court, equally as the former collecting officers of the city, to proceed with the collection of such taxes by the sale of prop- erty or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgments. If relief is not thus 374 City of Memphis v. Garriett. [Oct. Term, Dissenting opinion. afforded to the creditors, they must appeal to the Legislature. We cannot presume that the appeal will be in vain. We can- not say that on a proper representation they will not I'eceive • favorable action. It is certainly of the highest importance to the people of every State that it should make provision, not merely for the payment of its own indebtedness, but for Ihe payment of the indebtedness of its different municipalities. Hesitation to do this is weakness; refusal to do it is dishonor. Infidelity to en- gagements causes loss of character to the individual ; it entails reproach upon the State. The Federal judiciary has never failed, so far as it was in its power, to compel obedience to all lawful contracts, whether of the individual, or of the municipality, or of the State. It has unhesitatingly brushed aside all legislation of the State im- pairing their obligation. When a tax has been authorized by law to meet them, it has compelled the ofiicers of assessment to proceed aud .levy the tax, and the officers of collection to. proceed and collect it and apply the proceeds. In some in- stances, where the tax was the inducement and consideration of the contract, all attempts at its repeal have been held in- valid. But this has been the limit of its power. It cannot make laws when the State refuses to pass them. It is itself but the servant of the law. If the State will not levy a tax,' or provide for one, the Federal judiciary cannot assume the legislative power of the State and proceed to levy the tax. If the State has provided incompetent officers of collection, the Federal judiciary cannot remove them aud put others more competent in their place. If the State appoints no officers of collection, the Federal judiciary cannot assume to itself that duty. It cannot take upon itself to supply the defects aud omissions of State legislation. It would ill perform the duties assigned to it by assuming power properly belonging to the legislative department of the State. Strong, J. (dissenting.) — ^The several bills of the complain- 1880.] Ctty of Memphis v. Garrett. 375 Dissenting opinion. ants were consolidated in the Circuit Court, and, so far as it appears, without objection. They are, therefore, to be consid- ered as one case. The important facts averred in the bills and confessed by the demurrer are the following: The complainants are creditors of the city of Memphis. Eor a part of their claims they had recovered judgments against the city before the bills were tiled, and had obtained writs of mandamus to enforce the levy of taxes to satisfy the judgments. In obedience to these writs the proper city authorities had levied the taxes required, but had neglected to collect them in large u:ieasure, and, even when a portion of the taxes had been col- lected, had failed to appropriate the money collected to the payment of the judgments for which it had been specially lev- ied, and to which alone it could be lawfully applied. Some of the money thus collected remained on deposit. These levies were made during the years 1875, 1876, 1877, and 1878, the city ordinances by which they were ordered specifying the amounts and the parties for whom the taxes were levied. The complainants were also large general creditors of the city, holding its obligations, upon which no judgments had been re- covered. Besides the special levies, made as above stated, the city authorities had made others for the purpose of paying interest on the city debt and for general uses. These taxes also re- mained uncollected. Meanwhile the city had nothing Hablo to execution at law, and no property excejat what it held for public uses, in distinction from private ; such as public mu- nicipal buildings, parks, streets, fire apparatus, &c., &c. It was insolvent. Such was the situation when these bills were tiled. Their object was to obtain the appointment of a receiver to take pos- session of the assets of the city, (including the collected but not appropriated taxes, as well as the claims and bills for past-duo and uncollected taxes,) and to collect the same with a view to their being applied according to equity and legal right. The principal one of the consolidated bills was tiled on the 376 City of Memphis v. Gaekett. [Oct. Term, Dissenting opinion. 28th day of Januaiy, 1879, by Garrett et al. Almost imme- diately after it was filed — the uext day, indeed — an act of the Legislature of the State was passed, (approved January 31, 1879,) by which the charter of the city was repealed, all power of taxation in any form was withdrawn from its authorities, and all persons holding office under the repealed acts, which constituted the charter and endowed it with power, were pro- ■hibited from attempting to exercise any of the functions of their offices. The public buildings, squares, promenades, wharves, streets, alleys, parks, fire-engines, hose and carriages, engineer instruments, and all other property, real and personal, there- tofore used for municipal purposes, were declared to be trans- ferred to the control and custody of the State, to remain public property, as it always had been, for the uses to which it had theretofore been applied. The act contained no reservation of the rights of creditors, and said nothing of any outstanding taxes which had been levied but not collected, and it was de- clared to take eliect from and after its passage. On the same day, January 29, 1879, another act of the Legislature was passed, (approved January 31, 1879,) by which the identical territory that had been, embraced in the terri- torial limits of the city of Memf)his was erected into what the act calls a " taxing district." The act declared that the necessary taxes for the support of the government thus estab- lished should be imposed directly by the General Assembly of the State, and not otherwise. It established a board of fire and police commissioners, a committee on ordinances or local laws, to be known as the legislative council, consisting of the com- missioners of the fire and police boards and the supervisors of the board of public works. It established also a board of health and a board of public works. The act prohibited the commis- sioners from issuing any evidences of indebtedness, and de- clared that no property, real or personal, held by them for public use, should ever be subject to execution, or attachment, or seizure under any legal process for any debt created by said commissioners, and that all taxes due, or moneys in the hands 1880.] City of Memphis v. Garrett. 377 Dissenting opinion. of the county trustee, or on deposit, should be exempt from seizure under attachment, execution, garnishment, or other legal process. The act also declared that neither the commis- sioners, nor the trustee, nor the new government created by the act should pay or be liable for any debt created by the extinct corporation, i. e., the city of Memi^his, and that none of the taxes collected under the act should ever be used for the payment of any of the said debts. The act was declared to take effect from its passage. Its fourteenth section, as sub- sequently amended, declared that all the property of the city mentioned as transferred to the State by the act first men- tioned should be thereby transferred to the custody and con- trol of the board of commissioners of the taxing district, and that all indebtedness for taxes or otherwise, whether in litiga- tion or not, due the municipality, namely, the city, should vest in and become the property of the State, to be disposed of as should thereafter be provided by law. These two acts were passed, as has been noticed, on the 29th of Jauuary, 187^9, and approved two days thereafter. On the 4th of February, 1879, the complainants, Garrett et al., filed, by leave of the court, an amended and supplemental bill, averring what had been charged in the original, and set- ting forth, inter alia, these acts of the Legislature, denying their constitutionality and praying, as in the original bill, for the appointment of a receiver, and praying also that the bill might be taken as a general creditors' bill for all creditors who might come in within a limited time and prove their claims. The other bills were filed severally on January 30, 1879, February 3, 8, and 10, next following, and on the 12th of Feb- ruary the cases were consolidated, and T. J. Latham, Esq., was aijpointod a receiver in accordance with the prayer of the com- plainants. He gave the. required bond on the same day and took immediate possession of the tax books, bills, &c., of the city. Subsequently, on the 13th of March, 1879, the Legislature of the State passed another act, the first section whereof di- 378 GiTyoFMBMEHiST. Ga^kjstt. [Oct. Term, Pisaeiiting opinion. reeted the Governor to appoint" an officer for municipal cor- porations whose charters had been repealed, (the city of Mem- phis being the only one.) ^to hb known as a receiver and' back- tax collector. Subsequent sections required such receiver and collector to take possession df all books, papers, and documents pertaining to the assessment and collection of the taxes cm- braced by the act, namelj', the taxes due at the time of the repeal of the charter. It further directed that the receiver should file a bill in the Chancery Court (of the ^tate), an orig- inal creditors' bill, in the nanae of the State, on behalf of all the creditors, against all the delinquent tax-payers; and it pro' vided that taxes assessed prior to 1875 might be settled in the valid indebtedness; of the extinct, municipality, to wit, in valid bonds, whether due or not, due coupons, and any other valid debts of such municipality, with accrued interest^ whether iu the shape of scri^; Warrants, judgments, ledger balances, pav- ing certificates, or receipts for money paid byltax-payers to pav- ing contractors. It directed the receiver and back-tax collector to receive such evidences of debt at the following rates, viz. : compromise bonds at their face value; all other indebtedness at fifty cents on the dollar, except judgments, which should be received at fifty-five per cent. 6f their face value. The act also directed that the receiver should receive in pay- ment of taxes levied after 1874 the indebtedness of the munici- pality, when there was no lien or equity requiring payment thereof in current money. It also prohibited the collector or receiver from coercing payment of a greater sum than one-fifth of the taxes in arrear annually, so as to distribute the whole through five equal annual installments, commencing from his appointment and qualification ; and it remitted all costs of con- demnation, penalties, and charges; provided, however, that nothing therein contained was intended to interfere with any vested rights entitling the party having such right to a speedy collection. Under the provisions of this act, Minor Meriwether, the prin- cipal appellant, was appointed receiver and back-tax collector 1880.] City OF Memphis v.. Gaerett. 379 Dissenting opinion. by the Govei'nor of the State. He accepted the appointment and proceeded to demand the payment to him of the taxes in arrears, interfering with the receiver previously appointed by the Circuit Court, and impeding that receiver in the discharge of his duties. The complainants then filed a supplemental liill, making Meriwether a party deifeiidant, together with some defaulting tax-payers, and praying, among other things, for an injunction against such interference. To the consolidated bill thus amended and supplemented, a general demurrer was filed, which was not sustained by the Circuit Court, and, the defendants electing to stand upon it, a final decree was entered in favor of the complainants. From that decree this appeal has been taken. ■ Whatever may be said of the equities of the complainants and cf their power to enforce those rights in a court of equity, I agree that the decree as entered was too broad. It declared and adjudged that all the assets and property of every descrip- tion theretofore belonging to the city of Memphis, or so much thereof as may be necessary for the purpose, including taxes theretofore assessed and remaining unpaid and due the city, should be applied to the payment of the debts due to the com- plainants and other creditors who had made, or might there- after make, themselves parties to the suit. This included not only the private property of the citj% but also that which it had held for public uses, viz., for governmental purposes and as a triistee for the State; such as the public buildings, streets, squares,, parks, school -houses, promenades, fire-engines, hose and, hose carriages, engine-houses, engineering instru?nents, and generally everything. held by the city for merely munici- pal purposes. To this extent, I think, the decree cannot be sustained. Such property cannot be subjected to the payment of the debts of the* corporation Its public character forbids such an appropriation. It could not be subjected to taxation at the instance of the municipality. It was never held for the payment of debts. Instead thereof, it was held by the city merely as a trustee for the public. It would not be contended 380 City ob Memphis v. Gakkett. [Oct. Term, Dissenting opinion. that it could have been taken in execution at law, and for the same I'eason it cannot be reached in equity to satisfy creditors. I think, also, that part of the decree which adjudges that all the property within the limits of the territory of the city of Memphis is liable, and may be subjected to the payment of all the debts owing by the city, and that such liability shall be enforced hereafter, from time to time, in such manner as the Circuit Court might order and direct, is erroneous. Notwith- standing what has been held in some of the New England States, I think the doctrine is generally accepted that the pri- vate property of individuals within the territorial limits of a municipal corporation cannot be reached by its creditors di- rectly, any more than the private property of stockholders in other corporations can be thus reached. It may, it is true, be subjected to taxation for the payment of the corporate debts, but the levy of taxes must be made by the corporation itself, or by the State. It is not a judicial act, and courts of equity, at least the Circuit Courts of the United States, cannot by their own officers levy a tax. (Eees v. Watertown, 19 Wall.., 107.) And certainly they have no power to compel the levy of a tax by a corporation which is without officers and which has ceased to exist. But while, in these particulars and for these reasons, the decree entered by the Circuit Court cannot be sustained in its full extent, I am of opinion that the complainants are enti- tled to some of the relief granted theni by the decree. If they are not, then a new way has been discovered to pay old debts. It cantiot be that a corporation, whether municipal or not, can be dissolved, and that by its dissolution its property can be withdrawn from the reach of its just creditors by any process of law or equity. No doubt there are technical difficulties in the way of maintaining proceedings at law against a corpora- tion after its charter has been repealed, but a court of equity is competent to enforce justice to some extent, even where the processes of law fail. A case, I think, was made by the bill for the appointment of a 1880.] City of Memphis v. Garrett. 381 Dissenting opinion. receiver to take into the possession of the court those taxes which had been levied by judicial direction for the payment of judg- ments recovered against the city — taxes which had been only partially collected. Those taxes were, in a most legitimate sense, charged with a trust, and a trust for the complainants. The fund to be raised by the levies was set apart for a special purpose. It could be used lawfully for no other. The ordi- nances which directed the levies specified the amounts to be raised and the judgnlent creditors for whose use the levies were made. Those creditors were, therefore, cestuis que trust in the fullest sense of the term, the legal interest alone being in the city. The case shows that this trust had been neglected and abused by the trustee. The taxes which it was the duty of the city as trustee to collect had been suii'ered to remain uncollected in great measure and for an unreasonable time, and even the portions which were collected had not been paid over as the writs of mandamus required. This breach of duty by the trustee had continued from 1875 to 1879. Had the trustee been a natural person, or a private corporation, no one would doubt the power of a court of equity to interfere and take the trust out of the hands of the faithless trustee, either by removing him and appointing another trustee, or by admin- istering the trust by its own officers. It can make no differ- ence that the city of Memphis was a municipal corporatiou. Its character- as such does not aft'ect the nature of its obliga- tions to its creditors or its cestuis que trust, or impair the rem- edies they would have if the city was a common debtor or trustee. While as a municipal corporation the city had public duties to perform, yet in contracting debts authorized by the law of its organization, or in performing a private trust, it is regarded by the law as standing on the same footing as a pri- vate individual, with the same rights and duties and with the same liabilities as attend such persons. Over its public duties, it may be admitted, the Legislature has plenary authority. Over its private obligations it has not. (Bailey v. The Mayor of New York, 3 Hill, 539; Small v. Danville, 51 Maine, 361; 382 City of Memphis v. Garrett. [Oct. Term, Dissenting opinion. Oliver v. Worcester, 102 Mass., 502 ; Dillou on Municipal Corporations, sec. 39, and cases cited in the notes.) Moreover, if, as contended by the appellants, the city of Memphis ceased to have any legal existence on the 31st day of January, 1879, when the legislative act repealing the char- ter was approved, the ease then became one of a trust without a trustee, preeminently tit for equitable interference. A court of equity will not permit a private trust to fail for want of a trustee. And this rule is applicable to cases in which a munici- pal corporation has been nominated the trustee. (Girard v. Philadelphia, 7 Wall., 1; Philadelphia v. Fox, 6.4 Pen n. St., 169; Montpelier r. East Montpelier, 29 Vt., 12.) In such cases, as in cases where a natural pei'son or a private corpora- tion is the trustee, and the person has died or the corporation ' has been dissolved, the court will appoint a new trustee, or exe- cute the trust by its own ofEeers or agents. In Potter on Cor- ' porations, sec. 699, it is said-: " Where in any way the legal existence of municipal trustees is destroyed by legislative act, a court of equity will assume the execution of the trust, and, if necessary, will appoint new trustees to take charge of the prop- erty and carry into effect the trust." In Pligh on Receivers, 304-305, it is said : " When creditors of a corporation have a charge upon a particular fund, in the nature of a trust fund, the mismanagement or waste of such ilmd by those intrusted with its control will warrant the appointment of a receiver." So in Batesville Institute k. Kauft'man, 18 Wall., 154, this court, when speaking of the power of a court to appoint a new trustee in place of one deceased, said: " It is, however, within ' the power of a court of equity to decree and enforce the exe-. cution of the trust through its own officers and agents,' without the intervention of a new trustee," citing Story's Equity, 976- 1060. Without further citations, which might easily be made, en- ough has been said to show that in the present case the Circuit Court was authorized to seize by the hands of its own receiver, for administration, those taxes which had been levied specially 1880.] City op Memphis v. Gaeeett. 38S Diasenting opinion. for the paj'ment of judgments recovered, in regard to which the city had occupied the relation of a trustee, at least practically. Much of what I have said is equally applicable to the taxes which the city during its corpoi'ate existence had levied for the payment of interest on its debt, or for other purposes, and had not collected, and generally to all the assets of the city of every character, except such as I have heretofore mentioned, held for strictly public uses, such as public buildings, parks, fire apparaitus, &c. These general assets, though not held specially in trust for any particular creditors, were held by the corpora- tion, in a very just sense, for the benefit of its creditors. The coi-poration having ceased to exist, it was perfectly within the power of the Circuit Court, sitting as a court of equity, to seize all its assets to which its creditors have an equitable or legal claim, and hold them for administration. Such assets cannot be appropriated to any other use until the creditors are satis- fied. Even legislative actiisii cannot divert them to other uses. These principles have been fully recognized, and particularly in the code of Tennessee. Referring to dissolved corporations, that code enacts (sec. 3426): "The court shall appoint a re- ceiver, with full power to take possession of all the debts and property, and sell and dispose of, collect, and distribute the same among the creditors and other persons interested, under the orders of the court." This statute is only an affirmance of equitable remedies before acknowledged and found in text- books. Thus, in Potter on Corporations, sees. 714-715, the rule is thus stated : " Whatever technical difficulties exist in maintaining an action at law against a corporation after its charter has been repealed, in the apprehension of a court of equity there is n'o difficulty in a creditor's following the prop- erty of the corporation irito the hands of one not a hona-juie creditor or purchaser, asserting his lien thereon, and obtaining satisfaction of his dobt." In Broughton v. Pensacola, 93 U. 8. Rep., 268, the language of the court was: "The ancient doc- trine, that upon the repeal of a private corporation its debts were extinguished, and its real property reverted to its grant- 384 City oe Memphis v. Gaekett. [Oct. Term, Dissenting opinion. ors, and its personal property vested in the State, has been so far modified that a court of equity will now laj' hold of the property of. a dissolved corporation and administer it for the benefit of its creditors, and its contracts may be so far enforced by a court of equity as to subject for their satisfaction any prop- erty possessed by the corporation at the time. In the view of equity its property constitutes a trust fund pledged to the pay- ment of the debts to creditors. And if a municipal corporation, upon the suri'ender of its charter, be possessed of any property, a court of equity will equally take possession of it for the benefit of the creditors of the corporation." So in Curran v. Arkansas, 15 How., 307, it was said: "The assets of a corporation are assets for the payment of its debts, and are trust funds for that purpose." (See also Maeuhout v. jSIew Orleans, 2 Woods, 112-114.) In Dillon on Municipal Corporations, section 37, the rule is stated thus: " Where tiie legal existence of a municipal trustee is destroyed by legislative act, a court of chancery will assume the execution of the trust, * * * take charge of the property, and carry into eftect the trust." In Beckwith v. Racine, 7 Biss., 142, the court said: " Where a contract cannot be enforced at law against a municipal cor- poration, owing to a repeal of its charter, and there are any funds, a court of equity will administer them for the benefit of creditors." • It is hardly necessary to say that the private property of a municipal corporation is so decidedly stamped with a trust in favor of its creditors that it is incapable of being diverted to other uses by the legislation of the State. This law has again and again been declared. (Grogan v. San Francisco, 18 Cal., 613, by Field, J.; Commissioners v. Detroit, 28 Mich., 236; City of Dubuque v. Illinois Central Railroad Company, 39 Iowa, 67, 68.) The citiitions I have made (many others might be added) are sufficient to maintain the jui'isdiction of the Circuit Court in this case, and its power to lay hold, by its receiver, of all the 1880.] City of Memphis v. Garrett. 385 Dissenting opinion. property and assets belonging to the city of Memphis when its charter was repealed, including all taxes levied and collected but undisposed of, and all taxes uncollected, all property pur- chased by the city in sales for taxes, and all assets of evcrj- description, except the property above mentioned held for strictly public uses, and also to admiiijster such assets for the benefit of the creditors. I do not contend that a court of equity can itself levj/ a tax. I agree it cannot, and so this court has decided. (Rees i\ Watertown, 19 Wall., supra.) The art>;ument which has been submitted to prove that the Circuit Court has no such powc." is quite unnecessary. It is inapplicable to the case we have in hand. The complainants' bill asked for no assessment or levy of a tax, and the Circuit Court decreed none. The levy of a tax is a ver^' distinct thing from the collection of a tax already levied. The levy is generally a legislative or a g'Masi-judicial act. The collection of a tax after it has been levied is a min- isterial act, which a court has power to enforce. I have said, and I earnestly maintain, that the taxes which the city of Memphis had levied before the repeal of its charter, some of which were collected but remained on deposit or un- disposed of, and some of which are not collected, are assets of the corporation, which its creditors have an equitable right to have seized and appropriated to the payment of the corporate debts. By the lawful assessment and levy of a tax the tax- payer becomes a debtor to the municipality, and the debt may be recovered, like other debts, by a suit at law ; or, when it is a lien, by a bill in equity. Such certainly is the law of Tennes- see. (Jonesborough v. McKee, 2 Yerger, 170 ; Eutledge v. Fogg, 3 Cold., 560 ; Marr v. The Bank of Tennessee, 4 Cold., 487.) The imposition of a tax creates a legal obligation to pa}'. In The Dollar Savings Bank v. The United States, 19 Wall., 227, this court ruled that, independently of an act of Congress' authorizing them, suits at law may be maintained by the United States to recover taxes assessed and levied. The statutes of Tennessee leave the matter in.no. doubt, sofai*. as -it 25 386. City OF Memphis I?. Garrett. [Oct. Term, Dissenting opinion. relates to the rule in that State; and in the Civil Code, sec- tions 554, 555, it is enacted that assessed taxes shall be and remain liens upon all taxable property of the person against whom they are assessed. If they are liens, they are enforcible in equity. It is passing strange if those claims which, by the law of the State, are debts to the city and collectible as such by the ordinary processes of law, are not assets of the corporation for the payment of its debts. And if they can be collected in the State courts, I am unable to see why the Circuit Court of the United States, sitting in Tennessee, and having juris- diction, may not also collect them or seize them as assets of an insolvent and dissolved corporation. I cannot perceive why they are not as truly assets of the city as are the assessments made by an insolvent mutual insurance company its assets. Nobody would deny that such assessments could be seized by a court of equity, through the agency of its receiver, and ad- ministered for the benefit of the creditors of the company. No difficulty would be found in the way of collecting them. Thus far I have considered the merits of the case as unaf- fected by the legislation of the State, heretofore spoken of, except so far as that' legislation repealed the charter of the city. That legislation was certainly very extraordinary, and quite unprecedented in the history of the country since the Federal Constitution was adopted. Whatever may have been its purpose, and however carefully that purpose may have been disguised, if it can be sustained, its effect is to obstruct, if not totally destroy, all the power of the creditors of the city to enforce payment of the debts due them. They are remanded to the mere grace and favor of the Legislature. If ever legis- lation impaired the obligation of contracts, this did. If it had been simply the repeal of the municipal charter, no one could have called it in question. Undoubtedly the Legislature of a State may amend or dissolve the organization of a municipal corporation, so far as its governmental powers are concerned ; but no Legislature can so dissolve a corporation, nmnicipal or 1880.] City of Memphis v. Garrett. 387 Dissenting opinion. private, as to destroy or impair the obligation of any contracts the corporation may have made. (Dillon on Mun. Corp., sec. 114; Von HofFman v. The City of Quincy, 4 Wall, 53.5.) Creditors of municipal corporations are as completely within the protection of the Constitution as any other creditors. What is meant by "impairing the obligation of a contract" is well deiined. Embarrassments thrown by a statute in the way of enforcing payment of a debt, or a statutory substitution for the obligation and liability of the debtor, of the will of some other person, though that person he a State, have not heretofore been recognized as consistent with the Constitution. The protection afforded by its provisions and its prohibition of certain State legislation relate, not to the mode and form of State statutes, but to their operation or effect. In the view I take of the case, however, it is unnecessary to decide how far the legislation of the State is constitutional, or how far it is in conflict, if at all, with the paramount law which controls alike State and natural persons. Certainly the appointment by the Governor of Mr. Meriwether as a receiver and back-tax collector can have no effect upon the prior ap- pointment of Mr. Latham by the Circuit Court. It cannot confer upon Meriwether any right to interfere with the per- formance of the duties which the court had imposed upon its receiver. The jurisdiction of the Circuit Court had fully at- tached, and, by the action of its receiver, the assets of the city, the tax bills and books, had come into the possession of the court before Meriwether's appointment. That jurisdic- tion and possession cannot be divested by any State action. The injunction decreed against Meriwether was, therefore, I think, properly adjudged. I have thus stated, as briefly as possible, my reasons for dis- sent from the action of the majority of the court reversing the decree of the court below and ordering a dismissal of the complainants' bill. ' I think the decree should be modified by striking out so much of it as subjects to the payment of the debts of the city 388 Edwards v. The United States. [Oct. Term, Opinion of the court. the property held exclusively for public nses, and so much as subjects to such payment the .private property of all persons within the city's territorial limits. Thus modified, I think the decree should be affirmed. And I am authorized to say that my brethren, Justices Swayne and Haelan, concur with me in this dissent. Eeversed. Edwaed M. Edwakds v. The United States, ex kel. Will- iam F. Thompson. Ill this ease the court refuses to cli.smiss a writ of error where it bad not been doeketecl at the term at which it was i-etiiriiablc, on accoiTnt of the failure to give a proper honcl for costs, it appearing? that such faihire was through inadvertence, without any intention to gain delay, and where the motion to dismiss was not made till a new writ of error was barred by lapse of time Eeeoe to the Circuit Court of the United States for the Western District of Michigan. Motion to dismiss. H. F. Severens, for plaintiff in error. J. W. Stone, for defendant in error. Waite, C. J. — The writ of error in this case was returnable to thp October Term, 1877. The return was duly made and a transcript of the record lodged in the office of the clerk of this court on the 27th of September, 1877. A citation in due form was issued and served in time. By an oversight of the counsel for the plaintiff in error no fee bond was given, and the cause was not docketed during the term of 1877. No mo- tion to docket and dismiss was ever made, and on the 3d of September, 1878, the attention of counsel having been called to the omission of the security for costs, an acceptable bond was given and the cause docketed in form. Under these cir- cumstances we are not inclined to dismiss the suit. We are 1880.] Edwards i: The United States. 389 Opinion of the court. aware that iii some of the cases it has becu said that a writ of error or an appeal becomes inoperative if a transcript is not filed and the cause docketed during the term to which it is made returnable; but this has always been in cases where a return had not been made and a transcript had not been filed within the time. The language should, therefore, be construed in connection with those facts. In Owings v. Tiernan's Lessee, 10 Pet., 44, and Van Kensselaer v. Watts, 7 How., 784, leave was given to docket the cause after the term when the tran- script had been filed in time, but through inadvertence a fee bond had not been given, and there had not been in the mean- time a motion to docket and dismiss. That is this case. In Selma K K. Co. r. Louisiana National Bank, 94 U. S., 253, the transcript was tiled in time, but the cause not docketed because of a faih\re to furnish a fee bond. In this state of things, and while the default continued, a motion to docket and dismiss was made under rule 9 and granted. At the next tei'm the appellant appeared and moved to set aside the order of dismissal and docket his appeal. This we refused under circumstances of that case. After a cause has been docketed and dismissed, it cannot be again docketed unless by order of the court. Such is the rule. If a return is made and the tran- script deposited in the clerk's oflice in time, our jurisdiction is kept alive. The docketing of the cause after that is mere pro- cedure, and if unreasonably delayed the parties may be sub- jected to the consequences of a failure to prosecute a suit, which rest largely in the discretion of the court when not pro- vided for by rules. Rule 9 is of that class. In this case it is abundantly shown that the omission to give the bond was through inadvertence and without any in- tention to delaj' the due prosecution of the suit. No harm has been done, save possibly a short extension of the time for bring- ing on the hearing. The defendants in error have delayed their motion to dismiss until a new writ is barred by lapse of time. The motion is denied. Motion denied. 390 Fletchee v. Blake. [Oct. Term, Opinion of the court. Abdison C. Fletcher v. Marshall B. Blake. The patent granted on June 8, 1869, to the plaintiflf, for a certain descrip- tion of revenue stamps, construed not to be infringed by a stamp used by the defendant, a collector in New York,.Uie question being merely one of construction of that special patent, and involving no legal prin- ciple. Appeal from the Circuit Court of the United States for the Southern District of New York. Treadwell Cleveland and Joseph H. Choate, for appellant. S. F. Phillips, Solicitor- General, for appellee. Harlan, J. — This is an appeal from a decree in the Circuit Court of the United States for the Southern District of New York dismissing a bill in equity based upon an alleged in- fringement of letters-patent issued to the plaintiff in error on the 8th of June, 1869, for ah improvement in stamps used for revenue and other purposes. At the time of such alleged infringement the defendant was a collector of internal revenue. The revenue stamps the sale and use of which bj' him constitutes the basis of the claim herein for damages, were sold and used in pursuance of direc- tions by the Commissioner of Internal Kevenue, and in dis- charge of defendant's duties as such collector,, and for no other purpose. The action is further defended upon the ground that the stamps so sold and used by the defendant, known as tax- paid special stamps, rectified spirit stamps, and wholesale liquor dealers' stamps, were not constructed in accordance with the specifications, claims, and drawings of the letters-patent; that there has been no intringement upon any right or privilege secured to plaintiff by his letters-patent; and, lastly, that the alleged improvement was neither useful nor valuable. The Solicitor-General, in both his oral and printed argu- ments, claims that although the grant to the patentee, his heirs 1880.] Fletcher v. Blake. 391 Opinion of the court. and assigns, was of an exclusive right for a prescribed term to make, use, and vend his invention or discovery, the United States are at liberty to use the thing protected without making compensation to the patentee. This, upon the ground that the government is not named in the patent law as being excluded from using the invention or discovery which may be patented. To support that position reference is made to several adjudged cases in the English courts. (Feather v. The Queen, 6 Best & S., 257; Walker v. Congreve, 1 Carpmeal, 356 ; and Dixon v. Small-Arms Co., L. E., 10 Q. B.,'130.) In view of those de- cisions, we are invited, notwithstanding what was said in Burns V. U. S., 12 Wall., 246, repeated in Cammeyer v. Newton, 4 Otto, 235, to re-examine the question as to the right of the United States, without the consent of the patentee, and with- out making compensation, to use in the public business any invention or discovery for which letters-patent may have been issued. It has also been suggested that since the collector, in using the stamps in question, acted in accordance with orders of his superior officers, he can in no event be held individually lia- ble to the plaintiff, and that the claim of the latter, if any ho has, should be asserted directly against the United States. We deem it unnecessary to pass upon either of the forego- ing propositions, because we are all of opinion, passing by all other questions in the case, that the stamps used by the col- lector are not included in the patent of the plaintiff. That which plaintiff claimed and desired to be secured was described iu the schedule referred to in the letters-patent as " a postage or revenue stamp having a portion of its surface composed of thin or fragile paper, or other suitable material, loosely attached, and on lohich a portion of -the design or other matter is printed, substantially as and for the purposes set forth." Referring to the descriptive portion of the schedule, the invention is declared to consist " in providing the stamp with a flap or flaps covering a portion of its face, and arrang- ing the requisite design or printed matter on such stamp to 3'92 Fletcher v. Blake. [Oct. Term, Opinion of the court. extend over the flap orflMps and remaiiiing or uncovered portion of said face or body of the stamp. By this application of my invention as applied to an adhesive stamp, whether for inter- nal or other purposes, said stamp may be cancelled by tearing oft' the flap or flaps, which, if necessary, may be preserved as evidence of the cancellation ; or where not required to be pre- served, the flap or flaps may cither be torn off and thrown away, or be so mutilated by the act of canceling as heretofore prac- ticed on postage stamps (which, and other adhesive stamps, ray invention is equally applicable to) as that it will be impossible to use the same stamp over, again without detection of the fraud." Upon comparing the stamp as thus described with the stamp used by the defendant, we are satisfied that the latter is not covered by the plaintiff's patent. It is a difterent article alto- gether from that described in the specifications and claim of the plaintift'. The stamp used by the government is composed ot one continuous piece of paper, of uniform thickness, upon the face of which is certain printed or engraved matter, with blanks in which are inserted, at the appropriate time, certain figures and names required by law to appear upon revenue stamps. No separate paper is attached, loosely or otherwise, to the face of that stamp. Upon the back of the body of the government) stamp, attached to its outside edges, is a slip of red blank paper, of less width than the stamp. When the stamp is pasted upon the barrel, that portion of it immediately over the red slip does not adhere to the barrel. It is protected from the paste on the barrel by the intervening red slip, so that when the portion thus protected is cut or torn oat for preservation, or for any other purpose, the slip underneath, with the remain- ing portion of the stamp, adheres to the barrel. An essential characteristic of plaintift''s s'tamp is a flap, originally a distinct piece of paper, but, when used, to be loosely attached to the face of the body of the stamp. A further characteristic is that upon the piece, thus loosely attached, must appear a portion of the vignette, design, or printed matter required to be engraved 1880.] Hall v. Law. 393 statement of the case. or ijrinted ou the fuce of revenue stamps. The government stamp has no such characteristics. It is, as we have said, one continuous paper, containing upon it the required printed mat- ter, with no flap loosely attached to its face which may be sub- sequently torn oK Neither the red slip of unprinted paper across the back of the government stamp, and which adheres to the barrel, nor that portion of the stamp which does not ad- here to the barrel, answers the same purposes as the flap of plaintiff's stamp. The present claim by the plaintift" is mani- festly broader than his claim and specifications as set out in tlie schedule to his letters-patent. We concur with the court below in the opinion that the whisky stamp is a modification of the inventor's idea that had not occurred to him when he drew his specifications, which were so limited in their terms as not to include the stamps used by the government. It is clearly not a mere colorable contrivance or imitation for evading that which had been done before. Decree affii'med. Affirmed. Catharine Hall, Maria H. Hall, and Hallib G. Beownlee V. William H. Law. 1. The recoi'd of a pai'titioii suit contains an order appointing commis- sioners to make partition, (whieli recited that it was proved to tlie sat- isfaction of tlie court tliat the required notice by pubUcation liad been given,) the report of the commissioners, and a contirmation of it, but no petition of tlie applicant for the partition. Such an omission does not render the proceeding void, but voidable only, if of any elfect at all, and the proceeding cannot be collaterally attacked. 2. A claim asserted by bill in chancery to the possession of real estate becomes stale at the expiration of the time which would bar eject- ment, courts of equity in such cases acting in analogy to the periods prescribed to tlie common-law courts. Appeal from the Circuit Court of the United States for the District of Indiana. 394 Hall v. Law. [Oct. Term, Opinion of the court. Charles E. Marsh and James C. Benny, for appellants. Azro Dyer, Asa Iglehart, and J. E. Iglehart, for appellee. Field, J. — 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 seized in fee. By the law of Indiana his real estate descended' to the eompla,inants. The premises in controversy are situated in the city of Evans- ville, in that part known as Lamasco. They constitute a part of a fractional section in the subdivision of the public lands in a township of the State., A small stream runs through the section, known as Pigeon Ci'eek, on the west of which four- sevenths of the section lie, and on the east three-sevenths. The premises in suit are on the west side of the creek. In 1831 the deceased, William P. Hall, became the owner of two undivided sevenths of the section. In 1833 proceedings were taken in the Circuit Court of the county in which the section lies, at the instance of the possessor of an undivided interest, for a partition of the land and an assignment in sev- eralty of the interests of the different owners. These proceed- ings resulted 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 proceedings are valid, the claim of the com- plainants, as the heirs and the widow of the deceased, is with- out foundation. He was divested of all interest in the prop- erty in controversy several 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 iirst 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 per- son, (notice of such application having been previously given by the party so applying for at least four weeks in some public 1880.] Hall v. Law. 395 Opinioa of the court; newspaper in the State,) to appoint three disinterested free- holders, 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 affirma- tion hefore some justice of the peace in said county honestly and faithfully to execute the trust reposed 'in them as commis- sioners aforesaid, shall proceed to make division of said estate, as directed by the court, among the owners and proprietors thereof, according to their 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 describ- ing the lots or portions allowed to each respective owner or proprietor, mentioning wliich 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." (Kev. Laws of lud., 1838, p. 426.) The record of the proceedings of the partition in this case consists of the order of the Circuit Court of September 12, 1832, appointing three commissioners to divide the section between the several proprietors, and to report to the court at the next term; their i-eport at the next term, in March, 1833, showing the partition made and the part assigned to each pro- prietor, the confirmation of the report at that term by the court, and its apportionment of the expenses of the partition among the proprietors. 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- tember 12,) make application for the appointment of commis- sioners to divide among the several proprietors thereof the fractional section. 396 Hall v. Lam^ [Oct. Term, Opinion of the court. The.report gives the boundaries of the section, and sets forth with proper description the portion assigned to each proprie- tor. It complies in its details with the requirements of the statute, and is accompanied with a plat of the, land showing the tracts assigned. The validity of this partition is assailed because no complaint or petition of the applicant for the partition appears in the rec- ord as the foundation of the proceedings, and without one it is contended that they were void. The statute does not in terms require the application 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 a.s necessary to authorize the court to act is, that there shonld 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, wliether it is sufficient in fbrni and sub- stance, and whether the requisite notice has been given as pre- scribed. 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, ac- companied with proper proof of previous notice of it. The order of the court appointing the commissionei's is a determi- nation 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. (Vorhees v. The Bank of the United States, 10 Pet., 449 ; Thompson r. Tolraie, 2 Id., 157 ; Comstock v. Crawford, 3 Wall., 396.) The cases of Lease v. Carr, 5 Blackf., 353, and Shaw v. Par- ker, 6 Ind., 345, cited by complainants, do not support their position. In the first case the Supreme Court of Indiana, hav- 1880.] Hall v. Law. 397 Opinion of the coart. ing 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, whoso 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 defect- ive, and the order made thereon was erroneous. But the court did not hold or intimate that the order and subsequent proceed- ings were, from the defective character of the petition, abso- lutely void. It was the common case of the reversal of pro- ceedings 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. (Hornor V. Doe, 1 Ind., 130; Doe v. Smith, Id., 459; Doe v. Harvey, 3 Id., 105; Babbitt Ashley v. Land, 14 Id., 223; Cox v. Mat- thews, 17 Id., 377; Evans v. Ashby, 22 Id., 17; Waltz v. Bar- roway, 25 Id., 383 ; Hawkins v. Hawkins', 28 Id., 71 ; Coru- paret v. Ilanna, 34 Id., 76; Gavin v. Graydon, 41 Id., 564; Burk V. Hill, 55 Id., 424; Hays v. Ford, 55 Id., 55; Hunter v. Burnsville Turnpike Company, 56 Id., 219; Wiley v. Pavey, 61 Id., 458.) The second case, Shaw v. Parker, also came be- fore the Supreme Court on a writ of error, and 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 ap- pointing the commissioners, or its order confirming their report. Thus confirmed, the report constituted, in the language of the statute, a partition of the lands described in it. The complainants, treating as invalid the partition proceed- ings, sue for the undivided two-sevenths of that portion of the fractional section lying west of Pigeon Creek; and assume in their bill of cotuplaint that the title of the defendant rests upon 398 Hall v. Law. [Oct. Term, Opinion of the court. a deed made under a decree in a suit in chancery, commenced against the deceased in 1836, three years after the alleged par- tition. It seems that a claim was made at that time that the two undivided sevenths of the fractional section was conveyed by their then owner, ISTathaniel 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 Dan- iel, for $45, and for the like sum had, by him and wife, been conveyed to the deceased, William P. Ilall ; 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 title and interest of the deceased to the complainants in that suit, of whom the defendant was one, by a commissioner appointed by the court. Tlie decree describes the two undi- vided sevenths as being the same tract assigned to the deceased in the partition proceedings. The father of the deceased was appointed the commissioner, and he executed the deed ordered. The complainants here assail the validitj' of this decree, as being rendered without seiwice upon the deceased, who was then a minor under ten j'ears of age, upon an answer filed by a guardian ad litem, who was not authorized to waive service on his'ward. It is not necessary to examine into the validity of the decree for this or other reasons. This deed purports to pass whatever title the deceased possessed in the lands con- veyed under the probate sale, whether it be considered as the two undivided sevenths of the whole fractional section, or the tract assigned to him on the partition. It gave at least color of title. Whenever an instrument, bj' 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. The deed of the commissioner in this case, with the return of the com- missioners in the partition proceedings, gave such color. Even 1880.] Hall v. Law. 399 Opinion of the court. should they be considered as invalid, possession under them for the period prescribed by statute bars the right of the true owners as effectively as possession under the most perfect title. It is an absolute defense to the action of ejectment. And a suit in equity, brought after that period, for the determination of the title and for possession of the property, will not be entertained, as it is founded on a stale claim. As the statutes of limitations in most States, and in Indiana among them, apply in terms only to legal remedies, courts of equity are considered as bound by them only in casesof concurrent juris- diction. In other cases they are said -to act only bj- analogy, and not in obedience to the statutes. Though the present case is in form a suit in equity, and as the bill asks for an injunc- tion it may be so treated, it is essentially a suit to recover the possession of the land. The complainants are out of posses- sion, and the defendant, or parties claiming under him, arc in possession. The determination in favor of the complainants' title is only preliminary to a decree for the surrender of pos- session. If not a concurrent remedy with the common -law action of ejectment, it so nearly resembles the latter as to justify the rule that in such cases the statute equally applies. The defendant and his associates in the deed of the commis- sioner, or persons claiming under them, have been in posses- sion of the entire fractional section for over fort}' j'eai's, and during all this period have exercised acts of ownership of almost every kind. They have laid out the land into lots, blocks, streets, and alleys, and have made extensive improve- ments either upon them or in connection with them. They have also sold parcels to a large number of persons, who have gone into possession, and still hold them, and have erected buildings thereon. The town of Laraasco, laid out by them upon the land, reached a population of over ten thousand in- habitants before it was annexed to the city of Evansville, of which it now forms a part. The statute of Indiana reserved to the deceased a right of action to recover the premises for iive years after he came of 400 McBridb v. Schurz. [Oct. Term, Opinion ot the court. age, and though he lived ten years after that period, within the vicinity of the property, and was cognizant of the posses- sion of the defendant and his associates, and of parties holding under them, of their claim of ownership and of their improve- ments, he made no attempt to disturb them in its possession, use, and enjoyment, or in the sale of portions of it. -The claim now set up bj" the complainants is a stale one, and, under the facts disclosed, without merit. The decree dismissing the bill must therefore be affirmed ; and it is so ordered. Affirmed. The United States, ex rel. Thomas McBride, v. Carl Schurz, Secretary op the Department of the Interior. Wlici-e ii writ of mandamus is issued against one of the Cabinet officers to compel poi-forniance of a dutj' vvliich he refused under a hona-fide mistake of law, with no intentional wrong, costs must neverthelessgo against him and in favor of the successful party. Error to the Supreme Court of the District of Columbia. Motion for costs against defendant. (See ante, p. 299.) Miller, J. — In this case a motion is made to modify the order that each party should pay his own costs, and give the plaintiff his costs against the defendant. Our lirst impression was, that as the defendant was sued in regard to the manner in which he had discharged certain offi- cial duties as Secretary of the Interior, in which no intentional wrong was charged or proven against him, it would be unjust to make hini pay the costs of the proceeding out of his own pocket. But a careful examination of the authorities leaves us no option but to follow the rule that the prevailing party shall recover of the unsuccessful one the legal costs which he has expended in obtaining his rights. 1880.] McBkide v. Schuuz. 401; Opinion of tlie court. In the case of Keudall v. The United States, 12 Peters, 629, which is the leading case establishing the right of a citizen to the use of the writ of mandamus to compel a pulilic officer to perform a duty merely ministerial, the relator recovered his costs. The duty in that case, as in the present, was one de- manded of a Cabinet officer, namel}', the Postmaster-General, and which he refused to perform. It is obvious that he thought he was right in refusing to do the act demanded of him, yet this court, as shown by the report of the case, rendered judg- ment for costs against him. In the case of The United States v. Boutwell, 17 Wall., 604, which was the case of a, writ of mandamus against Mr. Bout- well, as Secretary of the Treasury, and which the court held to be abated by his retirement from office, it was said: "It is the personal default of the defendant that warrants the impe- tratiou of the writ; and if a peremptory writ of mandamus be awarded, the costs must fall upon the defendant."' And it is argued that, as it would be unjust to make the successor in office of the delinquent Secretary pay the cost of defending the action of his predecessor, the writ must of necessity abate. We cannot, in the face of these cases, refuse the order for costs, however much we naight wish it were otherwise. There may be a contingent or other fund of the department out of which these costs can be paid. If there is no such provision, Congress may provide for it or enact generally that, when the officers of the government are sued with reference to the man- ner in which they have performed, or failed to perform, their official duties, they should be relieved from expense of the suit if thej' have acted with good motives aud upon reasonable grounds; as, in revenue seizures and similar cases. The plaintiff must have judgment for his costs. Motion ghantkd. 26 402 George v. Tate. [Oct. Term, Opinion of the court. Moses B. George, William L. George, James B. George, AND John E. George, copartners under the firm -name OF M. B. George & Brothers, and J. W. L. Slavens v. Samuel W. Tate. 1. A tmnsfev of all rinlit and interest in a certain snit transfers also tiie tittachment bonds given in tliat suit. 2. Tiie only fraud tliat can be set up as a defense to a bond in a common- law action, Is fraud touching its execution, not fraud in its procure- ment. 3. A party who reaps the benefit obtained from giving a bond, is estopped from atlacliing its validity when sued on it. ■ Error to the Circuit Court of the United States for the Dis- trict of Kansas. L. C. Slavens and Nelson Cobb, for plaintiffs in error. A. H. Case and Joh?!. K. Cravens, for defendant in error. SwATNE, J. — The errors assigned in this case relate to three subjects : The admission in evidence by the court upon the trial below of the instrument dated November 1, 1872 ; The refusal by the court to permit evidence to be given of fraud by the defendant in error, in procuring from the plain- tiffs in error the bond upon which the judgment below was recovered ; And the instructions given by the court to the jury touching the set-off' claimed by the plaintiffs in error. These several topics will be separately considered. 1. The instrument referred to purports to be an assignment to Tate of the bond of the plaintiffs in error. It begins and proceeds: "I, William Greene, in consideration of the sum of $8,509 to me in hand paid by Samuel W. Tate, * * * do hereby assign to said Tate the within instrument, and all my interest in the covenants and agreements therein eoiitained; * * * and I hereby assign and convey to and for the benefit of said Tate all my right and interest in a certain suit now 1880.] G-EORGE V. Tate. 403 Opinion of the court.. pending, * * * wherein I, William Greene, and J. J. Myers are plaintiffs, and M. B. George & Brothers are defendants," &c. The testatum clause is : " Witness ray hand and seal this 1st day of November, A. D. 1872. Myers & Greene, by Will- iam Greene." It was in proof that the firm of Myers & Greene were largely indebted to Tate. He applied to Myers for payment. Myers said they had a claim against George & Brothers, then in suit. He requested Tate to " go up and see Billy Greene," and added, " he will let you have the claim against George & Brothers." Tate went to Greene, and Greene had the instrument in question drawn, and after its execution delivered it to Tate. Greene further agreed that the judgment in the pending suit should be assigned to Tate as soon as it was recovered. Tate subsequently saw Myers and showed him the assign- ment. He said it was " all right," and Tate thereupon gave up to him the notes of Myers & Greene to'the amount of the claim against George & Brothers. The bond was given to prevent the execution of a writ of attachment issued for the seizure of the property of George & Brothers to secure the payment of any judgment Myers & Greene might recover against them. It was conditioned for the payment of such judgment. Viewing the transaction in the light of this evidence, it cannot be doubted that it was the intention of both parties that the bond should be transferred to Tate, and we think that intent was made effectual. The difficulty, so far as there is any, has arisen from the unskillfulnessof the draftsman of the instrument. The assignment could have been made by one of the partners, and he could have made it by parol. (Jones V. Guaranty Co., 101 U. S. R., 631; Story on Part., sec. 101.) The signature of the firm-name shows that the instrument was intended to be the act of both partners, and eftect must be given to it accordingly. This can be done upon settled legal principles and analogies. If a promissory note be drawn, " I promise to pay," &c., and 404 George v. Tate. [Oct. Term, Opinion of the court. is signed by more than one person, it is the joint and several note of all who sign it. (Clark v. Blockstock, 3 Eng. C L., 159 ; Hunt, Adm'r, v. Adams, 6 Mass., 519 ; Same v. Same, 5 Id., 358.) If" one party only he named as obligor in the body of a bond, and others sign it also, all are bound. In no other way can any efiect be given to the signatures of those not so named. The intent is clear, and that is sufficient. (Parks v. Brinker- hoof, 2 Hill, (N. Y.,) 665 ; Perkins v. Goodman, 21 Barb. 8. C. R., 220.) A bond to B's executors, B being alive, is a bond to B. (Langdon v. Goole, 3 Levins, 22.) In Sympson v. Henderson, 22 Eng. C. L., 313, a written contract stipulated that a ship should be ready to take freight on board "forthivith." Parol evidence was admitted to show the surrounding circumstances when the contract was made. Lord Tenderden said: " The word forthwith in strictness means immediately, but it is plain this cannot be the construction to be affixed here. It was known that she required some repairs, at least to be coppered,, and some time must be allowed for that." I-Ie left it to the jury to say whether, under the circum- stances, the vessel had been made readj^ within a reasonable time. " Debt on an obligation to pay £7, by 2.9. a week until the £7 were paid, and if he failed of the payment of the 2s. at any of the days whereon it ought to be paid, the obligation to be void, or else to remain in full force. The defendant pleaded that he did not pay the 2s. on one of the days whereon it ought to be paid. The plaintiff demurred." *** "The court held that the condition should be taken distributively, by referring particu- lars to particulars, viz., that if he paid the £7 the obligation should be void, but if he failed of the paying of the 2s. at any of the days it should be in full force — to which the rest agreed — for the obligation shall not be of no effect if by any means it may be made good." (Vernon .v. Alsop, 1 Levins, 77.) It has been said by an eminent winter that " words are the 1880.] George v. Tate. 405 Opinion of the court. counters of the wise and the money of the unwise." Their office is to symholize ideas. The intent of the parties is the contract, and whenever that is ascertained, however inartiti- cially expressed, it is the duty of courts to give it effect. As between Myers & Greene and Tate, the title of Tate was good by estoppel. The consideration which passed from him to them made it so. A title to real estate thus acquired is effectual either for attack or defense in an action of ejectment. (Dickinson v. Colgrove, 106 TJ. S. Rep., 578.) The. court below committed no error in this connection. 2. Proof of fraudulent representations by Myers & Greene, beyond the recitals in the bond, to induce its execution by the plaintiff in error, was properly rejected. It is well settled that the only fraud permissible to be proved at law in these cases, is fraud touching the execution of the instrument; such as misreading, the suiToptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which the party did not intend to give. (Hatshorne et al. v. Day, 19 How., 211 ; Osterhout v. Hill et al, 3 Hill, 513 ■; Belden v. Davies, 2 Hall S. C. E., 466; Fran- chot V. Leach, 5 Cow., 506.) The remedy is by a direct pro- ceeding to avoid the instrument. (Irving v. Humphrey, 1 Hopkins, 284.) The evidence was properly rejected for another reason. Where a party reaps the benefit which the bond gives in snch cases, and is called upon to respond, he is not permitted to repudiate the obligation he has assumed. In a case not unlike this Judge Story said : " The question is not new, and I am entirely satisfied that where the claimant voluntarily accepts a delivery on bail, it is' an estoppel of his right to contest the securitj-. He accepts or not at his pleasure, and it would be grossly inequitable if he might lie bj' until the close of the cause and receive and use the property, and then by detecting an error in the bond set the whole judgment of the court at defiance." (The Brig Struggle, 1 Gallison, 406 Williams v. Beufet. [Oct. Term, Statement of the case. 477. See, also, Bigelow on Estoppel, p. 206 a.ndi-'post, and 2 Whart. Evidence, sec. 1039, and the authorities cited by each author.) 3. The instructions as to the se1>off or counter-claim were as favorable to the plaintiffs in error as they had a right to- ask. The jury, upon the evidence, found against them. With this result, there being no error of law involved, this court has nothing to do. 4. It is insisted that the court erred in instructing the jury that " an assignment of the claim in suit against George & Brothers, or an assignment of the judgment rendered thereon, would also transfer the bond sued upon in this action." In this there was no error. The instruction was in exact conformity to the law upon the subject. (Bowdoin v. Cole- man, 6 Duer, 182; Craig v. Barkis, 40 K Y., 181; Claffin v. Ostrom, 54 N. Y., 581 ; Patterson v. Hull, 9 Cow., 747 ; Den- triff «. Crittenden, 1 Thompson S. C. E., 143 ; Hosmer v. True, 19 Barb. S. C, 106.) All the assignments of error are without merit, and the judgment of the Circuit Court is affirmed. Affirmed. Chaklbs B. Williams and Jambs D. Arnbst, partners as Williams & Arnbst, v. Jason K Bruffy, administrator OF George Bruffy, deceased. 1. An oi'cler of the court o£ laisf i;esort of Virginia, refusing to grant a snpei-sedeas to a judgment of an inferior court, which under the prac- tice in tliat State is a final determination of tlie question of the right of review, is such .a judgment as to authorize review by this court. 2. Where tliis court lias once acquired jurisdiction over cases coming up from the courts of last resort of tlie different States, and those courts decline to obey its mandates, it may, in the enforcement of its judg- ments, act directly upon the inferior State courts. Petition of the plaintiffs in error that the court take pro- ceedings to render its judgment effectual. 1880.] Williams v. Beupft. 407 Opinion of the court. Enoch Toiien, for petition. No briefs tiled. Field, J. — The Court of Appeals of Virginia declines to enforce the mandate of this court issued in this case, and the petition of the plaintiffs in error is that this court will take such proceedings as will render its judgment effectual. The plaintiffs in error are citizens of the State of Pennsyl- vania, and in 1866 they instituted an action in the Circuit Court of Eockingham county, Virginia, against the adminis- trator of the estate of one George Brutfy, deceased, who, at the time of his death, was a citizen of Virginia, for the value of certain goods sold by them to him in March, 1861. The administrator appeared to the action and pleaded the general issue and certain special picas, the substance of which was, that Pennsylvania was one of the United States and that Virginia was one of the States which had formed a confed- eration known as the Confederate States; Ihat from some time in 1861 until some time in 1865 the Government of the United States was , at war with the Government of the Confederate States, and that by a law of the Confederate States debts to alien enemies were sequestered; that the intestate had paid over the amount claimed in this action to a receiver in those States appointed under that law, and was thus discharged from the debt to the plaintiffs. To these pleas the plaintiffs demurred, but the demurrers wore overruled. The case was then submitted to the court upon certain depositions and an agreed statement of facts. They established the -sale and delivery of the goods for which the action was brought, the residence of the plaintiffs in Pennsyl- vania, and of the deceased in Virginia during the war, the payment by the latter of the debt claimed to the sequestrator of the Confederate Government under a judgment of a Con- federate court. The Circuit Court of Eockingham county, therefore, gave judgment for the defendant, and the plaintiffs 4(}8 Williams v. Bruffy. [Oct. Term, Opinion of the court. applied to the Supreme Court of Appeals of the State for a writ of supersedeas to bring the ease before it for review. In the courts of other States a supersedeas is merely an auxiliary process designed to supersede the eiifoi-cement of the judgment of the court below brought up by writ of error for I'eview. But in Virginia it serves a different purpose. " There," says Eobiuson, in his treatise on the practice in the courts of that State, " the writ of error is never used as a means of re- moving the judgment of an inferior court before a superior tribunal, except in those cases in which security is dispensed with. In practice the supersedeas is a substitute for the writ of error in all cases in which it is designed that the judgment of the court below shall be sujyerseded." (Vol. I, p. 660 ; White V. Jones, 1 Wash., 118; Burwell v. Anderson, 2 Wash., 194; Winglield v. Crenshaw, 3 Hening & Munford, 251.) By the law of that State, when application is made to the Supreme Court of Appeals for a writ of supersedeas, the court looks into the record of the case, and only allows the writ when of opinion that the decision complained of ought to be reviewed. Its action upon the record is, in effect, a determi- nation whether or not it presents a sufficient question for the consideration of the court. If it deem the judgment of the court below "plainly right," and reject the application on that ground, and its order of rejection so state, no further appli- cation for the writ can be presented ; the judgment of the court below is thenceforth iri-eversible. So, in effect, its refusal of the writ on that ground is equivalent to an affirmance of the judgment, for the reason that the record discloses no error. In the present case the Supreme Court of Appeals denied the writ, stating in its order that it was of opinion that the judgment of the court of Rockingham county was "plainly right." To review this action of the Court of Appeals — this determhiation as to the character of the judgment rendered in the Circuit Court — a writ of error was prosecuted from this court. It was issued to the Court of Appeals, and was re- , turned, with a transcript of the record on file in the office of its 1880.] "Williams v. Bruffy. 409 Opinion of the court. clerk, properly certified, and the case was elaborately argued here by counsel. We came to the conclusion unanimously that the judgment of the Circuit Court of Rockingham county was erroneous, that the demurrers to the special pleas should have been sustained, and that the plaintiffs should have had judg- ment upon the agreed statement of facts for the amount of their claim, with interest from its maturity, deducting in the computation of time the period during which the war continued. We accordingly directed that the action of the Court of Ap- peals of Virginia in refusing a supersedeas of the judgment of the Circuit Court should be reversed, and that the cause should be remanded to it for further proceedings in accordance with our opinion. The judgment of this court was accordingly certi- fied to that court, and presented to it in April, 1879. In April of the present year that court declined to take action upon our mandate, for reasons embodied in its opinion, at the time en- tered in its records. That opinion is as follows : " Virginia. " In the Supreme Court of Appeals, held at the State court- house, in the city of Richmond, on Saturday, the 24th day of April, 1880. " Chai'les B. Williams and James D. Arnest, partners \ under the firm-name of Williams & Arnest, Pl'ffs, J Upon a mandate against ^''o™ ^^% ^n- Jason N^. BrnfiTy, administrator of George Bruffy, de- [ gf thg xj. S. ceased, Defendant. / " This court having maturely considered the mandate of the Supreme Court of the United States, is of opinion that, accord- ing to the true intent and meaning of said mandate, this court is required to grant a writ of error or supersedeas to the judg- ment of the Circuit Court of Rockingham county. " This court, at a former term held at Staunton, Virginia, had refused such writ in the same case, being of opinion that the ' said judgment is plainly right.'- By such refusal the said judgment of the Circuit Court of Rockingham had become irreversible and placed beyond the control and jurisdiction of this court. It was 410 Williams v. Bruffy. [Oct. Term, Opinion of the court. at one time a pending cause in this court. There is no mode by which the decision of an inferior court can be reversed here, except upon an appeal allowed or writ of error granted and duly perfected in conformity with the statutes made and pro- vided. If, therefore, the mandate of the Supreme Court of the United States shall be entered on the records of this court, it must be inoperative and of no eftect, unless this court shall now grant a writ of error, or writ of error and supersedeas, to the said judgment of the Circuit Court of Rockingham county. That judgment was rendered on the 18th of April, 1871. The seventeenth section of chapter 178, Code of 1873, provides that no process shall issue upon an appeal^ writ of error, or super- sedeas to or from a final judgment or deci'ee, if, when the rec- ord is delivered to the clerk of the appellate court, there shall have elapsed two years since the date of such final judgment, decree, or order ; but the appeal, writ of error, or supersedeas shall be dismissed whe'iiever it appears that two years have elapsed since the said date before the record is delivered to such clerk. So that, if the court should now grant the writ of error and supersedeas, no process could issue thereon ; and if such process should issue, the writ of error or supersedeas must hereafter be dismissed by the express mandate of the statute. It is fur- ther provided, except in certaiu enumerated cases, that a writ of error or supersedeas shall not take effect until bond is given by the petitioner in a penalty and with certain conditions pre- scribed ; and if two years elapse from the date of such final judgment or decree before such bond is given, the appeal, writ of error, or supersedeas shall be dismissed. (See sections 13 and 17, chapter 178, Code of 1873.) In the present case the record has not been delivered to the clerk of this court, nor has an}- such bond been given as is required of the petitioner, nor indeed can be. These consideration's are sufficient to show that no writ of error or supersedeas can now be granted, or, if granted, it must be dismissed, unless this court is authorized to disregard the plain letter of the statute under which it exer- cises its appellate jurisdiction. It may be further added, that 1880.] "Williams v. Brufpy. 411 Opinion of the court. when this court deems the decision of the inferior court plainly right, and rejects the application for appeal on that ground, no other appeal, writ of error, or supersedeas can afterwards be granted by this court in the said case. (See section 10, chap- ter 178, Code of 1873.) "For these reasons this court, with the highest respect and consideration for the Supreme Court of the United States, must dechue to take any further action with respect to the. mandate of said court. " This entry is made on the record book of this court in con^ formity with the request and at the suggestion of the counsel for the petitioners. "A copy.— Teste: Geo. K. Taylor, C. C." The petitioners accordingly pray that this court will take such action as may be proper and needful in the premises to give efficacy to its judgment. We do not understand that the Court of Appeals intends by its refusal to deny or question the appellate power of this tri- bunal in cases arising in the State court whei'e the validity of a statute of, or of an authority exercised under, the State is drawn in question, on the ground of its repugnancy to the Constitution and laws of the United States, and the decision is in favor of its validity. Its appellate jurisdiction over the judgments of the State courts in such cases, and other cases mentioned in the twenty-fitth section of the judiciary act of 1789, (re-enacted in the Revised Statutes,) passed beyond the region of discussion in this court more than half a century ago. As early as 1816, in the celebrated case of Martin v. Hunter's Lessee, this court, in an opinion of unanswerable reasoning from the general language of the Constitution, asserted its appellate jurisdiction over the State courts in the cases mentioned in the act. It also showed that the jurisdiction had been sustained in a great variety of cases, aud that the doctrine had been acqui- esced in by enlightened State courts without a judicial doubt being breathed until that case arose. No doctrine of this court rests upon more solid foundations, or is more fully valued and 413 Williams v. Bruffy. [Oct. Term, Opinion of the court. cherished, than that which sustains its appellate power over State courts where the Constitution, laws, and treaties of the United States are drawn in question, and their authority is denied or evaded, or where any right is asserted under a State law or authority in conflict with them. And in no class of cases could that jurisdiction be more properly invoked than when, by enactments of a revolutionary organization against the Government of the United States, the property or the rights of citizens of the loyal States are attempted to be de- stroyed or impaired because of their loyaltj' to the Union. The main reason assigned by the Court of Appeals for de- clining to act upon our mandate, as seen by its opinion, is the lapse of over two years from the date of the rendition of the judgment of the Circuit Court of Eockingham county and the delivery of the record to that court. The judgment was ren- dered on the 18th of April, 1871, and the petition for the supersedeas, with the record, was not presented to the court and delivered to its clerk until the 12th of September, 1874. The Court of Appeals, it is true, in its opinion states that the record has not been delivered to its clerk; but this is evidently an inadvertence, as the transcript before us shows that such record was filed with him on the day mentioned. The court also adds, as further reasons for its action, that a bond with a certain penalty and prescribed conditions was required to be given within like period before a supersedeas could take efiect, and that no such bond was given in the case; and, also, that when the Court of Appeals deems a decision of the inferior court plainly right, and rejects an application for an appeal ou that ground, no other appeal or supersedeas can afterwards be granted. These last two grounds do not impress us as having force, for a bond could not be required until the writ is allowed. And the ground of refusing the writ, that the decision in the inferior court was plainly right, being itself held to be unten- able, there could be no reason why the order of denial should 1880.] Williams i'. Brufft. 413 Opinion of the coi*t. not be reversed, aud an order granting the writ entered in its place, as in the case of reversals of other orders. As to the lapse of more than two years between the date of the judgment aud the delivery of the record to the clerk of the appellate court, it is sufficient to observe that the Court of Ap- peals gave no effect to that circumstance; aud we could not say it had no authority' after that time to look into the record of the inferior court. We could not say what facts may have existed which prevented the operation of the statute, or what proceedings may have been necessary, according to the practice of the court, to enable parties to avail themselves of the lapse of time. The court did not refuse to receive the petition of the plaintiffs in error on the ground that it was presented too late, nor did it afterwards dismiss the petition for that reason. It took jurisdiction of it so far as to examine the record of the judgment of the court below and to pass upon its character. In its judgment, entered in its records, it states that the peti- tion "having been maturely considered, and the transcript of the said judgment seen and inspected, the court, being of opinion that" said judgment is plainly right, doth deny the said supersedeas." That judgment, thus entered, is a final determination of the character of the judgment of the inferior court. Although in the form of denying the supersedeas, it is not essentially different in its character and effect from a judg- ment dismissing such writ after it had beeu once granted and the merits of the case heard. So long as it remains unreversed it will be authority to all the inferior courts of Virginia that the confiscation of debts due to loj'al citizens, under an act of the Confederate Government, enforced as a law of the State, was a valid proceeding. It is, therefore, the subject of review in this court. (The Richmond, &c., Kailroad Co. v. The Louisa liailroad Co., 13 How., 80.) It is enough for our jurisdiction over the case that there was a final judgment of the Court of Appeals, and our jurisdiction cannot be now ousted, after we have acted upon the case and passed upon its merits, by any suggestion that that court never took jurisdiction to look into 414 Williams v. Bkufpy. [Oct. Term, 0[)tnion of the court. the record of the inferior court and determine the character of its judgment; nor can we listen to any such suggestion in contradiction of the record of the case. In the elaborate argu- ment of counsel of the case before us, though several objections were urged to our jurisdiction, no intimation was made of the want of jurisdiction by the Court of Appeals. (Skillern's Ex- ecutors V. May's Executors, 6 Cranch, 267; ex-parte Story, 12 Peters, 339 ; and "Washington Bridge Co. v. Stewai't, 3 How., 413.) Whenever the highest court of a State by any form of decis- ion affirms or denies the validity of a judgment of an inferior court, over which it by law can exercise appellate authority, the jurisdiction of this court to review such decision, if it in- volve a Federal question, will, upon a proper proceeding, attach. It cdnnot make any difference whether, after an ex- amination of the record of the court below, such decision be expressed by refusing a writ of error or supersedeas, or by dis- missing a writ previously allowed. And when this court has once acquired jurisdiction, it may send its process, in the en- forcement of its judgment, to the appellate court of the State, or to the inferior court whose judgment is reversed. Had the Court of Appeals, after assuming jurisdiction so far as to ex- amine the record of the inferior court and pass upon its action, granted the supersedeas and rendered in the case the judg- ment which, in our opinion, should have been rendered, the judgment of the inferior court would have been reversed, and judgment ordered in favor of the plaintiffs in error. Having jurisdiction of the case, we can now direct that such reversal be made and such judgment be entered. But inasmuch as the Court of Appeails finds itself embar- rassed in its action upon our mandate by reason of the statute, to which no reference was made in its original decision, we will direct that the mandate bo recalled, and that final judgment be entered in this court reversing the judgment of the Circuit Court of Bockingham county, and awarding judgment to the plaintiffs for the amount appearing from the record' and the 1880.] Allen v. City of Louisiana. 415 Opinion of the court. agreed %tiitement of facts to be due to them on their claim, with interest from its maturity, deducting, in the computation of time, the period of the war; the judgment to be paid by the defendant, as administrator, out of the estate of the deceased George Brufiy, in hko manner as other claims established against his estate ; and it is so ordered. Reversed. John A. Allen, administrator op the estate of Charles J*. Lund, deceased, v. The City of Louisiana. Tlie subscription of the city of Louisiana to certain i-ailroacl stock lield nnaiitliofizecl by any legislative act and ultra vires, and the bonds issued in payment of the same lield void. Error to the Circuit Court of the United States for the Eastern District of Missouri. Glover ^ Shepley, for plaintift' in error. James 0. Broadhead, for defendant in error. Waite, C. J. — Article 10, section 14, of the Constitution of Missouri, adopted in 1865, is as follows: "The General As- sembly shall not authorize any county, city, or town to become a stockholder in or to loan its credit to any company, associa- tion, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto." The charter of the city of Louisiana, approved March 12, 1870, contained the following sections as article 3, sections 8 and 9, and article 7, section 14: "Art. 3, Sec. 8. The bonded or funded debt of the city for all purposes, including $100,000 subscribed or to be lawfully subscribed to railroads terminating at or passing through the city of Louisiana, shall not exceed the sum of $200,000: Pro- 416 Allen v. City op Louisiana. [Oct. Term, Opinion of the courf. vided, however. That said debt may be increased to a swm not exceeding $250,000 in all, by ordinance or ordinances properly passed and submitted to an election, under the authority of the city council, of all resident tax-payers of the city; that is to say, of all adult persons who shall have been assessed and actually paid a tax on real or personal property for the year or the year previous to the year in which such election shall be held; and at such election the judges holding the same shall require j^roof of the payment of such tax before recoi'ding the vote of any person oftering to vote at such election, and a majority of all the legal votes cast at said election shall determine the question for or against such ordinance. "Seo. 9. The city shall have power to subscribe for stock in any incorporated railroad companj- connecting with the city of Louisiana, or give a bonus to any institution of learning, by submitting an ordinance making the appropriation or author- izing the issue of bonds for any such purpose to a vote of the qualified voters (as provided by section 8) of the city, at any general election held in the city, or any special election ex- pressly ordered, at which election a majority of the votes east shall be for such ordinance." "Art. 7, Sec. 14. The city shall not at any time become a subscriber for any stock in any corporation, except as author- ized by this or some other act of the General Assembly; but said city may by ordinance appropriate money to aid in opening any road leading to the city, or in other improvements within the city, or in building any bridge within two miles of the city, and which may be deemed of general public benefit to the inhabitants of the city: Provided, however. That no appro- priation shall be made for any improvement beyond the limits of the city, unless a vote be taken on such appropriation at some general election or special election ordered for that pur- pose, and a majority of all votes polled be cast in favor of that appropriation." Under the authority of these provisions of the charter, the 1880.] Allen v. City of Louisiana. 417 Opinion of tlio court. city council, on the 10th of August, 1871, passed an ordinance, section 1 of wliich is as follows: "Sec. 1. There shall be an election held at the several places in each ward for the holding general election in the city of Louisiana on the 5th day of September, 1871, on the proposi- tion to take stock in the Clarksville and Western Railroad Company, or in the Quincy, Alton and St. Louis Railroad Company: Providsd, The said Quincy, Alton and St. Louis Railroad Company shall cross the Mississippi River and make its southern terminus within the corporate limits of the said city of Louisiana at such place as may be agreed upon by the offi- cers of said Quincy, Alton and St. Louis Company and the city council of Louisiana, to an amount not to exceed fifty thousand dollars ($50,000); said election to be conducted by the same judges and at the same places as the general election held on the Tuesday after the first Monday in March, 1871, and the returns to be made and certified to the city council in the same manner as that of any general election." Other sections provided for the payment of the subscription in bonds and for the form of the ballots. Section 4 provided that if, on counting the votes, it appeared that two-thirds of the legal votes cast at the election were in favor of the proposi- tion, a subscription might be made, and section 5 made pro- vision for a registration of the voters prior to the day of the election. The Quincy, Alton and St. Louis Railroad Company was an Illinois corporation, one terminus of whose road was on the bank of the Mississippi River, in the State of Illinois, oppo- site the city of Louisiana. Before the day of election a full i-egistration of the voters of the city was made, from which it appeared that there were 356 qualified voters then in the city. On the day appointed an election was held, at which there were 336 votes cast in favor of the subscription and 10 against it. Afterwards the stock was subscribed to the Quincy, Alton and St. Louis Company, and the company having complied with the terras and conditions of the subscription, the bonds 27 418 Allen v. City of Louisiana. [Oct. Term, Opinion of the court. were delivered by the city, amounting in the aggregate to $50,000, in the following form : " Know all men by these presents, that the city of Louisiana, in the State of Missouri, is indebted to , or bearer, in the sum of $1,000, lawful money of the United States of Amer- ica, which the said city of Louisiana promises to pay on the 2d day of October, 1891, at the treasurer's office, in the city of Louisiana, Missouri, with interest thereon at the rate of 8 per cent, per annum, payable annually on 1st day of January m each year, upon presentation and surrender of the annexed coupons as they severally become due and payable. This bond is issued by the city of Louisiana, under authority of the General Assembly of the State of Missouri, entitled 'An act to amend and reduce into one the several acts incorporating the city of Louisiana,' approved March 25, 1870; also an ordinance of the city council of the city of Louisiana, No. 628, passed September 26, 1870. " In witness whereof, the city of Louisiana has caused its seal to be hereto affixed, and the same to be signed by the mayor and countersigned by the clerk of the city council, at the city of Louisiana, Missouri, the 4th day of November, in the year of our Lord eighteen hundred and sevent^'-one. [ SEAL.] " Wm. Paeker, \ " Mayor of City of Louisiana. " Countersigned : " N. H. Griffith, " Clerk City Council.'''' The city paid without objection the first installment of inter- est as it fell due, but since that time has been in default. This suit was brought on seventy-nine coupons, past due, of which the plaintiff's intestate was a purchaser for value before niatur- it}', without notice. Upon this state of facts the Circuit Court gave judgment for the defendant, and to reverse that judgment this writ of error has been brought. ' The question which lies at the foundation of this ease is whether the Legislature of Missouri has, by a valid law, author- 1880.] Allen i'. City op Louisiana. 419 Opinion of the court. ized the city of Louisiana to subscribe to the capital stock of the Quincj-, Alton and St. Louis Raih'oad Company, an Illi- nois corpoi'ation. It is conceded that if there was no such law the judgment below was right. It is also conceded that Budi a subscription could not be made on the vote of a majority of the tax-payers of the city, because the General Assembly is pro- hibited by the Constitution from granting authority for that purpose except upon the assent of two-thirds the qualified vot- ers. Neither is it contended that the qualified voters, whose vote is to be taken under section 9 of the charter, are not the resident tax-payers specified in section 8 ; but the claim is that, if this unconstitutional provision is disregarded, enough can be found in the other parts of the sections to authorize the sub- scription. It is an eli^mentary principle that the same statute may be in part constitutional and in part unconstitutional, and that, if the parts are wholly independent of each other, that which is constitutional may stand, while that which is unconstitutional will be rejected. "But," as was said by Chief Justice Shaw, in Warren v. Mayor of Charleston; 2 Gray, 99, " if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the Legislature intended them as a whole, and that, if all could not be carried into effect, the Leg- islature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." The point to be determined in all such cases is whether the unconstitutional provisions are so connected with the general scope of the law as to make it impossible to give effect to what appears to have been the intent of the Legislature, if those provisions are stricken out. It is contended that, with a proper application of these prin- ciples, sufficient authority for this subscription can be found either in sections 8 or 9, article 3, or section 14, article 7. 1. As to section 8 ; This section provides, in substance, that 420 Allen v. City of Louisiana. [Opt. Term, Opinion of the court. the bonded or funded debt of the city, including $100,000 ru1>- scribed or lawfully to be subscribed to railroads terminating at or passing through the city, shall not exceed $200,000 without the assent of a majority of the resident tax-payers, but that with the assent of the tax-payers, given in the way pointed out, the debt may be increased to $250,000. It authorizes no subscription to railroad corporations, but recognizes the fact that under certain circumstances such a subscription may be lawfully made, and limits the permanent debt to be incurred for that and other purposes to $200,000 without the consent of the tax-payers, and to $250,000 with their consent. In other words, it is a charter provision against incurring a bond- ed debt beyond the prescribed amounts. That is the whole scope and eti'ect of this section. 2. As to section 9: This, when taken in connection with the requirements of the Constitution, cannot be construed as being, of itself, a grant of authority to subscribe, because it makes a subscription dependent on a majority vote of the resident tax- payers, while the Constitution requires the assent of two-thirds of the qualified voters. In. the construction of a statute every word i-s, if possible, to be given some effect. Nothing is to be stricken out if it can be avoided. It is not to be presumed that the Legislature intended any part to be without meaning. In the light of these maxims of interpretation, the substantial object of this section evidently was to limit the power to sub- scribe to the stock of railroad companies coimecting with the city more than had been done by the Constitution. Under the Constitution, a two-thirds vote of the qualified voters, taken under the authority of law, would be enough ; but under the charter, the two-thirds vote of the qualified voters required by the Constitution and a majority vote of the tax-payers were both necessary. The charter limitation could be repealed. It was in the nature of a legislative regulatiqn, which could be dispensed with whenever, in authorizing a particular subscrip- tion or otherwise, the Legislature should so declare. As it stands, it operates as a charter protection to the tax-payers 1880.] Ali-en r. City of Louisiana. 421 Opinion of the court. against the imposition of burdens of this kind by the qualified voters alone, but of itself it authorizes no subscription. Had there been no constitutional restriction put on the Leg- islature in matters of this kind, the language employed might have been susceptible of a different meaning; hut with the Constitution as it is, the entire provision as to the majority vote of the tax-payers — to which the Legislature evidently attached special importance — must be stricken out, and that of the Constitution as to the two-thirds vote of the qualified voters inserted by implication, before it can be said that what now appears to be a limitation was, in fact, a positive grant of power. We are clearly of the opinion that this cannot be done consistently with the evident purpose of the law, and, as a consequence, that no authority for the subscription can be found in this section of the charter. As to section 14, article 7 : This cleai'ly gives no affirmative power to subscribe. It is, in effect, nothing more than a pro- vision that no subscription shall be made unless expressly authorized by law, which is but an enactment of what had before become a well-established rule of decision. It author- ized appropriations of monej' for the purposes specified, on a majority vote of the qualified voters at a general or special election, and it recognized the fact, which is no longer dis- puted, that the Legislature might authorize the city, in a proper way, to become a subscriber to stock in some corporations. This is the full extent of the operation of that section. These, so far as we can discover from the record, were the only provisions of law relied on in the court below to sustain ihe subscription for the payment of which the bonds now in question were issued. In this court, however, it is contended that power to make the subscription may be found in section 17, chapter 63, of the General Statutes of Missouri, of 1865, taken in connection with an amendment to that chapter, adopted in 1870, (Session Acts, pp. 89, 90,) as additional sec- tion 52. Upon this point it is sufficient to say that the Quincy, Alton and St. Louis Company was an lUinois corporation, and 422 Weitzel v. Rabb. [Oct. Term, Syllabus. under section 17 authority was only given to subscribe to the stock of companies organized under the laws of Missouri. By the amendment of 1870, section 52, under certain circum- stances raih'oad companies of other States might extend their roads into Missouri, "and for that purpose * * * posr sess and exercise all the rights, powers, and privileges confer- red by the general laws of this State [Missouri] upon railroad corpoi'ations organized thereunder"; but this did not make them corporations "organized under the laws of Missouri." If, as is argued, the foreign corporation got, as one of the priv- ileges conferred on it by this law, the right to receive munici- pal subscriptions, it was of no practical value as a privilege until the power to subscribe was in some form given to the municipalities. I( is of no importance that two-thirds of the qualified voters of the city gave their assent to the subscription at the election which was called. It has been uniformly held that until the Legislature authorizes an election, a vote of the people cannot be taken which will bind the municipality, or confer upon the municipal authorities the power to make such a subscription. The legislative authority to obtain the popular assent is as essential to the validity of the election as it is to the si;ibscrip- tion. Judgment affirmed. Affirmed. Lewis Weitzel, collectok of internal revenue, v. Ger- hard H. Eabe; The Same v. Augustus Kayser, George* Gerke, William Kessler, Peter Kessler, Adolph Knei- MULLER, and GeORGE KaRHOLF ; AND TlIE SaME V. EoBERT W. Caldwell. When a distiller applies, under section 3311 of the U. S. Revised Statutes, for a reduction of capacity while the distillery is in operation, and the reduction is made graduallj', the distiller cannot be assessed for the quantity remaining on hand in masli over and above tlic amounts 1880.] Weitzel v. Eabb. 423 Statemeat of the case. allowed on the ftrst clays of 'the reduction but which is under the amoinit of the original capacity before reduction. The reduction dates from the last day occupied in niaking it. Errou to the Circuit Court of the United States for the Southern District of Ohio. Previous to May 2, 1876, the capacity of Mr. Rabe's distill- ery was fixed by the survey at 415.96 bushels of grain each twenty-four hours, the fermenting jneriod being forty-eight hours. On that day he went to the collector's oflice and noti- fied the deputy in charge of distilleries that he desired to re- duce his capacity to 207.45 by closing six fermenting tubs then in use ; he then, by agent, signed three blank notices given him by said deputy, and left them with the deputy, who filled them up and filed them. The notices when filed stated that Mr. Kabe desired to reduce his capacity from 415.96 to 346.29 bushels, by closing tubs Nos. 3 and 8, having a capac- ity of 9,406 gallons, on and after May 2, 1876 ; from 346.29 to 276.03 bushels, by closing tubs Nos. 12 and 15, capacity 9,485 gallons, on and after May 3 ; and from 276.03 to 207.45 bushels, by closing tubs Nos. 10 and 14, capacity 9,258 gal- lons, on and after May 4, 1876. Said deputy thereupon closed and sealed the six tubs successively on the 2d, 3d, and 4th, in accordance with said notices. On the 2d and 3d days of May, 1876, Mr. Rabe mashed but 207.45 bushels of grain, but distilled the beer from 415.96 bushels of grain mashed April 30 and May 1. On each remaining day of May the exact amount of grain fixed by the capacity was used. Upon receipt of the distiller's return for the month, the Commissioner of Internal Revenue made an assessment against him for an ex- cess of grain used on the 2d and 3d days of May over and above the reduced capacity specified in the notices, viz., in ex- cess of 346.29 liushels on the 2d and of 276.03 bushels on the 3d. This assessment was paid to Mr. Weitzel, the collector of internal revenue, and this suit brought for its recovery. The mode of reducing capacity by giving three notices, clos- ing tubs on successive days after they had remained empty 424 Weitzkl v. Rabe. [Oct. Term, Opinion of the court. twenty-four hours, was the uniform practice in the first col- lection district of Ohio, urutil changed in accordance with cir- cular No. 38 from the Commissioner of Internal Revenue, dated February 20, 1877 ; and the distiller desiring to reduce capacity was required by the collector to give the three no- tices. Mr. Eabe reported all spirits produced by' him during May, 1876, and paid tax thereon according to law. The instructions given and refused by the court upon this state of facts were — The instruction granted: "1. The conclusion to which I have arrived is, that the producing capacity of this distillery was not in law reduced until the 4th day of May ; that it con- tinued for the 2d . and 3d days of May to be 415.96 bushels ; and this being the amount of grain in fact used, there was no use of grain by the distiller in excess of the capacity of his distillery. The assessment was therefore illegal." The instruction refused: "2. When the distiller gave no- tice, in the form prescribed, that he desired to reduce capacity on and after a day specified in the notice, by closing a desig- nated fermenting tub, and such, tub was thereupon closed by the deputy collector in accordance with the notice, the legal eftect was to reduce the capacity of the distillery on and after that day ; and if the distiller on or after that day used grain in excess of the reduced capacity, although mashed before the reduction, the Commissioner was authorized by law to make an assessment for the excess, and the distiller cannot recover the same from the collector." Edwin B. Smith, Assistant Attorney -Gtneral, for plaintiff in error. No brief filed for defendant in error. Waite, C. J. — We think the court below was right in hold- ing that the producing capacity of the distillery was not in law reduced so as to make the distiller Uable foi' material used in excess of the reduced capacity until May 4. The original 1880.] Weitzel v. Rabe. 425 Opinion of the court. capacity, as estimated according to law, was 416.90 bushels of grain each twenty-four hours ; but the spirits could not be properly developed and separated until the expiration of forty- eight hours from the time the grain was put into the mash — that being the fermenting period allowed. According to the rulings of the Commissioner of Internal Revenue, grain has been used when the spirits have been properly developed and separated by distillation ; and in determining, under the re- quirements of section 3309 of the Revised Statutes, whether a distiller has accounted for all grain used by him in a mouth, the practice has been to take the quantity of mash and beer on hand at the beginning of the month, add to it the quantity put into mash during the month, and from the total deduct the quantity of mash and beer on hand at the end of the month. The remainder is the quantity used. Under the law the distiller must pay a tax equal to eighty per cent, of his estimated producing capacity, whether the spirits are actually produced or not. Consequently, to save himself trom taxation beyond his actual production, he must keep his distillery run- ning all the time within twenty per cent, of its full capacity. The application in this case, under section 3311 of tlie Re- vised Statutes, for a reduction of capacit}', was made when the distillery was in full operation, and when mash or beer equal to the full producing capacity was in the process of distilla- tion. The spirits could not be properly developed and sepa- rated from this material until the expiration of forty-eight hours from that time. This both the government officers and the distiller knew. Under these circumstances the applica- tion for the reduction of capacity was evidently made with the intention of having the reduced capacity date from the time when it could go into effect without subjecting the distill- er to a tax on excess of material used, by reason of the farther distillation of what was then in mash. To accomplish this pur- pose, a practice had grown up in the collection district where this distillery was situated to give three notices and close tubs on successive daj's after they had remained empty twenty-four 426 Weitzbl v. Kayser. [Oct. Term, Opinion of the court. hours. Forms seem to have been prepared by the revenue officers for such notices ; and when the application for reduc- tion was made in this case, the notices were signed in blank and left with the collector, to be tilled up by him in a way that would, according to the practice which prevailed, bring about the reduction at the proper time. The reduction was made. The distiller reported his actual product and paid the taxes thereon in full. The amount now sued for was evidently paid on account of a constructive and not an actual use of material in excess of capacity. There is no preteuse of bad faith. The distiller did what was required of him to get a reduction of capacity while his distillery was in operation. Under such circumstances he was entitled to have the capacity estimated while the reduction was going on, in such a way as not to charge him with material in mash when the change was applied for, as material used in excess of capacity. Judgment affirmed. Affiemed. Lewis Weitzel, &c., v. Augustus Kayser, George Gerke, William Kessler, Peter Kessler, Adolph Kneimuller, AND George Karholf ; and Lewis Weitzel, &c., v. Kob- ERX W. Caldwell. These cases are in all material respects like that of Weitzel V. Eabe, just decided. The judgments are affirmed upon the authority of that case. 1880.] Wadswortii v. Eau Claire County. 427 Opinion of the court. William B. Wadsworth v. The Board of Supervisors of Eau Claire County. The principles aniiouncecl in Aspiiivvall v. Commissionei-s, 22 How., 364, reafBrmed. Appeal from the Circuit Court of the United States for the "Western District of Wisconsin. M. H. Carpenter and L. S. Dixon, for appellant. Bartlett ^ Hai/den, for appellees. Harlan, J. — By an act of the Legislature of Wisconsin, approved April 1, 1864, the legal voters of certain counties, among which are the counties of Eau Claire and St. Croix, were authorized to vote upon the subject of municipal aid in the con- struction of a railroad from Tomah to Lake St. Croix, by the Tomah and Lake St. Croix Railroad Company, subsequently called the West Wisconsin Railway Company. The act declared that " if a majority of the ballots cast in any of said counties be for railroad aid, the county board of supervisors of said counties shall have power, by resolution, to cause to be issued bonds of the denomination of one hundred to one thousand dollars each, to an amount not exceeding $50,000 for each of said counties, payable thirty years after the date thereof, with interest at the rate of seven per centum, payable semi-annually in the cit^- of New York, at such place as the treasurer of the State shall designate." The board of supervisors of each of the counties voting such aid were rer quired to " annually cause to be levied and collected, as other State and county taxes are collected, a sum of money sufficient to pay the interest accruing and existing by reason of the bonds which either of said counties inay issue, at the rate afore- said, and such further amount to defray any expense attending the paj-ment of such interest." The act further provided that " the said bonds, when author- 428 "Wadswoeth v. Eau Claiiie County. [Oct. Term, Opinion of the court. ized to be issued as aforesaid, shall be held by the count}' board of supervisors of each of said counties', and the same, or the avails thereof, shall be expended in the counties which issue the same, (provided the railroad passes through the said county,) in the grading of said railroad, or in the purchase of ties therefor; and the said bonds shall be delivered to the said railroad com- pany when the board of supervisors of each of said counties are satistied that the same will be applied for such purpose." On the 5th of November, 1867, an election was held in the county of Eau Claire, at which a majority of votes were cast in favor of aid, to the extent of $50,000, to the Tomah and Lake St. Croix Railroad Company. The road was constructed through the county prior to March 10, 1870, but it does not appear when the work of such construction was commenced. The entire I'oad was, however, fully constructed on or about December 1, 1871, since which date it has been operated as a railway. On and prior to March 15, 1870, the company demanded of the board of supervisors for the county of Eau Claire, county bonds to the amount of $50,000, and payable as required by the statute. The board refused to comply with that demand, and made the following record of such refusal, viz.: " The county board of supervisoi's of Eau Claire county met at the office of the clerk, all members present. The board took up the subject of issuing the bonds of the county to the West "Wisconsin Kailroad Company as voted in 1867,~aud expressed themselves as willing to issue the bonds of the county if they could be paid by a tax, as understood at the time the vote was taken ; but as our highest courts have decided that it is illegal to levy and collect a tax to pay such bonds, they refuse to issue them. They are unwilling to issue the bonds of the county which cannot be paid, but must be repudiated in the end, for reason that it would be unjust to the bondholder and a dis- grace to the county, and requested the county board of super- visors of said county to cause said bonds to be issued and deliv- 1880.] Wadswortii v. Eau Claire County. 429 Opinion of the court. ered to the said compan}' as required by law and the aforesaid vote of the electors of said county." There i§ some confusion in the language employed in this minute of the proceedings of the county board, but there can be no doubt as to the grounds upon which it refused to execute and deliver the bonds. By an act approved March 25, 1872, so much of the act of April 1, 1884, as authorized the counties of St. Croix and Eau Claire to issue honds in aid of the construction of a railroad from Tomah to Lake St. Croix was repealed. On or about Septeruber 1, 1875, the railroad company, for a valuable consideration, assigned and transferred to Wads- worth all and every cause of action, in law or equity, it then had, or to which it was entitled, against the county of Eau Claire, by reason of the failure and refusal of its board of supervisors to issue and deliver county bonds in accordance with the vote of the people. The object of the present suit in equity by Wadsworth, as assignee of the compauj', is to compel the execution and deliv- ery to him of such bonds. To the bill filed a demurrer was sustained, and judgment was entered for the defendants. In the view which the court takes of this case, it may be assumed that due notice was given of the election held on the 5th I^oveniher, 1867. The main question then presented is, whether the county of Eau Claire ever came under a legal obligation to execute and deliver to the railroad company county bonds to aid in the con- struction of the road from Tomah to Lake St. Croix ? The decision of that question, it seems to thq court, is controlled by the principles announced in Aspinwall, &c., v. Commissioners, &c., 22 How., 364. That case involved the validity of certain county bonds which were in the hands of bona-fide holders for value, having been issued by the board of commissioners for Daviess county, Indiana, in payment of a subscription made in behalf of the county to the capital stock of an incorporated rail- road company. The subscription was made under the san:,'tiou 430 "Wadsworth v. Eau Claire County. [Oct. Terra, Opinion of the court. of" a populai' vote and in conformity with the charter of the rail- road company, which made it the duty of the commissioners to subscribe for the stock and issue bonds in payment thereof, whenever a majority of quahfied voters of the county, at an election held for that purpose, should declare in favor of such subscription. It, however, appeared that after the people had voted in favor of the subscription, but before any subscription was in fact made, a new Constitution for Indiana went into operation, containing, among others, the provision that " no county shall subscribe for stock in any incorporated company, nnless the same be paid for at the time of such subscription ; nor shall any county loan its credit to any incorporated company, nor borrow money for the purpose of taking stock in any such company." It was argued in that case, that as the statute under which the election vVas held made it the duty of the commissioners to subscribe for the stock and issue county bonds in payment thereof, the right of the railroad company to receive the bonds became complete and perfect when a majority of legal voters declared in favor of the subscription, and that such right was not, and, consistentlj' with the contract clause of the national Constitution, could not, be affected by any subsequent changes in the organic law of the State. To that position this court was unable to give its assent. The reluctance expressed in its opinion is not to be construed as implying doubt as to the cor- rectness of the legal conclusions there reached, but only as re- ferring to the fact that the bonds in suit were in the hands of those who, for aught that appeared, had purchased them in the belief that they were valid obligations of the county. We held, in that case, that the popular vote did not itself create a vested right in the railroad company to the bonds, and that a subscrip- tion was necessary to create a contract binding the county to issue bonds in payment of the stock and binding the company to issue stock for the bonds. " Until the subscription is made," said Mr. Justice Nelson, speaking for the whole court, " the cbrltract is unexecuted and obligatory upon neither party." 1880.] Wadswortii v. Eau Claire County. 431 Opinion of the court. Hence the new State Constitution was held to govern the case, and from the time of its adoption to have withdrawn from the county commissioners all authority to make subscriptions to the stock of incorporated companies, except in the manner and under the circumstances prescribed by that instrument. Applying the doctrines announced in Aspinwall, &c., v. Com- missioners, &c., to the i^resent case, it is clear that there was no binding agreement or contract between the railroad com- pany and the county of Eau Cl^ire'by which the latter became legally bound, through its board of supervisors, to execute and deliver bonds to aid in the construction of the road from Toraah to Lake St. Croix. The act of April 1, 1864, neither in express words nor by necessary implication made it imperative upon the board of supervisors to issue bonds in pursuance of the pop- ular vote. The act was an enabling one, and its legal cfi'ect was to invest the board with power to supplement the expressed will of the people by an issue of bonds. We find nothing in its provisions justifying the conclusion that the popular vote was to be taken as an absolute direction that the supervisors should issue the bonds at all events, and without regard to the circumstances intervening after the people had voted in fovor of county aid to the enterprise in question. It will be observed that the act of 1864 did not contemplate a subscription of slock upon the part of the county, but simply ti donation of bonds to aid in the construction of the road. We can understand whj' the Legislature might invest the con- stituted authorities of the county with lai'ge discretion as to the exercise of a power to issue bonds bj' way merely of dona- tion to aid in the construction of a railroad. But whether sound policy indicated such a course, it is not material to in- quire, since our duty is to ascertain the legislative intent, and, if possible and consistent with the law, to give it effect accord- ing to the reasonable interpretation of the words employed to express that irltent. As the statute only declared that the supervisors should have power by resolution to cause bonds to be issued when the people 432 Wads WORTH v. Eau Claike County. [Oct. Term, Opinion of the court. voted in favor of railroad aid, we are not at liberty to say that the Legislature meant such vote to be a positive command to exercise that power without regard to the circumstances aris- ing after the expression of the popular will. But if we should be mistaken iu this construction of the statute — if the statute had, in terms, made it the duty of the supervisors to issue bonds to the extent indicated by the pop- ular vote, we should feel bound, upon the authority of Aspin- wall, &c., V. Commissioners, &c., to hold that the Legislature could, at any time before the bonds were in fact issued', or be- fore the county came under a legal obligation to issue them, repeal, as it did, the statute conferring the power to issue, and thereby withdraw from the supervisors all authority in the premises. The election at which the people gave their sanc- tion to railroad aid had, as we have seen, no other effect than to confer power upon the supervisors to issue bonds, and did not place them under any legal obligation to the railroad com- pany to exercise the power granted. The railroad company had not, prior to the passage of the act of 1872, acquired any perfect or vested right to the donation. The repealing statute of 1864 was, under the circumstances, a total abrogation or obliteration of the law repealed, as much so as if the latter had never existed. We have not overlooked the averments in the bill that the company constructed its road through Eau Claire county at a cost, in grading and in the purchase of ties, exceeding the sum of 150,000 ; that such woi'k was done and such money ex- pended upon the faith of the aid voted, and with "the full un- derstanding and belief" that the bonds would be issued and delivered to the company, and that the company would not have built the road and expended the money except in reliance upon an issue of the bonds as authorized by the statute. With whom such understanding was had, and upon what special facts such belief was based, does not appear from any specific allegations in the bill. The seventh section of the act of 1864 directed that the bonds, "when authorized to be issued 1880.] Wadsworth v. Eau Claibe County. 433 Opinion of the court. as aforesaid" — that is, when issued under the power conferred by popular election — should be held by the supervisors, and not delivered until they should be satisfied that the proceeds would be expended in the grading of the road in the county issuing them, or in the purchase of ties therefor. Had the bonds been in fact executed before the act of 1872, but retained by the supervisors under an agreement for their delivery when the purposes indicated by the section just cited had been met, there might have been some ground for holding that the power given by the statute to issue the bonds had been finally and fully exercised by the supervisors, and that in such case the railroad company would have been entitled to enforce their delivery upon the completion of the road through the county, or after the expenditure of an equal amount, either in the grad- ing of the part of the road which lay in that county, or in the purchase of ties therefor. But we have seen that the bonds had not iu fact been executed when the power to issue and deliver them was withdrawn by the Legislature. The discre- tion conferred upon the supervisors had not then been exer- cised. If the company chose to enter upon the work of con- struction in the county before the supervisors had in fact elected to exert the power conferred by the statute, and with- out any agreement, upon sufficient consideration, binding the county to execute and deliver the bonds, their understanding, however induced, and their belief, upon whatever facts based, that the bonds would, at some future time, be issued and de- livered, could not trammel the power of the Legislature, or prevent it from withdrawing the authority conferred upon the supervisors in the act of 1864. Nor do we think it at all material, in the determination of this case, that the supervisors expressed upon their records a willingness to issue the bonds,- and that they were restrained from so doing by the circumstance that the Supreme Court of Wisconsin had judicially declared that the payment of the bonds, if issued, could not be enforced. The cases in that court to which, as we suppose, the supervisors referred were 28 434 The United States v. Moeris. [Oct. Term, Syllabas. Curtis V. Whipple, 24 "Wis., 850, and Wliitiiig v. The Sheboy- gan and Fond du Lac R. K. Co., &c., 25 Wis., 180; in the ibrraer of which, decided in 1869, it was held that the Legis- lature had no power to raise money, or to authorize it to be raised by taxation, for the purpose of donating it to a private educational institution ; and in the latter, decided in 1870, that no such power existed to make a donation in aid of the con- struction of a railroad owned, managed, and operated by a corporation in all respects private, except that in its behalf the power of eminent domain might be exercised, and except, also, that it was charged with certain public duties and was subject to certain public uses. Notwithstanding the reasons assigned by the supervisors for the non-issue of the bonds, the fact re- mained that they did not, prior to the repealing act of 1872, assume to impose any legal obligation upon the county, either by an actual issue of the bonds, or by an agreement to issue and deliver them upon the completion of the road through the county. Under this view of the case we need not consider the question, suggested by counsel, as to how far the rights of parties are to be controlled by the decisions of the Supreme Court of the State, rendered after the election of 1867, upon the subject of municipal donations to railroad and other private corporations. What has been said is sufficient to dispose of the case. The judgment below sustaining the demurrer was correct and is affirmed. Affirmed. The United States v. Miles H. Morris, Sina D. Pinson, executrix of elchard a. pinson, deceased, et al. The account of a delinquent revenue officer, or other person accountable for public money, as finally adjusted by the proper officers of the Treasury Department, to be admissible as evidence under section 886 of the Revised Statutes, slioiild be certified and authenticated to be a transcript from the boolcs and proceedings of tlie department. It is 1880.] The United States v. Morris. 435' Opinion of .the court. not sufficient that the certificate states the account or acconnts offered as evidence to be copies of originals on file. The latter is the form of certificate used in reference to mere copies of bonds, contracts, or otlier papers connected witli the final adjustment, and which, duly certified and authenticated, have the same effect as the originals would have if produced in court. Error to the Circuit Court of the United States for the Western District of Tennessee. S. F. Phillips, Solicitor -General, for plaintiff in error. Estes ^ Ellett, for defendants in error. Harlan, J. — This is an action against the executrix of one' of several sureties in the oiBcial bond, executed April 9, 1858, of Miles H. Morris, formerly a purser in the navy. The gov- ernment claims that deceased failed to account for certain clothing received by him as purser on board the ship Van da- lia, and for a large amount of public money received by him as purser and disbui'sing officer on board the ship Seminole. The bill pf exceptions states that the district attorney, after reading in evidence a certified copy of the bond of Morris, as purser in the navy, offered to read to the jury, as evidence in behalf of the United States, " the account of Miles H. Moi'ris, as purser in the United States navy, as certified by the Treas- ury Department." The account thus offered is made up of several distinct papers, as follows : " Brief to accompany the account of Miles H. Morris, late paymaster U. 8. navy. — Ab- stract of expenditures of Miles li. Miles, paymaster U. S. 8. Vandalia. — Abstract of clothing and small stores. — Abstract of expenditures of Miles H. Morris, paymaster U. S. S. Sem- inole. — Statement of the account of Miles H. Morris, a purser U. S. S. Vandalia, from May 19, 1858, to January 6, I860.— Statement of the account of Miles H. Morris, paymaster U. S. S. Seminole, from May 1, 1860, to March 12, 1861, report' 4,805. — Statement of the account of M. H. Morris, late pay- master U. 8. navy, supplementary to report 4,805. — Statement 436 Thb "United States v. Mokris. [Oct. Term, Opinion of the Gourt. of the account of M. H. Morris, late paymaster U. 8. navy, supplementary to report IGla." To these abstracts and statements is appended a certificate or communication by the Fourth Auditor of the Treasury De- partment, under date of January 19, 1874, addressed to the Second Comptroller of the Treasury, stating that he had exam- ined and adjusted the account of Morris, late paymaster U. S. IS., supplementary to his account of Seminole report 161g, and found that there was duo from him to the United States the sum of $5,922.60 under certain heads of appropriations which are specified, and also that the statements and accounts showing such balance were therewith transmitted to the Sec- ond Comptroller for his decision thereon. There is also ap- pended a staternent by the Second Comptroller, under date of January 20, 1874, to the efl-ect that he admitted and certified the balance reported bj' the Fourth Auditor. Prefixed to the foregoing papers is the certificate of the Secretary of the Treasury, under the seal of that department, to the eftect that William B. Moore, who certified the "an- nexed transcript," was then, and at the time of doing so was. Deputy Fourth Auditor of the Treasury, and that full faith and credit were due to his oflicial attestations. Following that of the Secretary was a certificate in these words : "Treasury Department, Fourth Auditor's Office, July 23, 1875. Pursuant to an act of Congress to provide for the prompt settlement of public accounts, approved 3d of March, 1817, I, William B. Moore, Deputy Fourth Auditor of the Treasury Department, do hereby certify that the annexed transcripts are true copies of the originals on file in this office. , Wm. B. Moore." To the reading of the foregoing "account" or "transcript" the defendant objected, and the objection was sustained; to which ruling an exception was taken by the government. 1880.] The United States v. Morris. 437 Opinion of the court. UiKler instructions from the court, a verdict was then returned for the defendant. Whether the papers offered in evidence by the government are competent evidence in support of its claim, is the general question presented for our determination. By the law, as it has long existed, it is the duty of the Fourth Auditor of the Treasury Department to receive and examine all accounts accruing in the Navy Department, or relating thereto, and after such examination to certify the balances, transmit- ting such accounts, with the vouchers and certificates, to the Second Comptroller for his decision thereon. (Rev. Stats., sec. 277.) Upon their examination by the latter ofBcer it be- comes his duty to certify the balance arising thereon to the Sec- retary of the Navy. (Eev. Stats., 273.) The statute also pro- vides that " the -auditors charged with the examination of the accounts of the departments of War and Navy shall keep all accounts of the receipts and expenditures of the public money in regard to those departments, and of all debts due to the United States or moneys advanced relative to those depart- ments; shall receive from the Second Comptroller the accounts which shall have been finally adjnsted, and shall preserve such accounts, with their vouchers and certificates, and record all requisitions drawn by the secretaries of those departments, the examination of the accounts of which has been assigned to them." (Rev. -Stats., 283.) When an account has thus been examined, passed upon, and the balance certified, it is adjusted, as well within the meaning of the section last quoted as of section 957 of the Revised Statutes. The latter section, in part, provides that " when suit is brought by the United States against any revenue officer, or other person accountable for public money, who neglects or refuses to pay into the treasury the sum or balance reported to be due to the United States upon the adjustment of his account, it shall be the duty of the court to grant judgment at the re- , turn term, upon motion, unless the defendant in open court [the United States attorney being present] makeg and sub- 4?38 The United States v. Morris. [Oct. Term, Opinion of the court. . scribes an oath that he is equitably entitled to credits which had been, previous to the commencement of the suit, submitted to the accounting ofiicers of the treasury and rejected; speci- fying in the affidavit each particular claim so rejected, and that he cannot tiien safely come to trial. If the court, when stich oath is made, subscribed, and filed, is thereupon satisfied, a continuance until the next succeeding term may be granted." This section is referred to for the purpose of showing as well the importance attached to the final adjustment of accounts by the proper officers of the treasury, as the difficulty in going behind or disputing the correctness of such adjustment when made the basis of a suit instituted to recover the balance re- ported to be due the government. We come now to section 886 of the Kevised Statutes, upon the construction of which depends the solution of the question to which we have already referred. That section declares that " when suit is brought in any case of delinquency of a revenue officer, or other person accountable for public money, a tran- script from the books and proceedings of the Treasury Departm.ent, certified by the register, and authenticated under the seal of the department, or, when the suit involves the accounts of the War or Navy Departments, certified by the auditors respect- ively charged with the examination of those accounts, and authenticated under the seal of the Treasury Department, shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment and award execution accord- ingly. And all copies of bonds, contracts, or other papers relating to or connected with the settlement of any account between the United States and an individual, when certified by the register, or by such auditor, as the case may be, to be true copies of the originals on file, andi authenticated under the seal of the depart- ment, may be annexed to such transcripts, and shall have equal validity and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court : Provided, That where suit is brought upon a bond or other sealed instrument, and the defendant pleads non est fac- 1880.] The United States v. Morris. 439 Opinion of the court. turn, or makes his motion to the court, verifying such j)lea or motion by his oath, the court may take the same into consid- • oration, and, if it appears to be necessary for the attainment of justice, may require the production of the ' original bond, contract, or other paper specified in such affidavit." This section embodies the provisions found in the second section of the act of March 3, 1797, (1 Stat., 512,) providing moi'c efiectuallj' for the settlement of accounts between the United States and receivers of public money, and the eleventh section of the act of March 3, 1817, relating to the prompt settlement of public accounts. (3 Stat, 367.) It will be observed that section 886 refers to "transcripts from the books and proceedings of the Treasury Department," as well as to "copies of bonds, contracts, or other papers re- lating to or connected with the settlement of any account between the United States and an individual." The former, certified and authenticated as required by the statute, "shall be admitted as evidence," while the latter, certified and au- thenticated in like manner, "may be annexed to such tran- script," and have " equal validity and be entitled to the same degree of credit which would be due to the original papers if produced and authenticated in court." Commenting upon similar language in the act of March 3, 1817, this court, in Smith V. United States, 5 Pet., 300, (which was a suit against a paj^master in the army for a balance alleged to bo due to the government,) said that under the head of "a transcript from the books and proceedings of the Treasury Department" were included "charges of money advanced or paid by the department to the agent, and claims suspended, rejected, or placed to his credit." These all appear, said the court, upon the " books " of the department, and the decision on the vouch- ers exhibited, and the statement of the amount due, constitute, in part, the " proceedings " of the treasury. The court, in that case, recognizes the transcript from the books and proceedings of the department as a document which shows the account of the government debtor, as finally adjusted by the proper offi- 440 The United States v. Morris. [Oct. Term, Opinion of the court. cers, and as it appears upon the records of the department. Such adjusted accounts, says Chief Justice Taney, necessarily show the charges against as well as the credits of the dis- bursing officer. "They could not," said he. "be adjusted on the books in any other manner, and the transcript, or, in other words, the copy of the entire account as it stands on the books, (which must include debits as well as credits,) is made evidence by the law. Nor do we see any reason for restricting the words of the act of Congress within narrower limits than the words plainly imply. The accounts are ad- justed by public sworn officers, bound to do equal justice to the government and the individual. Thej' are records of the proper departments, and are always open to inspection of the party interested." (Bruce v. United States, 17 How., 439.) Unless, therefore, the transcript ofl'ered as evidence upon the trial below is certified by the proper officer, and authenti- cated under the department seal, to be "a transcript from the books and proceedings of the Treamry Department,^' it is not such a transcript as the statute makes evidence. We are of opinion that the transcript oft'ered is not certified and authenticated to be of that character which the statute declai'es shall be admitted as, in itself, evidence. The certifi- cate of the Deputy Fourth Auditor is that the " transcript " thereto annexed, that is, the statement and abstracts heretofore described, are "true cofies of the originals on file''' in his office. That is precisely such a certificate as the officer would make in reference to mere copies of bonds, contracts, or other papers relating to or connected with the final adjustment of the ac- count, for the purpose of giving to such copies the same effect as would be accorded to the originals if produced and authen- ticated in court. . If 4:he papers offered, and excluded by the court below, constitute, in fact, the final adjustment of Morris's accounts, the certificates should not have described them as copies of originals on file, but as transcripts of the books and proceedings of the department. The statute, for the con- venience of the- government in a certain class of suits against 1880.] The United States v. Mokris. 441- Opinion of the court. delinquent public officers, makes an alteration of the estab- lished laws of evidence. The government, by a statutory rule which the courts must enforce, denies to defendants in such suits the benefit of the recognized principles which, at common law, govern the proof of essential facts in issue, and it should ■not be permitted to claim an exemption frorn the fair and legitimate operation of that rule. It may be true, as the cer- tificate of tbe Deputy Fourth Auditor states, that the papers offered are true copies of some originals on the files of his office; for instance, of the original drafts of settlement. But it does not necessarily follow that they present- an accurate or '.'orrect statement of the final settlement or adjustment of the acconnts as shown on the books and in the record of the pro- ceedings of the department. Such originals may never have become a part of the books and proceedings of the department in the sense of the law, or within the meaning of our former decisions. (United States r, Buford, 3 Pet., 12; Smith v. Utiited States, 5 Pet., 292; Cox v. United States, 6 Pet., 172; United States v. Jones, 8 Pet, 375; Gratiot v. United States, 1 5 Pet, 336 ; Hoyt v. United States, 10 How., 109 ; Bruce v. United States, 17 How., 437.) That the abstracts or statements offered and excluded may, upon their examination, seem to the court to be the final adjustment of Morris's accounts, is not sufficient. Upon that question the court might be mistaken in an}' conclusion it should reach, or it may err in the infer- ences drawn from the items of the accounts. What the statute meant was, that the official certificate of the officer charged with the examination of the accounts should be of such char- acter as to give the court, as well as the parties, an assurance that the transcript offered as evidence to support the claim of the government, exhibits in fact ihQ final -adjustment of the accounts of the delinquent officer, as shown, not by mere copies of original papers on the files, but upon the books and records of the depai'tment. This question, in a somewhat differeiit form, arose in Sniith V. United States, supra. There, as here, ,the auditor pertified. 442 The United States v. Mokris. [Oct. Term, Opinion of the court. that the transcripts offered in evidence were " ti'ue copies of the oi'iginals on Hie " in his ofBce, and in that form the certiii- cate narrowly escaped condemnation. The majority of the court, evidently with some hesitation, held the transcripts ad- missible in evidence upon the ground that the bill of exceptions stated that the documents, offered as evidence and excluded, purported to be transcripts " from the books and proceedhigs of the Treasury Department.". Upon that point three of the judges dissented. The grounds of the dissent are stated in the opinion of the court. The minority held that the certiticate could be regarded as referring only to papers tlie originals of which were on tile; that the books of the department could not be said to be on file, nor were copies from them copies from originals within the meaning of the statute ; that it was a copy from the books and proceedings in the Treasury' Department which was made evidence, and not mere copies of papers, though on the iiles, on which the rough draft of settlement may have been entered. The present bill of exceptions does not bring the present case, upon this particular point, within the ruling in Smith v. United States. There is no statement in the bill here that the papers offered and excluded were transcripts from the books and proceedings in the treasury, but only that they constituted the " account of Miles H. Morris, as purser of the United States navy, as certified by the Treasury Department." Tliis language is not equivalent to that which the statute requires in order to make the transcript evidence, and we are Aot dis- posed to extend the rule announced in Smith v. United States. The statute is founded in justice as well as in the necessities of the government when compelled to institute suits against de- hnquent public officers. Its provisions are easily understood, and it is not at all difficult to meet the manifest object Con- gress had in enacting them. When the government clesires, in suits against a delinquent officer acpountable for. public money, to use the final adjustment of his accounts as evidence, the certificate of the officer should show, not necessarily in the 1880.] Walkkr v. Keistee: 443 " Opinion of the court. very words of the statute, but plainly, and not by mere infer- ence, that the transcript ofiered is from the books and pro- ceedings of the department; in other words, that Buch tran- script presents the account of the delinquent as finallj' adjusted by the proper officers of the government and spread upon the records of the department. Without stopping to consider other points raised by counsel in support of the ruling below, it is sufficient to say that, for the reasons given, the court below did not err in excluding from the jury the transcripts offered by the government. The judgment is affirmed. Affirmed. William E. Walker, assignee in bankruptcy of the North Missouri Insurance Co., v. Joseph T. Keister et al. 1. Certain bonds loaned to the officers of an Insurance company for the purpose of exhibition to official examiners as part of the company's assets, and returned immediately after such examination, cannot be recovered of the said officers under a hill alleging a conversion of them as the bonds of the company, filed by the assignee in banUruptoy of the company. By such an act they never became the bonds of the company.' 3. The wrongof such a transaction by the said officers does not estop them from proving, as against the other party to the wrong, the character of their possession. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. Nathaniel Myers, for appellant. James 0. Broadhead, for appellees. Miller, J. — The appellant, who was assignee in bankruptcy of the North Missouri Insurance Company, filed his bill in equity in the District Court for the Eastern District of Mis- souri against the appellees, who had been the officers and di- 444 Walkek v. Eeisteb,. [Oct. Term, Opinion of the -court. rectors of the corporation prior to the bankrupt proceedings. The District Court, after answer, replication, and voluminous depositions, dismissed the bill, and the Circuit Court affirmed that decree on appeal. From this latter decree the assignee appeals to this court. The bill, in substance, sets forth that, at a certain date prior to the institution of proceedings in bankruptcy, the corporation was the owner of bonds of the counties of Macon, Schuyler, Knox, and Adair, and other securities, amounting in the aggre- gate to over $13(3,000 ; that the bonds were in the possession of the company in the month of May, 1875, when they were exhibited to the superintendent of the insurance department of the State of Missouri, and a similar officer of the State of Ohio, by the defendants, or some of them, as investments of the funds of the company, and as evidence to these superintendents of the sound condition of the company and its right to continue the business of insurance. The foundation of the I'elief sought is thus stated in the language in the bill: " Yet your orator further shows that, notwithstanding the premises, the said directors and officers, unmindful of their duty aforesaid, but intending to cheat and defraud the said insui'ance company and its creditors aforesaid, prevailed upon and pro- cured the said treasurer to unite and co-operate with them, as in fact he did unite and co-operate with them, in parcelling out and distributing the said notes and bonds among themselves and their friends at some time prior to the 19th day of June, 1873, wholly without consideration whatever, and in gross disregard of their duty as such directors and officers of said conipanj', and thereby and through the neglect of duty, and through the fraud and breach of trust of the said officers and directors of' said company, the said bonds and notes became and were wholly lost to the said company and its creditors, and to your orator as assignee 'aforesaid." Theanswer denied that the company ever owned the bonds and that they were so parcelled out and distributed among the defendants and their friends. 1880.] "Walker v. Reisteb. 445 OpinioB of tho court. The clear result of a large amount of testimony in regard to the bonds in controversy, is that they were borrowed from divers persons and eor^aorations who owned them, or were placed in the temporary possession of the officers of the insur- ance company for the purpose of being shown to the examining superintendents as property of that company, with the under- standing that as soon as the examination was over they should be returned to their owners, and that this was done. It is also established that the parties who actually owned the bonds were aware of the fraudulent use which was to be made of them, and were willing in this way to contribute to the deception prac- ticed on the official examiners. Nothing of this, however, is alleged in the bill br is found in the answer. The relief sought is based squarely on the ground that the bonds in question, being in possession of the defendants as the property of the insurance company, were by them un- lawfully converted to their own use, whereby the company and the creditors of the compa ly, by reason of its insolvency, were defrauded of their value. The bill makes a case of conversion for which an action in the nature of trover at common law would lie, and it is difficult to see any sufficient ground for the interposition of a court of equity. But, apart from this, it seems that unless the complainant has sustained both of the pi'incipal allegations of the bill, namely, that the bonds were the property of the company and that the defendants unlawfully converted them to their own use, his bill was properly dismissed. Now, the testimonj' makes it very clear that the defendants did not convert the bonds to their own use, or distribute them among their friends, as alleged in the bill. It is also quite ap- parent that they received no consideration for the return of the bonds to their owners and committed no fraud on the insurance company in the transaction, and that, in fact, they were acting with a mistaken zeal in what they supposed to be the interest of their corporation. They do not, therefore, occupy the position of embezzlers of 446 Walker v. Ebister. [Oct. Teiin, Opinion of the court. fnnds iiitrnsted to their charge by the company, but that is pre- cisely the eifect of the allegations of the bill which we have copied, and it is also the only inference to be drawn frona the whole of its scope and tenor. So, also, we do not think that the evidence establishes that the insurance company was ever the owner of these.bonds. It never paid anything for them, nor gave consideration in any other way. It lost nothing by the transaction in which the bonds came into the possession of its officers and passed out of that possession. It had not, therefore, any honest claim to the ownership of the bonds, and if the dishonest purpose for which they were used can be imputed to' the corporate entity, it is very certain that when the transaction was over it could confer no rightful authority on that corporation to retain or reclaim the bonds. As between the insui'ance company and the owners of the bonds, the title never passed from the latter, nor did any vested ownership pass to the former. How, then, can it be said that these officers cheated or defrauded the company ? Or that the bonds were lost to the company by their neglect, or their fraud, or breach of trust? IIow could the corporation lose what it did not own ? IIow could it be cheated out of that to which it had no right ? How could it be defrauded out of property belonging to others and in the hands of those who owned it? A very ingenious argument is made by counsel of appel- lant, on which he places much reliance, to the effijct tha,t, hav- ing proved that these bonds were once in the possession of the insurance company, and were not to be found when its assets were turned ov^r to the assignee, he has made a prima-facie case* and that defendants cannot set up in their defense the fraudulent transaction which shows their own gUilt. It is not necessary to decide here whether, if the plaintiff had brought an action of trover, and had proved before the jury by some competent witness that these bonds were in the hands of the officers of the company, who asserted them to be ' the bonds of the corporation, they would in defense have been 1880.] Walkee v. liBisTEE. 447 Opinion of the court. permitted to show the facts we have stated because of the tur- pitude of their action in the matter. We need not decide this, for the reason that in proving the possession of these bonds the plaintiff has proved at the same time the character of that pos- session. He has proved that the possession of the insurance company was not with claim of ownership, but it was a tem- porary loan,. not of the bonds, but of their possession for a defi- nite purpose, which being accomplished they were returned to their real owners. It was one transaction, and must be so con- sidered in the broad view of a court of equity — a transaction in which the fraudulent purpose is fatal to the title of the insur- ance company, or any right which that company could assert under it. A court of equity will not stop half-way in the in- vestigation of a fraud which is quite apparent to give one of the parties to it affirmative relief at the expense of the other. In such cases, better is the condition of the defendant. It is also argued that the fraud was against the creditors of the company, and the assignee can pursue the partj' who de- frauded them. To this there are several sufficient answers : 1. The bill is not framed on that foundation, but distinctly on the ground of a conversion of the funds of the company, which, if true, is to that extent a fraud on the company's creditors. But, as we have already shown, the company was defrauded of nothing, because it did not own the bonds. 2. Though the bill alleges iri a general way that the exhibi- tion of these bonds was a fraud upon the creditors, it is diffi- cult to see how that can be if the bonds were, as the bill al- leges, at that time the property of the company. If that was so, the officers had a right and were in duty bound to exhibit them. 3. There is no allegation .that any particular creditor ever became so, or was influenced in his action toward the corpo- ration, by reason of this exhibition of these securities, and.it is denied in the answer that any creditor was so influenced, and no proof to establish the charge is given. 448 Goodman v. Niblack. [Oct. Term, Opinion of the court. 4. And last, it seems to be reasonable that if any creditor was misled to his loss by this fraudulent misconduct of the oiE- cers of the company, he would have a corresponding right to a remedy in his own name against them* to the extent, of his individual injury, quite independent of the right of the as- signee to recover for property of the corporation embezzled or converted by these officers. In short, whatever remedy there may exist to any one to pursue these parties and others for their share in this transac- tion, either at law or in equity, this bill, founded on a devasta- vit of assets of the company, if language borrowed from a kin- dred branch of the law may be thus used, cannot be sustained, because it is clear that the bonds which are said to have been converted were never the bonds of the bankrupt corporation. The decree of the Circuit Court is affirmed. Affirmed. Charles Goodman v. William E. Niblack. 1. Section 3477 of the Revised Statutes of tlie United States does not for- bid the transfer of a claim against the government on a mail contract to trustees in a general deed of assignment made by the claimant to secure his creditors. 2. Such trustees arc necessary parties to a bill filed by one of the creditors to subject to a judgment the propeeds of the claim so conveyed, and no decree can be made till they arc brought before the court, either by personal service, or by publication under section 738 of the Revised Statutes of the United States. Appeal from the Circuit Court of the United States for the District of Indiana. J. C. Denny and D. V. Bums, for appellant. F. W. Viehe, for appellee. Miller, J. — This is an appeal from the Circuit Court of the 1880.] Goodman v, Niblack. 449 Opinion of the court. United States for the District of Indiana dismissing the com- plainant's bill on demurrer. There came into the hands of the defendant, as administrator de bonis nov of the estate of Albert G. Sloo, the sum of $150,000, and the plaintiff is the owner of a judgment against said Sloo for $31,344.44, recovered in the Supreme Court of the State of New York on the 20th day of January, 1855. The purpose of the present bill is to follow this money in Niblack's hands as a trust fund devoted by Sloo in his life-time to the payment of the plaintitf 's judgment. This trust arises, if it exist at all, out of a deed of assignment made by Sloo of all his property, rights, and credits to Benjamin H. Cheever and James Wiles, of the date of February 3, 1860, for the benefit of all his creditors, but with some preferences, among which is the judgment of com- plainant. The, sum above mentioned was received by Niblack as the share of Sloo's estate in a claim of over $1,000,000 re- covered in the Court of Claims against the United States and paid by the government to Marshall 0. Roberts and Edward Uickerson, in whose names the judgment was recovered. The history of this claim, which is necessary to an understanding of the case in hand, is this: The fourth section of the act of Congress of March 3, 1847, (chapter 62, 9 United States Statutes, 187,) directed the Secre- tary of the Navy to contract with Sloo for the transportation of the mails of the United States from New York to New Or- leans, Charleston, Savannah, Havana, and Chagres and back twice a month, at a compensation not to exceed the sura of $290,000. The mail was to be carried in steam vessels of a character described in the act, not less than live, in number, to be constructed under the supervision of otHcers of the navy, in such manner as to be easily converted into war steamers of the lirst class. Under this authority the Sccretaryand Sloo exe- cuted a written contract oil the 20th day of April of that year for the construction of the ships and transportation of the mails at the sum of $290,000 per annum. On the 17th day of Au- gust thereafter Sloo entered into an agreement with Marshall 29 450 Goodman v. Niblack. [Oct. Term, Opinion of the court. 0. Kobevts, George Law, Prosper M. Wetmore, and Edwin Crosswell, by which they were taken into this contract with ' him, and agreed to build the vessels and run them, and per- form the obHgations of Sloo to the government, and Sloo was to receive one-half of the net profits of the venture, and the four persons named the other half. In order to the perfect working of this agreement, a tripartite instrument in writing was made, in which Sloo is called the party of the first part, and Roberts, Law, Wetmore, and Crosswell the party of the second part, and George Law, Marshall 0. lioberts, and Berres R. Mcllvaine party of the third part; whereby, after reciting the agreement between the party of the first part and the party of the second part, the contract of Sloo is assigned to the party of the third part as trustees for the due execution of the agree- ment. This was signed by all the persons named. The ships were built, the mails carried for many years, and by death and substitution Marshall 0. Roberts and Edward , Dickerson became the surviving trustees under the agreement, and in a controverssy with the United States recovered, as such trustees, in the Court of Claims, the sum of $1,031,000 as money due under the original contract with Sloo, which judgment was affirmed in this court and the money paid to Roberts and Dickerson. In ,the meantime Sloo had become insolvent, and executed the general assignment to Cheever and Wiles already men- tioned, in 1860, and had died before the final payment of the money by the government to Roberts and Dickerson, and Mblackhad been appointed his administrator. These facts are all set out in the bill, and copies of the several contracts and assignments are tiled as exhibits. Another aver- ment of the bill is, that the sum really due to Cheever and Wiles, as assignees of Sloo, out of the sum paid by the govern- ment, was $182,000 ; that Cheever and Wiles received |37,000 of this money, and consented to the payment of the remaining $150,000 to Niblack under some arrangement not understood by complainant. It is also alleged .thatall the other indebted- 1880.] Goodman v. Niblack. 451 Opinion of the court. iiess of Sloo which might have been a claim on this fund under his assignment to Cheever and Wiles has been paid, and there remains no other claim on it than complainant's. It is also averred that Wiles and Cheever are not citizens of Indiana, and cannot be served with process, and are not made parties to the bill, and, for the reasons above stated, are not necessary parties. The demurrer is, tirst, general, and, secondly, special as re- gards the failure to make Cheever and Wiles parties. The general demurrer is maintained on the ground that the assignments made by Sloo are void by reason of the provisions of section 3477 of the lievised Statutes. These provisions were enacted by Congress in 1853, (10 U. S. Statutes, 170,) and were, therefore, not in force when Sloo made his contract with the government, nor when he made his agreement with Eoberts, Law, and others, and that agreement remains unaffected by the statute. It was in force, however, when he made the gen- eral assignment of all his effects to Cheever and Wiles; and as complainant claims through that assignment, and can prob- ably succeed only in that way, (because, as we are informed, the State court of Indiana has decided that the.statute of limita- tions bars the complainant's claim as an ordinary debt,) we must inquire whether that assignment is void under the act of Congress. The statute has several times within the last few years re- ceived the consideration of this court. (See United States v. Gillis, 95 U. S. E., 407; Spoflbrd v. Kirk, 97 U. S. R., 484; Erwin v. United States, Id., 392.) And it is understood that the Circuit Court sustained the demurrer in this case under pressure of the strong language of the court in Spoiford v. Kirk. We do not think, however, that the circumstances of the present case bring it within the one then under consideration, or the principles there laid down. That was a case of the transfer or assignment of a part of a disputed claim then in controversy, and it was clearly within all the mischiefs designed to be remedied by the statute. Those 452 Goodman v. ISTiblack. [Oct. Term, Opinion of the court. mischiefs, as laid down in that opinion, and in the'others re- ferred to, were mainlj' two: First. The danger that 'the rights of the government might be embarrassed by having to deal with several persons instead of one, and by the introduction of a party who was a stranger to the original transaction. Second. That by a transfer of such a claim against the gov- ernment to one or more persons not originally interested in it, the way might be conveniently opened to such improper in- fluences in prosecuting the claim before the departments, the courts, or the Congress, as desperate cases, when the reward is contingent on success, so often suggest. Both these considerations, as well as a careful examination of the statute, leave no doubt that its sole purpose was the protection of the government, and not that of the parties to the assignment. The case of Erwin v. The United States, 97 U. S. K, 392, decided at the same term as Spofford y. Kirk, is sug- gestive on this point. It was there held that the claim of a person declared bankrupt against the United States passed hj the assignment in the bankruptcy proceeding to the assignee, and that the assignee, and not the original claimant, was the proper person to sue in the Court of Claims. "The passing of claims to heirs, devisees, or assignees in bankruptcy' is not within the evil at which the statute of 1853 was aimed," said the court. The language of that statute includes " all transfers and assignments of any claim upon the United States, or of any part thereof or any interest therein." These words are broad enough, if such were the purpose of Congress, to include transfers by operation of law, or by will. , Yet in that case wo held it did not include transfers by operation of law, or in ' bankruptcy, and we said it did not include a transfer by will. The obvious reason of this is, that there can be no purpose in such cases to harass the government by multiplying the num- ber of persons with whom it has to deal, nor any danger of enlisting improper influences in advocacy of the claim ; that in such cases the exigencies of the party who held the claim 1880.] Goodman v. Niblack. 453 Opinion of the court. justified and required the transfer that was made. In what respect does the voluntary assignment by an insolvent debtor of all his effects, for the benefit of all his creditors, which effects nmst, if the assignment is honest, include a claim against the government, differ from the assignment which is made in bank- ruptcy ? There can here be no purpose to bring improper means to bear in establishing the claim, nor can it be readily seen how the government can be embarrassed by such an assignment. The claim against the government is not specifically mentioned, and is obviously only included by the just and proper purpose of appropriating the whole of his effects to the payment of all his debts. We cannot believe that such a meritofious act as this comes within the evil at which Congress aimed in the act of 1853. It is also to be remarked that the government had recog- nized Sloo's original assignment of his contract to Roberts, Law, and Mcllvaine, as trustees, by permitting them to per- form the contract and receive the paj' under it for years ; and when a dispute arose as to the sum due .under that contract. Congress, by the act of July 14, 1870, very fully recognized the validity of that transfer. That act is in these words : " Be it enacted by the Senate and House of Representatives of the United States of America i'n Congress assembled, That the claim of the trustees of Albert G. Sloo, for compensation for services in conveying the United States mails, by steamers, direct be- tween New York and Chagres, in addition to the regular service required under the contract made between the said Albert G. Sloo and the United States, be, and the same is hereby, referred to the Court of Claims; and the said court is hereby directed to examine the same, and determine and ad- judge whether any and, if any, what amount is due said trus- tees for said extra service, provided that the amount to be awarded by said court shall be upon the basis of the value of conveying other first-class freight of like quantity with the mails actually carried between the same points at the same time." 454 ' Goodman v. Niblack. [Oct. Term, Opinion of the court. This is still further recognized by the appropriation to pay this judgment "to Marshall 0. Eoberts and Edward Dicker- son, surviving trustees of A. G. SIoo," found in chapter 3 of the Second Session of the Forty-fifth Congress. (20 U. S. Stats., 7.) The first agreement of Sloo, therefore, is unassailable. I-Iis assignment to Cheever and Wiles, in 1860, conveyed only his interest in the profits of the contract which the parties in the first assignment were performing or had performed for the government. The general assignment of Sloo, in I860, gave Cheever and Wiles no right to assert a claim against the government. They could only deal with the trustees under the first assignment, and on them they had only the claim for net profits which came into their hands. Cheever and Wiles and the present com- plainant were neither of them capable of suing the United States in the Court of Claims or of presenting the matter be- fore the accounting officers of the government, and could give no valid or just acquittance to the government for any part of the claim. We do not think the transfer to Cheever and Wiles, as trus- tees for Sloo's creditors, is forbidden by the act of 1853, or by any other principle of law or of public policy. But we are of opinion that Cheever and Wiles are not only proper but necessary parties to this suit. The entire sum to which the estate of Sloo could possibly be entitled was assigned to them. The trust on which it was assigned remains unexe- cuted. They are charged with having received $37,000 of that fund. What have they done with it ? If, as alleged in the bill, there are no other debts of Sloo secured by the assignment, this sum in their hands should be accounted for before a decree against Sloo's administrator. They are charged with consenting to the payment to the ad- ministrator of the fund now sought in this suit. There may have been good reasons for it, and if not, they may be person- ally liable for it. The fund can only be subjected to the com- 1880.] Goodman v. Niblack. 455 Opinion of the court. plainant's debt through these trustees. It is only in right of the assignment to them that plaintiti' proceeds. They are living, and cannot be divested of this trust by any decree to which they are not parties. The administrator has a right, if decree is rendered against him, to have it made eftectual against them. Notwithstanding the allegation of the bill that all the liabil- ities of the trust fund except plaintiff's debt have been dis- charged, this may not be so ; and it m'&.y be in the power of these trustees, and it may be their duty if made parties to this suit, to show that there are others 'entitled to share in it. No decree against that fund can rightfully be made while they are not before the court. This, however, need not defeat the jurisdiction of the court if the bill is amended by making them defendants. This is a proceeding in equity to enforce a lien on the fund which is within reach of the court, and as the trustees and complainant have the requisite citizenship, section 738 of the Revised Statutes provides a I'emedy for inability to servo pro- cess by an order of publication. If they appear, the suit will proceed as usual. If they do not appear, the decree, so far as it afl'ects the fund in the hands of Niblack, will bind them ; and this is all that is necessary to give the court jurisdiction to grant the relief prayed by defendant. If the decree of the Circuit Court had dismissed the case without prejudice for want of proper parties, we sbould have been hound to afKrm it; but, standing as it does now, it is a decision on the merits of the case and a bar to any other suit. It must, therefore, be reversed and remanded to that court. If the complainant shall ask leave to amend his bill by making Cheever and Wiles defendants, he should be permitted to do so and proceed with his case. If he does not do this, a deci'ee should be entered dismissing the bill for want of these parties and without prejudice to any other suit on the merits. (Shields V. Barrow, 17 How., 130 ; Barney v. Baltimore City, 6 Wall., 456 Lord v. Steamship Co. [Oct. Term, Opinion of the court. 280; House v. Mullin ei al, 22 Wall., 42;- Kendig v. Dean, 97 U. S. K, 423.) The decree of the Circuit Court is reversed, and the cause remanded for further proceedings in that court iu conformity with this opinion. Eeversed. Isaac W. Lord v. The Goodall, Nelson & Perkins Steam- ship Company. Congress, undei' ils power to i-egulate commerce, has power to regulate tlie liability of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and passengers between ports and places in the same State; and sections 4283-4289 of the Re- vised Statutes of tlie United Stales, known as the Limited Liabilitj' Acts, ai-e applicable to such cases. Error to the Circuit Court of the United States for the Dis- trict of California. S. F. Lieh and C. A. Kent, for plaintifl:" in error. John E. Ward, for defendant in error. Waite, C. J.— Sections 4283 and 4289 of the Eevised Stat- utes are as follows : "Sec. 4283. The liability of the owner of any vessel for any embezzlement, loss, or destruction, by any person, of any prop- erty, goods, or merchandise shipped or put on board of such v.essel, or for any loss, damage, or injury by collision, or for any act, matter, or thing lost, damage or forfeiture done, oc- casioned or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount of the value of the interest of such owner in such vessel and her i'reight then pending." " Sec. 4289. The provision of the seven preceding sections relating to the limitation of the liability of the owners of ves- 1880.] Lord v. Steamship Co. 457 Opinion of the court. sels shall not apply to the owners of any caiial-boat, barge, or lighter, or to any vessel of any description whatsoever used in rivers or inland navigation." Section 4283 was one of the seven sections referred to in section 4289. The steamship VeHtura, owned by the defendant in error, was employed in navigation between San Francisco and San Diego, in the State of California, touching at the intermediate ports on the coast. In making her voyages she ran a distance of four hundred and eighty miles on the Pacifie Ocean. She formed part of a transportation line which was largely en- gaged in foreign and interstate commerce, but was herself only employed on her own route, and neither took on nor put off goods outside of the State of California. "While on one of her regular voj'ages from San Francisco to San Diego siie was totally lost, with all her pending freight and cargo, on the coast of California, without the privity or knowledge of her owner. This suit was brought against her owner as a common carrier to recover the value of the goods lost. The cargo was mostly owned by retail merchants in San Diego and other places in California, who had made purchases for their busi- ness from wholesale merchants in San Francisco, and was in transit from there. The steamship company pleaded its ex- emption from liability as owner of the vessel under section 4283 of the Revised Statutes. On the trial the court instructed the jury, that "if the jury believed that the said losses occurred solely by reason of the negligence of the master of said ship, and without the privity or knowledge or neglect of said de- fendant, that said section 4283 of the Revised Statutes fully exonerated the defendant from liability for any such losses, notwithstanding the goods so lost were being transported on a journey when lost, the final termini of which were different points in the State of California." To this charge an excep- tion was duly taken. The jury found in favor of the defend- ant, and judgment was rendered accordingly. To reverse that judgment the present writ of error has been sued out. 458 Lord v. Steamship Co. [Oct. Term, Opinion of the court. The single question presented hj the assignment of errors is, whether Congress has power to . regulate the liabilit}' of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and passengers between ports and places in the same State. It is conceded that while the Ventura carried goods from place to place in California, her voyages were always ocean voyages. Congress has power "to regulate commerce with foreign nations and among the several States, and with the Indian tribes," (Const., art. 1, sec. 8,) but it has nothing to do with the purely internal commerce of the States; that is to say, with such commerce as is carried on between different parts of the same State, if its operations are confined exclusively to the jurisdiction and territory of that State, and do not affect other nations or States or the Indian tribes. This has never been disputed since the case of Gribbons v. Ogden, 9 Wheat, 194. The contracts sued on in the present case were, in effect, to carry goods from San Francisco to San Diego by the way of the Pacific Ocean. They could not be performed except by- going not only out of California, but out of the United States as well. Commerce includes intercourse, navigation, and not traffic alone. This also -was settled in Gibbons v. Ogden, sup-a, p. 189. "Commerce with foreign nations," says Mr. Justice Daniel, for the court, in Veazie v. Moore, 14 How., 573, " must signify commerce which, in some sense, is necessarily con- nected with these nations — transactions which either imme- diately or at some stage of their progress must be extraterri- torial." The Pacific Ocean belongs to, no one nation, but is the com- mon property of all. "When, therefore, the Ventura went out from San Francisco or San Diego, on her several voyages, she entered on a navigation which was necessarily connected with other nations. While on the ocean her national character only was recognized, and she was subject to such laws as the com- mercial nations of the world had, by usage or otherwise, agreed 1880.] Lord v. Steamship Co. 459 Opinion of the court. on for the government of the vehicles of trade occupjing this common property of all mankind. She was navigating among the vessels of other nations, and was treated by them as be- longing to the country whose flag she carried. True, she was not trading with them, but she was navigating with them, and consequently with them was engaged in commerce. If in her navigation she inflicted a wrong on another country, the United States, and not the State of California, must answer for what was done. In every just sense, therefore, she was, while on the ocean, engaged in commerce with foreign nations, and as such she and the business in which she was engaged were sub- ject to the regulating power of Congress. Navigation on the high seas is necessarily national in its character. Such navigation is clearly a matter of " external concern," aftecting the nation as a nation in its external affairs. It must, therefore, be subject to the national government. This disposes of the case, since, by section 4289 of the lie- vised Statutes, the provisions of section 4283 are not appli- cable to vessels used in rivers or inland navigation, and this legislation, therefore, is relieved from the objection that proved fatal to the trade-mark law which was considered in United States V. Steffens, 100 U. S., 82. The commerce regulated is expressly confined to a kind over which Congress has been given control. There is not here, as in Allen v. JN^ewberry, 21 How., 244, a question of admiralty jurisdiction under the law of 1845, but of the power of Congress over the commerce of the United States. The contracts sued on do not relate to the purely internal commerce of a State, but, impliedly at least, connect themselves with the commerce of the world, because in their performance the laws of nations on the high seas may become involved, and the United States compelled to respond. Having found ample authority for the act as it now stands in the commercial clause of the Constitution, it is unnecessary to consider whether it is within the judicial power of the United States over cases of admiralty and maritime jurisdiction. Affirmed. 460 Sinclair v. Cooper. [Oct. Term, Opinion of the court. William P. Sinclair & Company, a mrm composed of Will- iam P. Sinclair and Samuel Gibson Sinclair, owners and claimants op the ship connemara, her cargo, &c., by john Cameron, master, et al., t. Joseph Cooper, owner of the TUG Joseph Cooper, Jr., John J. Williams, master, et al. Where a decree in aclniiralty allowed to salvors a certain sum, and then proceeded to apportion tliat snm a^iiong the different salvors, the gmss sum allowed is, as to the owners of the property saved, the test of tlie amoniit required to give this conrt jurisdiction, and not the sejjarate amounts apportioned off to the different salvors. Appeal from the Circuit Court of the Uuited States for the District of Louisiana. Motions to dismiss and affirm. Richard De Gray and J. R. Beckwith, for appellees. P. Phillips, for appellants. Waite, C. J. — This suit below was by a set of salvors to recover for a single salvage service, and there was but one claim filed for the property saved. The total amount of the recovery was fourteen thousand one hundred and ninety-eight dollars, but in the division among the several parties entitled to share in the recovery some got less than five thousand dol- lars. Separate and distinct interests were not united in the suit. The service rendered was the joint service of all the salvors, and the recovery was on that account.- It was a mat- ter of no consequence to the owners of the property saved how the money recovered was apportioned among those who had earned it. The owners were decreed to pay the salvors for what they, acting together in a common service, had done. In such a suit we think the owners cannot be deprived of their appeal because the court below, in the further progress of the cause, saw fit to apportion the recovery among the salvors according to their respective merits. The decree is, in legal 1880.] BiNCLAiK V. Cooper. 461 Opinion of the court. effect, one decree in favoi* of all the salvors, they having, as between themselves, unequal interests. In all the cases where we have held that several sums de- creed in favor of or against different persons could not be united to give us jurisdiction on appeal, it will be found that the matters in dispute were entirely separate and distinct, and were joined in one suit for convenience and to save expense. Thus, in Seaver c. Bigelow, 5 Wall., 208, separate judgment creditors joined to set aside a fraudulent conveyance of their debtor, and the appeal was from a decree dismissing their bill ; in Eich /;. Lambert, 12 How., 347, several owners of cargo, having distinct interests, united in a libel against the ship to recover for damages done the goods, and the appeal was from a decree in favor of each owner for his separate loss ; in Oliver V. Anderson, G.Peters, 143, the libel was by seamen to recover their wages, and the decree was. in favor of each man sepa- rately for the amount due him individually; and in Stratton V. Jarvis, 8 Peters, 4, the decree was against each claimant of goods saved by salvage service for his separate and distinct share of the salvage. The cases were heard, so far as the merits were concerned, precisely the same as if separate libels had been filed for each cause of action, and the decrees as en- tered were as in case of separate suits. (Rich v. Lambert, sup-a, p. 353.) Here, however, the matter in controversy was the amount due the salvors collectively, and not the particular sum to which each was entitled when the amount due was dis- tributed among them. As in Shields v. Thomas, 17 How., 4, " they all claimed under one and the same title. They had a common and undivided interest in the claim, and it was per- fectly immaterial to the appellants how it was to be shared among them. If there was any difficulty as to the proportions, * * * the dispute v/as among themselves." The case, upon the merits, is one which we are not inclined to consider on a motion to aifirra. The motions are denied. ' Motions overkulbd. 462 Mobile County v. Kimball. [Oct. Term, Opinion of tlie court. The County of Mobile, State of Alabama, v. Seth N. Kimball and James E. Slaughter. 1 . In the .ibsence of len-islntion by Coiigi-es.=, tlie Stiites am eonstitiitioiially puss acts to impi'ove the navigation o{ tlieir rivei'S and liarboi-s, witli- out conflictino; vvitli tlie power of Congress to regulate coninier'ce. 2. Ill general, whether the States can legislate on commercial subjects in tlie absence of legislation by Congress, or whether the national power is exclusive, depends upon the nature of the snbject to be regulated ; for instance, on the distinction whether the legislation is on cnnniierce ils^U, or on mere aids to coniinerce. 3. Tiie imposition of tlie burden of improving the harbor of Mobile upon tlu! eoniity of Mobile, by the Alabama statute of February 16, 1S67, and the consequent taxation, is not taking private property for public use. Even if the imposition of tlie entire expense on one couuty is oppressive, it is a wrong foi' which this court can atTord no remedy. 4. Under the special facts, this suit held not to be barred b3' a previous adjiidicatlou between the same parties, but expressly without pri'ju- dice. 5. A suit to compel the delivery of certain bonds of the county .agreed to be given to the couiphiinaiits by the board of harbor commissioners, is in the nature of a bill for specific performance, and within the juris- diction of a court of equity. Appeal from the Circuit Court of" the Uuited States for the Southern District of Altibaraa. John T. Morgan, for appellant. C. W. Jones, for appellees. Field, J. — The several po.sitions taken by the appellant for the reversal of the decree of the Circuit Court may be resolved into these four: 1st. That the act of the Legislature of Ala- bama of February 16, 1867, "to provide for the improvement of the river, bay, and harbor of Mobile," is invalid, in that it coniiicts with the commercial power vested in Congress; 2d. That if the act be not, for this reason, invalid, the expenses for the work authorized by it could not, under the Constitution of the State then in force, be imposed upon-the county of Mobile, 1880.1 Mobile County v. Kimball. 463 Opinion of the court. the work being for the benefit of the whole State; 3d. That the right of the complainants to I'elief is barred by a previous adju- dication in the courts of the State against their claim ; and 4th. That the case presented b}' the bill is not one for the cognizance of a court of equity'. Each of these positions merits special consideration. 1. The act of February 16, 1867, created a board of com- missioners for tlae improvement of the i-iver, harbor, and bay of Mobile, and required the president of the commissioners of revenue of Mobile county to issue bonds to tlie amount of one million dollars, and deliver them, when called for, to the board, to meet the expenses of the work directed. The board was authorized to apply the bonds, or their proceeds, to the clean- ing out, deepening, and widening of the river^ harbor, and bay of Mobile, or any part thereof, or to the construction of an artificial harbor in addition to such improvement. lu June, 1872, the board of commissioners entered into a contract M'ith the complainants, Kimball and Slaughter, to dredge and cut a channel through a designated bar in the bay, of specified width, depth, and distance, at a named price per cubic yard of material excavated and removed, and to receive in payment the bonds of the county, issued under the act men- tioned, at the rate of eighty-two and a half cents on the dollar. In pursuance of this contract the work agreed upon was at once undertaken by the complainants, and was completed by them in March, 1873, and accepted by the board through its authorized engineer. The amount due to them was paid, with the exception of seventeen bonds. The board gave them a certificate that they were entitled to that number of bonds, atid, after some delay, delivered eleven to them. It is to obtain a delivery of the remaining six, or payment of their value, that the present suit is brought. The objectiou that the law of the State in authorizing the improvement of the harbor of Mobile trenches upon the com- mercial power of Congress, assumes an exclusion of State au- thority from all subjects in relation to which that power may 464 Mobile Countt v. Kimball. [Oct. Term, Opinion of the court. be exercised not warranted by tbe adjudications of this court, notwithstanding the strong expressions used by some of its judges. That power is indeed without limitation. It authorizes Congress to prescribe the conditions upon which commerce in all its forms shall be conducted bet^veen our citizens and the citizens or subjects of other countries, and between the citizens of the several States, and to adopt measures to promote its growth and insure its safety; and as commerce embraces navi- gation, the improvement of harbors and bays along our coast, and of navigable rivers within the States connecting with them, falls within the power. The subjects, indeed, upon which Con- gress can act under this power are of infinite variety, requiring for their successful management different plans or modes of treatment. Some of them are national in their character, and admit and require uniformity of regulation, aftecting alike all the States ; others are local, or are mere aids to commerce, and can only be properly regulated by provisions adapted to their special circumstances and localities. Of the former class may be mentioned all that portion of commerce with foreign coun- tries or between the States which consists in the transportation, purchase, sale, and exchange of commodities. Here there can, of necessity, be only one system or plan of regulations, and that Congress alone can prescribe. Its non-action in such cases, with respect to any particular commodity or mode of transpoitation, is a declaration of its purpose that the com- merce in that commodity or by that means of transportation shall bo free. There would otherwise be no security against conflicting regulations of different States, each discriminating in favor of its own products and citizens and against the products and citizens of other States. And it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the States was to insure uniformity of regulation asraiust conflict- ing and discriminating State legislation. Of the class of subjects local in their nature, or intended as mere aids to commerce, which are best provided for by special 1880.] Mobile County v. Kimball. 465 Opinion of the court. regulations, may be mentioned harbor pilotage, buoys, and beacons to guide manners to the proper channel in which to direct their vessels. The rules to govern harbor pilotage must depend in a great degree upon the peculiarities of the ports where they are to be enforced. It has been found by experience that skill and effi- ciency on the part of local pilots is best secured by leaving this subject principally to the control of the States. Their authority to act upon the matter and regulate the whole sub- ject, in the absence of legislation by Congress, has been recog- nized by this court in repeated instances. In Cooley v. The Board of Wardens of the Port of Philadelphia, the court refers to the act of Congress of 1789, declaring that pilots should continue to be regulated by such laws as the States might respectively thereafter enact for that purpose, and ob- serves that " it manifests the understanding of Congress, at the outset of the government, that the nature of this subject is not such as to require its exclusive legislation. The practice of the States and of the national government has been in con- formity with this declaration, fi-om the origin of the national government to this time ; and the nature of the subject, when examined, is such as to leave no doubt of the superior fitness and propriety, not to say the absolute nece.=?sity, of difl'erent sj'stems of regulation, drawn from local knowledge and expe- rience, and conformed to local wants." (12 How., p. 320.) ' Bno^'s and beacons are important aids, and sometimes are essential to the safe navigation of vessels, in indicating the channel to be followed at the entrance of harbors and iii rivers ; and their establishment by Congress is undoubtedly within its commercial power. But it would be extending that power, to the exclusion of State authority, to an unreasonable degree, to hold that, whilst it remained unexercised upon this subject, it would be unlawful for the State to provide- the buoys and beacons required for the safe navigation of its harbors and rivers, and in case of their destruction, by storms or otherwise, it could not temporarily supply their places until Congress 30 466 Mobile County v. Kimball. [Oct. Term, Opinion of the court. could act in the matter and provide for their re-estabhshmeut. That power which every State possesses, sometimes termed its police power, by which it legislates for the protection of the lives, health, and property of its people, would justify meas- ures of this kind. The uniformity of commercial regulations, which the grant to Congress was designed to secure against conflicting State pro- visions, was necessarily intended only for cases where such uniformity is practicable. Where, from the nature of the subject or the sphere of its operation, the case is local and limited, special regulations adapted to the immediate locality could only have been contemplated. State action upon snch subjects can constitute no interference with the commercial power of Congress; for when that acts, the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done with respect to them, but is rather to be deemed a declaration that, for the time being, and until it sees tit to act, they may be regulated by State authority. The improvement of harbors, bays, and navigable rivers within the States falls within this last category of cases. The control of Congress over them is to insure freedom in their navigation, so far as that is essential to the exercise of its com- mercial power. Such freedom is not encroached upon by the removal of obstructions to their navigability, or by other legit- imate improvement. The States have as full control over their purely internal commerce as Congress has over com- merce amon.g ;tlie several States and with foreign nations ; and to promote the growth of that internal commerce and insure its safety they have an u-ndoubted right to remove obstruc- tions from their hai'bors and rivers, deepen their channels, and improve them generally, if they do not impair their free navi- gation as permitted under the 'laws of the United States, or defeat any syetem for the.improvementof their navigation pro- 1880.] Mobile County v. Kimball. 467 Opinion of the court. vided by the general government. Legislation of the States for the purposes and within the limits mentioned do not in- fringe upon the commercial power of Congress; and so we hold that the act of the State of Alabama, of February- 16, 1867, to provide for the " improvement of the river, bay, and harbor of Mobile," is not invalid. There have been, it is true, expressions by individual judges of this court going to the length that the mere grant of the commercial power, anterior to any action of Congress under it, is exclusive of all State authority; but there has been no adju- dication of the court to that effect. In the opinion of the court in Gibbons v. Ogden, the tirst and leading case upon the con- struction of the commercial clause of the Constitution, and which opinion is recognized a^ one of the ablest of the great chief justice then presiding, there are several expressions which would indicate, and his general reasoning would tend to the same conclusion, that in his judgment the grant of the com- mercial power was of itself sufHciont to exclude all action of the States ; and it is upon them that the advocates of the ex- clusive theory chiefly rely; and yet be takes care to observe that the question was not involved in the decision required by that case. "In discussing the question whether this power is still in the States," he observes that "in the case under consid- eration we may dismiss from it the inquiry, whether it is sur- rendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that in- quiry, because it has been exercised, and the regulations which Congress deemed it proper to make are now in full operati6n. The sole question is, can a State regulate commerce with for- eign nations and among the several States while Congress is- regulating it?" And the decision was necessarily restricted' by the limitations of the question presented. It determined that the grant of power by the Constitution, accompanied by legislation under it, operated as an inhibition upon the States from interfering with the subject of that legislation. The acts of New York giving to Livingston and Fulton an exclusive 468 Mobile County v. Kimball. [Oct. Term, Opinion of the court. right to navigate all the waters within its jurisdiction, with vessels propelled by steam, for a certain period, being in collis- ion with the laws of Congress regulating the coasting trade, were, therefore, adjudged to be unconstitutional. This judg- ment was rendered in 1824. (9 Wheat., 1.) Some years later (1829) the case of Willson v. Blackbird Creek Marsh Company came before the court. There, a law of Delaware authorizing the construction of a bridge over one of its small navigable streams, which obstructed the navigation of the stream, was held not to be repugnant to the commercial power of Congress. Tiie court, Chief Justice Marshall delivering its opinion, phiced its decision entirely upon the absence of any congressional leg- islation on the subject. Its language was : " If Congress had passed any act which boro upon the case — any act in execution of the power to regulate commerce, the object of which was to control State legislation over these small navigable creeks into which the tide flows, and which abound throughout the lower country of the Middle and Southern States, we should not feel jTiuch ditiiculty in saying that a State law corning in conflict with such act would be void. But Congress has passed no such act. The repugnancy of the law of Delaware to the Constitu- tion is placed entirely on its repugnancy to the power to regu- late commerce with foreign nations and among the several States — a power which has not been so exercised as to aft'ect the question." (2 Peters, 262.) In the License Cases, which were before the court in 1847, there was great diversity of views in the opinions of the ditter- ent judges upon the operation of the grant of the commercial power of Congress in the absence of congressional legislation. Extreme doctrines upon both sides of the question were asserted by some of the judges, but the decision reached, so far as it can be viewed as determining any question of construction, was contirmatory of the doctrine that legislation of Congress is essential to prohibit the action of fhe States upon the subjects there considered. But in 1851, in the case of Cooley v. The Wardens of the 1880.] Mobile County v. Kimball. 469 Opinion of the court. Port of Philadelphia, to which we have aU-eady referred, the attention of the couvt appears to have been for the first time drawn to the varying and different regulations required bj' the different subjects upon which Congress may legislate under the commercial power; and from this consideration the conclusion was reached that, as some of these subjects are national in their nature, admitting of one uniform plan or system of regulation, whilst others, being local in their nature or operation, can be best regulated by the States, the exclusiveness of the power in any case is to be determined more by the nature of the subject upon which it is to operate than by the terms of the grant, which, though general, are not accompanied by any express prohibition to the exercise of the power by the States. The decision was confined to the validity of regulations by the States of harbor pilotage ; but the reasoning of the court sug- gested as satisfactory a solution as perhaps could be obtained of the question which had so long divided the judges. The views expressed in the opinion delivered are followed in Gil- man V. Philadelphia, 3 Wall., 727, and are mentioned with approval in Crandall v. State of Nevada, 6 Wall., 42. In the first of these cases the court, after stating that some subjects of commerce call for uniform rules and national legislation, arid that others can "be best regulated by rules and provisions suggested by the varying circumstances of different localities, and limited in their operation to such localities respectively," says, " whether the power in any given case is vested exclu- sively in the general government, depends upon the nature of the subject to be regulated." This doctrine was subsequently recognized in the case of Welton r. Missouri, 91 TJ. S., 282, in Henderson v. Mayor of New York, 92 IT. S., 259, and in nu- merous other cases; and it maybe considered as expressing the final judgment of the court. Perhaps some of the divergence of views upon this question among former judges ma^have arisen from not always bear- ing in mind the distinction between commerce, as strictly defined, and its local aids or instruments or measures taken 470 Mobile County v. Kimball. [Oct. Terra, Opinion of the court. for its improvement. Commerce with foreign countries and among the States, strictly considered, consists in intercourse and traiHc, including in tliese terms navigation and the trans- portation and transit of persons and property as vi'ell as the purchase, sale, and exchange of commodities. For the regu- lation of connnerce as thus deiined there can be only one system of rules applicable alike to the whole country; and the authority which can act for the whole country can alone adopt such a system. Action upon it by separate States is not, there- fore, permissible. Language affirming the exclusiveness of the grant of power over commerce as thus defined may not be inaccurate, when it would be so if applied to legislation upon subjects which are merely auxiliary to commerce. 2. The second objection of the appellant to the decree of the Circuit Court is equally as untenable as the tirst. The question of the validity of the act of February 16, 1867, under the Constitution of Alabama at the time in force, was before the Supreme Court of the State in 1871. It was contended that the act contravened the article which forbade the taking of private property for public. use without just compensation, or for private use, or the use of corporations other than mu- nicipal, without the consent of the owner, and the article which restrained the Legislature from delegating power to levy taxes to individuals or private corporations. The court held that the act was not open to objection on either of these grounds, except perhaps in the clause which authorized the board of commissioners to assess dues or tolls to be collected on vessels or water-craft; and if that clause could be deemed a delega- tion of the taxing power under the article mentioned, that portion onlj' of the act was invalid. The issue, by the presi- dent and commissioners of revenue of Mobile county, of bonds foi- the improvement of the river, bay, and harbor of Mobile, was not a taking of private property for public use within the meaning of the constitutional clause. It was a loan of the credit of the county for a work public in its character, designed to be of general benefit to the State, but more especially and 1880.] Mobile County v. Kimball. 471 Opinion of the court. immediately to the county. The expenses of the work were of course to be ultimately defrayed by taxation upon the property and people of the county. But neither is taxation for a public purpose, however great the taking of private property for public use, in the sense of the Constitution. Taxation only exacts a contribution from individuals of the State or of a par- ticular district for the support of the government, or to meet some public expenditure authorized by it, for which they re- ceive compensation in the protection which government aftbrds, or in the benetits of the special expenditure. But when private property is taken for public use, the owner receives full com- pensation. The taking differs from a sale by him only in that the transfer of title may be compelled, and the amount of com- pensation be determined by a jury, or officers of the govern- ment appointed for that purpose. In the one case, the party bears only a share of the public burdens; in the other, he exchanges his property for its equivalent in money. The two things are essentially different. The objection to the act here raised is different from that taken in the State court. Here the objection urged is that it fastens upon one county the expense of an improvement for the benefit of the whole State. Assuming this to be so, it is not an objection which destroys its validity. When any pub- lic work is authorized, it rests with the Legislature, unless re- strained by constltntional provisions, to determine in w-hat manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and immediately beaefited by the expenditure. It may be that the act, in imposing upon the county of Mo- bile the entire burden of improving the river, bay, and harbor of Mobile, is harsh and oppressive, and that it would have been more just to the people of the county if the Legislature had apportioned the expenses of the improvement, which was to benefit the whole State, among all its counties. But this court 472 Mobile County v. Kimball. [Oct. Term, Opinion of the court. is not the harbor in which the people of a city or -county can find a refuge from ill-advised, unequal, and oppressive State legislation. The Judicial power of the Federal government can only be invoked when some right under the Constitution, laws, or treaties of the United States is invaded. In all other cases the onlj'Temedy for the evils complained of rests with the people, and must be obtained through a change of their representatives. They must select agents who will correct the . injurious legislation, so far as that is practicable, and be more mindful than their predecessors of the public interests. 3. The objection that the right of the complainants to relief is barred bj' a previous adjudication in the courts of the State against their claim arises in this wise : After the complainants had performed their work on the harbor of Mobile, under the contract with the harbor commissioners of June, 1872, and the work had been approved and accepted, the Legislature passed the act of April 19, 1873, to regulate the further pro- ceedings of the board, restricting the issue of bonds to the amount, including Ihose already issued, of two hundred thou- sand dollars, and declaring that the harbor board should not, under any pretense whatever, be entitled to receive bonds to any greater amount. Bonds to that amount had already been delivered to the board, and for six of them, the number to which they were entitled, the complainants applied. The de- livery of the bonds being refused, they brought suit against the county of Mobile to obtain them or their value. Two grounds were alleged on which the responsibility of the county was asserted: one, that the harbor board had ceased to have anything to do with the improvement of the river, bay, and harbor of Mobile, and had turned over all the money and bonds left in its possession to the officials of the county; the other, that the county, through its officials, had bought from the harbor board thirty-one of the two hundred bonds issued, .at a price less than their market value, and had refused to de- liver to the complainants the six due to them, which they had demanded. 1880.] Mobile County v. Kimball. 473 Opinion of tho court. , The District Court gave a decree for the complainants, but the Supreme Court reversed it, holding that upon the first ground the complainants were mistaken as to the situation of the harbor board, and that it continued to exist for the pur- pose of winding up and settling its business; and upon the second ground, that although thirty-one of the bonds had been purchased as stated, they had been cancelled before the com- plainants made the demand for six of them ; and it was shown by the county that there still remained with the liarbor board, unaccounted for, twenty-three of the two hundred bonds, which was more than sufficient to pay the complainants and other debts which the board owed. The court, therefore, decided that the delinquency complained of was that of the harbor board, and not of the county ; that the only obligations im- posed upon the county were that it should issue its bonds upon the demand of the harbor board and pay them according to their stipulations; and as it appeared that the county officials had delivered to the board the whole amount of the bonds de- manded, and that this amount was ample for the fulfillment of the obligations contracted for, the suit could not be maintained. The decree was therefore reversed and the bill dismissed, but ivithout prejudice — a condition which prevented the adjudication from operating as a bar to the same claim, if the complainants could in another suit obviate the defects of the existing bill. In the present suit they have obviated these defects. They allege and prove that the harbor board had disposed of all the bonds it had received before the passage of the act of April 19, 1873, restricting the number to be issued, and tliat it had turned over to the officials of the county neither bonds nor proceeds to meet the demand of the complainants. The two suits, though seeking the same relief, rest upon a different state of facts, and the adjudication in the one constitutes, therefore, no bar to a recovery in the other. 4. But it is finally objected that the case presented by the bill is not one for the cognizance of a court of equity. This objection is important only from the supposed effect of the 474 Mobile County v. Kimball. [Oct. Term, Opinion of the court. decision of the Supreme Court of the State in the first suit against the countj' brought by the complainants. It appears to have been taken for granted by counsel, and also by the court below, that the Supreme Court of the State had decided that the harbor board was not the agent of the county in mak- ing the contract with the complainants. We do not so read its opinion. It- only says that the board was created by the General Assembly of the State, and was not an agent a-p- poiided by the county of Mobile. It does not state that the board was not an agent of the county, but only that its appoint- ment was not from the count}', and that it drew its existence and authority from the statute of the State. It is not neces- sary to constitute an agency of a political subdivision of a State, that its officials should be elected by its people, or be appointed with their assent. It is enough to give them that character that, however appointed, they are authorized by law to act for the county, district, or other political subdivision. Here, the harbor board, created by a law of the State, was authorized to make contracts for a public work in which the county was specially interested, and by which it would be im- mediately and directly benefited, and to require obligations of the county to. meet the expenses incurred. It is a mere battle of words to contend that it was, or was not, an agent of the county because its members were appointed by some exterior authority. It is enough in this case that by force of the law of its creation it could bind the county for work for which it contracted. Having thus bound the county, the contractors are entitled to the bonds stipulated, or their equivalent in money. If for any cause the repeal of the law creating the harbor board, or the refusal of its members or other officials to act, the contract cannot be specifically enforced, a court of equity will order compensation in damages from the party ultimately liable. That court will free the case from all tech- nical embarrassments, to the end that justice may be done to those who have trusted to the law and the responsibility of parties receiving benefits.under it. The case here is not differ- 1880.] Life Insurance Co. v. Eldridge. 475 Opinion of the court. ent in principle from the ordinary ease of a party being unable to comply with his contract when specific performance is de- manded. If, for example, there be a contract for the purchase of land, with which the purchaser has complied, but in which the vendor has failed, a court of equity will take jurisdiction; and if it be seen that the vendor, from subsequent sales or otherwise, cannot coraply_with a decree for a specific perform- ance, the court will adjudge compensation in damages. So here, the coui't will grant the relief which the complainants, under their contract, are entitled to have, if such relief can be obtained from the county; but if, by reason of intervening obstacles since the contract was made, whether arising from laches or default of its officials or repealing legislation, this cannot be secured, an alternative and compensatory decree — that is, one for a money equivalent in the form of damages — will be directed. And as this has been done in the present case, the decree is affirmed. Affirmed. The Connecticut General Life Insurance Company v. Charles A. Eldridge. Where a pnrchnser of property takes a deerl, lias iiifoi-matioii at' the time that a prior mortgagee or trustee of a pvlor deed has released the pi-op- evty from the mortgage or trust, without payment of the notes theieby secured or their surrens constituted part of the approach, the opinions of expert engineers are admissible and entitled to dne weight. 2. A contract must be construed in tlie light of snrronnding circnnistances, as the parties nnderstood it at the time it was made. Error to the Circuit Court of the "United States for the Dis- trict of Nebraska. Shellabarger jf Wilson, for plaintiff in error. John L. Webster and W. J. Conne.il, for defendants in error. Miller, J. — The Union Pacitic Railroad Company having undertaken to build a railroad bridge across the Missouri River at Omaha, entered into the following written contract, by its chief engineer and superintendent : "Omaha, /Mwe 13, 1871. " We hereby propose to furnish at Missouri River bridge §tone enough to complete said bridge and approaches, except- ing the three thousand yards now under contract to W. B. Clark, ag't, at the following rates, viz.: " Column stone, containing not less than three cubic feet each, and not le.ss than six inches in thickness, at three dollars and fifty cents per cubic yard. " Riprap stone, containing not less than six cubic feet each stone, at four dollars per cubic yard. " Dimension stone, containing not less than nine cubic feet each, and rectangular in shape, at four dollars and fifty cents per cubic yard. "All stone to be clear, sound, and durable, and subject to inspection of the engineer of the bridge, and in quantities as may be required. 492 Eailroad Co. v. Cloppbr. [Oct. Term, Opinion of the court. "It being understood that forty-four hundred and twenty pounds be a cubic yard. " Clopper and Gise. " Chas. Fleury. "Approved : " T. E. Sickles, [STAMP.] " Ch. Eiig'r and Siip't." The defendants in error having furnished a large amount of stone for which they received payment under this contract, and being ready and wilHng to furnish other stone which they allege was needed by the company to complete the bridge and its approaches, bring this suit to recover damages for the re- fusal of the company to receive it, alleging that it had bought the same from other persons. The case was submitted to a jury, who found a verdict for the plain titi's in the sum of $22,085.50, on which judgment was rendered, to reverse which this writ of error is brought. The assignments of error necessary to be considered here arise in the refusal of the court to grant certain prayers for instruction by the defendant, and the exception to the charge which the court did give to the jury. So far as these are material to be considered, they all relate to the mode of ascertaining what work, in which stone was used, was necessary to complete the bridge and its approaches with- in the meaning of the contract. It will be seen at once that the language of the contract on this point is very vague. There is no description of the bridge, no statement ,of its length, or the number of its piers, or their height; no indication of the length of the approaches to it, nor any estimate of quantity. Nor does the testimony reveal any statement of this kind referred to by either party at the time the contract was made,, or during its negotiation, nor any estimate made by' the company itself. The principle object of this action being the recovery of pi'ofits for stone not actually delivered, but which the plaintiffs would have made if delivered and paid for according to the terms of the contract, it would seem eminently proper that 1880.] Eailroad Co. r. Cloppbr. 493 Opinion of the court. plaintifts should make out clearly that the stone which was bought by the company from others was within the terms of their contract, and used to complete the bridge or its ap- proaches. The main controversy before the jury had relation to what constituted the eastern approach to the bridge. To under- stand this it is essential to understand the topography of the land adjacent to the eastern end of the bridge. The ground there at the river bank is higher than it is for severalthousand feet back toward the eastern bluffs. In fact, from the bank of the river a low bottom extends for about four miles to the city of Council Bluiis, which in many places is lower than the level of the immediate bank of the river. The current of the river at the time the bridge was built, and for many years before, ran close to this eastern bank, and in very high water the whole bottom was overflowed, and, on occasions when' it was not so high, a part of the water would break through the eastern bank at ditierent points, and run in currents or channels through this wide bottom. The bottom of the bridge on w-hich the rails were laid was considerably higher than the level of this bank, and of course the eastern approach to it had to be projected a corresponding distance on this bottom to obtain the grade necessary to enable the train to ascend to the level of the rails of the bridge. After the bridge was completed it was found necessary to protect this eastern approach against the overflow of the river by a riprap wall of stone. It also became expedient for. the company to prolong or continue its track for more than a thousand feet, at a considerable elevation above the natural surface of the ground, as a means of checking the currents of these overflows, which would otherwise cut through their track and do it immense damage. This also aided in turning the current or channel to the western or Omaha side of the river. It does not seem to be yet decided how far eastwardly this elevation of the railroad may be profitably projected for these purposes, without reference to its use as an approach to the 494 Eailroad Co. v. Clopper. [Oct. Term, Opinion of tlie court. bridge ; nor how much of it will require a riprap of stone for its protection ; nor how much of this may be profitably done, .though not absolutely necessary. Under these circumstances it was important that the prin- ciples which should guide the jury in deciding what part of this track was the approach to the bridge within the meaning of the contract, and what was mere elevated track to get above high water, and dyke to repel the currents of the overiiow, should be stated to them with as much precision as possible. We are of opinion that this was not done, but that prayers of the defendant were refused which conveyed the true rule on that subject, and others granted, at the request of the plaintifts, which were erroneous. The following instructions, each of which was specifically refused by the court, were, in our opinion, entirely correct, and should have been applied by the jury to the ascertainment of what was the eastern approach to the bridge, intended by the use of that language in the contract: 7. " In determining what was intended to be embraced in the contract, the jury should consider what was the condition of things at the time it was made, and not the condition as developed by the operations of Nature years afterwards, and which was not and could not have been in the minds of the parties at the time the contract was made." Refused by the court. 8. "The contract must be construed and interpreted as it was made and nnderstood at the time of entering into it, unless it has been satisfactorily shown that it was subsequentlj' changed or modified." Refused by the court. 9. "The testimony of experts, who are shown to have had experience in the science of bridge-building and as civil engi- neers, has been admitted, and is entitled to due weight as to whether or not the work spoken of as a dyke is a part of the bridge or approach." Refused by the court. . That the opinion of a practical civil engineer of experience ,in bridge-building is entitled to weight with the jury in decid- 1880.] Railroad Co. v. Clopper. 495 Opinion of the court." ing whether part of this track through the hottom, which had been protected by stone, was so constructed as a dyke against the curreut of water, or as the approach to the bridge, is, we think, too clear for argument. Such a witness would know what is usually meant by the term approach to a bridge much better tlian the average juror, and would have, perliaps, little difficulty in forming a JTist opinion, -when the ordinary juror would have been wholly at a loss. So, also, no reason can be seen for rejecting the seventh and eighth instructions, which were only intended to assert the ordinary rule : that a contract must be construed in the light of surrounding circumstances, as the parties understood it at the time it was made. The reason for rejecting these prayers is found in the fol- lowing instruction, granted at the request of the plaintiffs: "If the jury are satisfied from the evidence that, at the time the contract sued on was executed, no plan or specifica- tions ibr the building of the bridge or its approaches existed, but that the building and completion of the bridge and its ap- proaches were left entirely by the defendant to Mr. Sickles, the chief engineer, who had not, at the time of executing said contract, any definite or fixed plan as to construction and com- pletion of piers or columns and approaches, other than to put in said piers or columns and approaches, and riprap the same with stone to protect the same, as it might subsequently be ascertained to be necessary, and it was subsequently ascertain- ed, while work under said contract was in progress, that it would be necessary for such protection to riprap any or all of said piers or approaches by putting in stone about said piers or columns, or by extending the east approach by building a heavy wall extending back in a northeast direction, as far as • circumstances migVit de^velop a necessity for, then the plain- tifl:'s would be entitled to recover such damage as the proof under instruction may show them entitled, for all stone neces- sary to be used for such purposes; and this right of plaintiffs to so recover would exist and apply to stone yet undelivered, Railroad Co. v. Clopper. [Oct. Terra, Opinion of the court. if necessary for such purposes, as well as stone already" deliv- ered." Under this last instruction the jury was left fairly to infer that if, after the bridge itself was completed and in use, the company should find it expedient, with a view to arrest the overflow of the river bottom, to extend its track across the entire four miles to Comicil^luffs, and protect it by an exte- rior covering of stone, this dyke or wall might be the approach to the bridge within the meaning of the contract, and the stone used in the dyke covered by its terms. Taking the prayers refused and the instructions given, and we are satisfied that the jury were left with a very improper view of what was the approach to the bridge, and with unlim- ited discretion as to time of completion and extent of ti'ack that might be called an approach. We cannot, of course, lay down any precise description of how much of this track was approach, and how much was dyke, and how much ordinary railroad track. We think the three prayers asked by defendant and refused by the court contain the true elements of the problem, and that much weight ought to be given to the views of scientific and practi- cal engineers and builders of bridges. The main charge delivered by the court is very full and apparently very fair, but it nowhere removes or cures the errors we have pointed out; and for these the judgment of the court is reversed and the case remanded, with instructions to set aside the verdict and grant a new trial. Eeversed. 1880.] Whitsitt v. Railroad Companies. 497 Statement of the ease. K L. M'Carthy v. Joseph Alcide Pjiovost et al. Ill a snit for partition of a tract of land, the amount required to give this court jurisdiction is determined by the amount claimed I)y tlie com- pliiinant, and not bj' the total value of the tract to be divided. Appeal from the Circuit Court of the United States for the District of Louisiana. Thomas J. Semmes, for appellant. Henry B. Kelly, for appellees. Waite, C. J. — We have no jurisdiction in this case. The suit was brought to recover one two hundred and fortieth part of certain lands, and for a partition so as to set oif to the ap- pellant in severalty that interest. It is averred in the bill that "the value of the property sought to be partitioned amounts to more than |5,000," but the matter in dispute on this appeal is only one two hundred and fortieth part of the whole property, as that is ail the appellant claims. Our jurisdiction, therefore, depends on the value of that part, which certainly is not shown to be more than $5,000. Dismissed. EicHARD E. WniTSiTT AND James Meskew v. The Union Depot and Railroad Company, The Denver, South Park AND Pacific Railroad Company, et al. Tlio appellate jurisdiction of this coiui is not altered by the act of 1S75, (IK SiMts . 470,) siviiig tile Circuit Courts jui-isdiction of civil suits arising under tlie Constitution and laws of the United States, when the matter in dispute exceeds $500. Appeal from the Circuit Court of the United States for the- District of Colorado. 32 498 White v. National Bank. [Oct. Term, Statement of the case. Amos Sieck, for appellants. Beta M. Hughes, for appellees. Waite, C. J.— Although the act of 1875 (18 Stats., pt. 3, 470, ch. 137) gave the Circuit Courts of the United States original cognizance of suits of a civil nature arising under the Constitution and laWs of the United States when the value of the matter in dispute exceeds $500, it did not change our juris- diction for the review of the judgments and decrees of those courts. That, depends now, as it did, before, on the value of the matter in disptite, which must exceed $5,000. This record does not show in express terms or by fair implication that the value of the property in controversy reaches that sum, and the appeal is, therefore, dismissed for want of jurisdiction. Dismissed. Stephen V. White v. The Miners' National Bank of Georgetovs'n, Colorado, and The Third National Bank OF New York City v. The Miners' National Bank of Georgetown, Colorado. 1. Semhle that an indorseineiit to an indorsee "for acconnt of the hi- dorser" does not transfer tlie title to the negotiable paper, but makes the indorsee a mere agejit for collection, and that its meaning is too plain to allow parol proof or proof of usage to contradict it. 2. Bnt where the indorsee and indorser both appeared from the evidence to think that the title had passed, and the Indorsee paid to the indorser value for tlie paper, the indorsee may recover back the money so paid under a count for money paid to defendant's use. Error to the Circuit Court of the United States for the District of Colorado. S. V. White, plaintift' in error, pro se. 1880.] White v. National Bank. 499 Opinion of the court. W. H. Scott, for the Third National Bank of New York, plaiutifl:" in error. Henry M. Teller, for defendant in error. Miller, J. — Tliis is an action by White, who was plaintiff below and is plaintiff in error, for the sum of |60,000 against the bank. The declaration contains twelve special counts, upon as many drafts drawn by the Stewart Silver Eeducing Company on Thomas W. Phelps, payable in the city of New York to the order of Miners' National Bank of Georgetown, and indorsed by J. L. Brownell, as president of that bank, to S. V. White, and duly protested for non-payment. To these counts is added another, in this language: "And for that also heretofore, to wit, on the 1st day of April, A. T>. 1876, at the said county of Clear Creek, the said defendant was in indebted to plaintiff in |60,000, for so much money by the plaintiff, before that time, paid to the use of said defend- ant at its request, which said sum of money was to be paid to the plaintift" on request," with an allegation of request and refusal. To this declaration the defendant pleaded the general issue and several special pleas, which it is unnecessary to notice. The case was tried before a jury, and plaintiff recovered $15,000 debt and $2,625 damages for interest, on account of three of the drafts, and was defeated as to his claim on account of the other drafts, and on the count for the money paid at defendant's request, and on that ground brings this writ of error. The errors assigned relate to the rulings of the court in the progress of the trial as they are preserved in a bill of excep- . tions. It thus appears that one J. L. Brownell, a partner in the iirm of J. L. Brownell k Brother, doing business as bankers and brokers in the city of New York, was also president of the defendant bank, and interested in the Stewart Silver Eeduc- ing Company during the time of the transactions involved in 500 White v. National Bank. [Oct. Term, Oriinion of the court. this suit; that, as presicleut of the defendant hank, he sold or transferred to plaintiif the several drafts on which this suit is founded, and received of White for the use of his bank the amount of said drafts, less the discount. The drafts wei'e not paid at maturity, but due demand, protest, and notice were made. The three drafts on which plaintiff recovered need not be further noticed. The others were rejected bv the court as evidence against defendant, on account of the form of the indorsement. As they were, in this respect, alike, the form of one will be given here as a specimen of the whole : "$5,000.] Office of the Stewart Silver Eeducing Company, [l. s.], Georgetown, Col., Oct. 25, 1875. Four months after date pay to the order of the Miners' National Bank, Georgetown, Colorado, payable at the Third National Bank, New York city, five thousand dollars. Stewart Silver Reducing Company, By J. Oscar Stewart, President. To Thos. W. Phelps, Esq., Georgetown, Colorado. (Across the face, in red :) Accepted. — Thos. W. Phelps. (Indorsed:) No. . Pay S. V. White or order for account Miners' National Bank, Georgetown, Colorado. J. L. Brown- ell, p't. ' S. -v. White." Because of the words " for account of Miners' National Bank of Georgetown, Colorado," in this indorsement by Brownell, as president of the bank, the Circuit Court ruled that no obli- gation arose out of the transaction, on the part of the hank, to j)ay the draft or return the money, although due demand of the acceptor and refusal to pay was proved, with notice to the bank, and this is the principal question which we are to decide. The plaintiff relies largely on two propositions to establish his right to recover against defendant on this indorsement. The first of these is, that these words are merely directory and capable of explanation ; and when it is shown by parol 1880.] White v. National Bank. 501 Opinion of the court. testimony, as in this case, that the plaintiff bought and paid full vahie for \\\e draft, with the understanding that he wns buying it as eoniniercial paper, with the usual incidents of such a transaction, the indorser is liable in the usual manner, not- withstanding the words we have quoted. The other proposition is, that such is the custona of bankers who deal in such paper in New York, where these drafts are payable, and that the custom must control the construction of the contract. We are not satisfied that either of these propositions is sound. The language of the indorsement is without ambiguity, and needs no explanation either by parol proof or by resort to usage. The plain meaning of it is that the acceptor of the draft is to pay it to the indorsee for the use of the indorser. The in- dorsee is to receive it on account of the indorser. It docs not purport to transfer the title of the paper or the ownership of the money when received. Both these remain, by the reason- able and almost necessary meaning of the language, in the indorser. It seems to us that the court below correctly con- strued the effect of the indorsement to be to make Mr. White the agent of the bank for the collection of the money; If this be a sound view of the legal effect of the written in- dorsement, neither parol proof nor custom can be received to contradict it. But we are aware of the necessity of proceeding with great caution in a case of first impression in regard to questions affecting commercial transactions, and we do not, therefore, decide this one, because we do not think it absolutely neces- sary to the case. For assuming this to be correct, we think the plaintiff' was still entitled to recover more than he did. The colirt below seems to have paid but little attention to the issue on the count for money paid to the use of defendant. It appears distinctly by the evidence, and is uncontradicted, that the money paid by plaintiff' on account of these drafts was placed to the credit of the defendant with its correspond- 502 White v. National Bank. [Oct. Term, Opinion of the court. ing bankers in ISeyv York, and paid out on checks of the de- fendant bank, so that there is no question that the defendant received the money. There is also no question but tliat plain- tifl' thought he was buying these drafts and that they became his property by their deliver}' to him. It is also evident that Brownell, the president of the bank, thought he was selling him the drafts, and thei'e is evidence that neither White nor Brownell noticed the restrictive words of the indorsement. But if the court below was correct in holding that the indorse- ment — the evidence in viriting of what the parties did — only made White the agent of the bank, and left the bank the owner of the drafts, then both White and Brownell were mistaken, and the money was paid and received under a mutual mistake. If White paid his money as purchase-money of the drafts, he paid it without anj' consideration, for he did not purchase the drafts. He only burdened himself with the duty of collecting the money for the bank, and the bank received and used his money without giving him any consideration for it. So, also, if White did not become the owner of the drafts, and if, when he should collect the money on them, he would hold it, in the language of the indorsement, "for the account of the bank," the jury might have been left at liberty to presume that the money which he paid was a loan or advance on the security of the paper delivered to him at the time. Either of these views of the transaction would justify a recovery under the money count, in which the delivery of the money and the delivery of the drafts, with the qualitied indorsement, would be evidence of the payment and receipt of the money and the circumstances which attended it. This indorsement is treated by counsel here as an assignment of the paper without recourse, in which the title to the paper passed, but the i-ight to recourse to the assignor was cut ofF. But this is evidently an error. If the court below was correct, neither the title to the paper nor the right to the money under it passed. The only effect was to justify the acceptor in paying to the indorsee for the account of the bank. The legal etiect of 1880.] White v. National Bank. 503 Opinion of the court. the transaction, as evidenced by the writing, was merely to ena- bte White to collect the money for the bank. Though a restricted indorsement, it was no assignment at all. It is not, therefore, a contradiction or a varying of the meaning of the written in- strument to prove that in the delivery of this paper to White he and the bank were under a mistake as to the effect of it, or thlat he paid this money to the bank without any consideration , or that he advanced money to the bank in the idea that he was to be reimbursed out of the draft when collected. The instructions given by the court, and the refusal of the prayer of plaintiff, fairly raised this question. All the drafts, except the three which had no such indorsement, were excluded from the jury. The jury were told that nothing else was before them. The thirteenth instruction asked by plaintiff and refused by the court distinctly affirmed that if Brownell obtained from plaintiff sums of money on accou-nt of the drafts, which the court had refused as evidence, which mouey was placed to the credit of defendant in a New York bank, and afterwards drawn by defendant, the defendant was liable for such money. The judgment of the Circuit Court is reversed and the case remanded, with directions to set aside the verdict and grant a new trial. Eeversed. The Thikd jSTational Bank of New Yobk ^ The Miners' Nationaij Bank op Colorado. ) The action in the present case is brought against the same defendant on indorsements of drafts precisely similar to the indorsements in the case just decided of White v. The Miners' National Bank, though by a different plaintiff. There is in that case the same money count joined with special counts on the drafts, and the same evidence that the money came to the use of the defendant. In this case, however, the parties waved a jury, and the court found no facts, but rendered a general finding for the defend- 504 The Florida Eailroad Cases. [Oct. Term, Syllabus. aut. We have had some difficulty, therefore, m disturbing the judgment, as there is no charge to the jury and no iustructicfiis asked and refused. A bill of exceptions, however, embodies the evidence, and shows that the court refused to receive the drafts in evidence, although the accompanying evidence of the receipt of the money by defendant, and its payment by plaintiff, was the same as in the other case. To this ruling there was an exception. We are of opinion that the drafts, the peculiar indorsement, and the payment of the money by the plainfitf bank, and its receipt and use by the defendant bank, were each and all parts of a transaction admissible as evidence of money piaid by plain- tiff to the use of defendant, to be repaid on request, and that the court erred in rejecting any part of it. The judgment of the Circuit Court is therefore reversed for that error and the case remanded, with directions to grant a new trial. Kevehsed. The Florida Central Eailroad Company v. J. Fred. Schutte ET AL. ; The Jacksonville, Pensacola and Mobile Rail- road Company v. J. Fred Bchutte et al. ; The Western North Carolina Railroad Company v. George F. Drew, Governor, &c.. The Jacksonville, Pensacola and Mobile Railroad Company, et al. 1. A corporation whose funds are embezzled and invested b-y its president ill stock o£ another corporation, becomes by such transaction the equi- table owner of such stock. 5. As such equitable stockholder, and because of liaving entered into an anangcment to share in tlie proceeds of sale of State bonds given by the State to the corporation in wliich it so held such stock, in exchange for the bonds of sucli corporation, it Is estopped from setting up title to such corporation against tlie hona-fide holders of sucIi Stale bonds. :3. The State of Florida issues bonds wliich it gives to a corporation in exchange for the bonds of tlie corporation, intending to lend its iCiedit.to the corporation. These State bonds contain an indorsement 1880.] The Florida Railroad Cases. 505 Opinion of the court. that the bniuls of the corpnriitioii are deposited with the State as ftu'- tlicr security to tlie liolilers of the State bonds. Under tliese cirouin- stalici's, iiltlioiis'i"! the State l)oiid.-i are uncoiistitiitional, tlie corpora- tion is estopped from setting up their invalidity against hona-Jide holders. 4. Contracts created by or entered into nnder the authority of statnte.s, are to be interpreted according to tlie language used in each particu- lar case to express the obligation assumed. o. Although the above-mentioned State bonds are unconstitutional, j-et the act of January 28, 1870, of tlie Florida Legislature, while inicon- stitutioual in regard to the issue of State bonds, creates a valid statu- tory lien in favor of the holders of sucli State bonds against the Jack- sonville, Pensaoola and Mobile Companj', which will be enforced against the company for their benefit. 6. 1'his coui-t, wliile possibly not bound by it, will attach peculiar weight to a deei.-ion of the court of last resort of a State on a question of local law depending on tlie peculiar condition of local affairs ; for instance, a decision that the authority of 'a railroad under a State statute to issue ceitain bonds was complete. 7. Although the above-mentioned State bonds are void as to the State, yet, being valid as to the corporation issuing them, and the corpora- tion being in legal effect their indorser. the party holding them is not limited in his recovery to the amount actually paid for them, but may recover their face value. Appeals from the Circuit Court of the United States for the Northern District of Florida. P. Phillips and W. A. Mxury, for the Florida Central Rail- road Company. S. F. Phillips and George F. Edmunds, for the Florida Cen- tral and Western Division Companies. James M. Baker, for the Florida Central and the Jackson- ville, Pensacola and Mobile Railroad Companies. James Baker, for the Jacksonville, Pensacola and Mobile Railroad Company. Joseph B. Stewart, for the "Western Division Railroad Com- pany. 506 The Florida Railuoad Cases. [Oct. Terra, Opinion of the court. W. G. M. Davis, Mail H. Carpenter, C. D. Willard, Wayne Mc Veagh, and The.o. F. H. Meyer, for the appellees. Waite, C. J. — These cases, although separate in form, are so connected in their facts that they may properly be consid- ered and decided together. The facts are these: The Florida, Atlantic and Gulf Central Railroad Companj', incorporated by the General Assembly of Florida in 1853, built a railroad from Jacksonville to Lake City. The Pensa- colaand Georgia Railroad Company, also incorporated during the same year, built a road from Lake City through Tallahas- see to Quincy, in the direction of Mobile, with a branch to Monticello; and the Tallahassee. Railroad Company, incorpo- rated at a somewhat earlier date, built another road from Tal- lahassee to St. Mark's. Each of these companies became in- debted to the State of Florida under the provisions of the internal improvement law, and, as a consequence, the road of the Florida, Atlantic and Gulf Central Company was sold, on the 4th of March, 1868, by the trustees of the internal im- provement fund, under the authority of law, to William E. Jackson and his associates; that of the Pensacola and Georgia Company, on the 6th of February, 1869, to F. Dibble and his associates; and that of the Tallahassee Company on the same day and to the same parties. The road from Jacksonville to Lake City was paid for in , full, and a conveyance in due form executed to the purchasers, who, on the 29th of July, 1868, were incorporated by the General Assembly of the State under the name of the Florida Central Railroad Company, and given all the powers and franchises of the Florida, Atlantic and Gulf Central Company; They were also authorized to fix the amount of the capital stock of the company and the number of shares into which it should be divided. In this way the capital was put at |550,- 000, with five thousand five hundred shares. Of these shares George W. Swepson afterwards became the purchaser of four thousand three hundred and seventy, which he paid for with 1880.] The Florida Raileoad Cases. 507 Opinion of the court. money in his hands belonging to the Western Division of the Western ]!:7orth Carolina Railroad Company, a North Carolina corporation, which he frandulentlj' diverted from the use to which it had been appropriated by that company. Swepson also purchased, with the funds of the same North Carolina corporation, bonds of the Pensacola and Georgia and Tallahassee Companies to the amount of 960,000, or there- abouts, and on the 24th of April, 1869, he entered into a con- tract with the purchasers of the I'oads of those companies by which he was to deliver them these bonds to use in making their payments of purchase-money, and they, as soon as they could get the necessary authority from the Legislature, were to raise money by a mortgage on the property and pay him what he had advanced to buy the bonds, with certain commis- sions and attorney's fees, and $100,000 in addition. The con- tract contemplated an incorporation of the purchasers after the manner of the Florida Central Company, with a distribution of one-third of the stock to Swepson. As security for the pay- ment of the sum agreed to be paid, the bonds issued under the contemplated mortgage were to be disposed of in a particular way, and Swepson was to be , given certain privileges in the election of directors. Under this arrangement Swepson handed over $960,300 of Pensacola and Georgia and Tallahassee bonds to the purchasers; but, after these bonds had been applied in the way contemplated, there still remained a balance of the pur- chase-money amounting to $472,065 to be paid. Deeds con- veying the property to Dibble, for himself and his associates, were executed in due form, but their delivery was withheld on account of this default in payment. Dibble and his associates being unable to raise the money, Swepson, by putting off on the trustees of the improvement fund a worthless check that was never paid for the amount that was due, got possession of the deeds, and had them duly recorded April 22, 1869. On the same day Dibble, for himself and his associates, party of the first part, executed a paper which on its face purported to con- vey the I'oads to Swepson, " said party of the second part, in 508 The Florida Eailroad Cases. [Oct. Term, Opinion of the court. trust for the express purpose of enabling said party of the sec- ond part — which he herebj' agrees and binds hir'nself to do — to convey the same to that incorporation, consisting or to consist as incorporators of said F. Dibble and his associates, as soon as said Dibble and his associates shall have granted to them such a similar relief as the Legislature of the said State of Flor- ida granted to William E. Jackson and his associates by act for relief of William E. Jackson and his associates, approved July 29, 1868, and also for the further purpose of securing said party of the second part in all advances made, as specified and agreed upon in the said agreement between these parties, executed and dated March 26, 1869, and the advancement, as aforesaid, of said sum of four Viundred and seventy-two thousand and sixty- five dollars, until such time as said relief shall have been granted and said party of the second part shall have conveyed said property to said incorporation, as hereinbefore prescribed." This instrument was never acknowledged or recorded. On the 24th of June, 1869, the proposed act of incorpora- tion was obtained, by which Dibble and his associates, as pur- chasers of the roads, were made a body corporate under the name of the Tallahassee Eailroad Company, to hold, operate, and enjoy the property purchased, with all the powers, privi- leges, and franchises of the Pensacola and Georgia and the original Tallahassee companies, and with power to issue bonds secured by mortgage: "Provided, That any deed of trust, mort- gage, or conveyance, bond or bonds, or security which may have been executed, made, created, or contracted for, as a lien on said railroad or otherwise, by said Franklin Dibble, in be- half of himself and his associates, prior to the passage of this act, shall be valid and effectual to all intents, either at law or in equity, as a lien or a mortgage or security on said railroad, as if the same had been made by virtue of this act, and shall in nowise be affected by any provisions thereof." (Sec. 6.) The new Tallahassee ' Company was duly organized under this charter, and took possession of and operated the roads. Afterwards, to remove all doubts as to the title of the corpora- 1880.] The Florida Eailroad Cases. 509 Opinion of the court. tion to the property of the old companies, Dibble, for himself and his associates, at some time during the year 1870, executed a paper which purported to be a conveyance in due form for that purpose, by which he professed to relinquish and quit- claim to the corporation all his rights. This paper was not acknowledged, and was not in fact a legal conveyance of the property'. Ko conveyance in form was ever executed by Swep- son ; neither has he at an}' time, so far as appears, attempted to exercise any rights under the conveyance or transfer which was made to him. On the 24thof June, 1869, an act was passed by the General Assembly of Florida to " perfect the public works of the State." By this act, " in order to secure the speedy completion, equip- ment, and maintenance of a connection by a railroad between Jacksonville, on the Atlantic coast, and Pensacola, on the gulf coast, and Mobile, in Alabama," George W. Swepson, Milton S. Littletield, J. V. Sanderson, 'J. L. Ee Qua, William II. Hunt, their associates, successors, and assigns, were constituted a body pohtic and corporate under the name of the Jacksonville, Pen- sacola and Mobile Itailroad Company. This company was authorized to build a railroad from Quincy to the Alabama State line, and there connect with any road running to Mobile, and to consolidate with the several companies owning roads from Quincy to Jacksonville, from Tallahassee to St. Mark's, and the branch to Moiiticello. The original charter was some- what amended on the 28th of January, 1870, after which sec- tions 9, 10, 11 of the original charter, and section 4 of the amended charter, were as follows: " Sec. 9. In order to aid the said Jacksonville, Pensacola and Mobile Eailroad Company to complete, equip, and main- tain its road, and to aid in perfecting one of the public works embraced in the internal improvements of the State, the Gov- ernor of the State is hereby directed to deliver to the president of the said company coupon bonds of the State to an amount equal to sixteen thousand 'dollars per mile for the whole line of 510 The Florida Kailhoad Cases. [Oct. Term, Opinion of the court. road and length of railroad owned by or belonging to said Jacksonville, Pensacola and Mobile Railroad Company, in ex- change for first-mortgage bonds of said railroad company, of the denomination of one thousand dollars, when the president thereof shall certify upon his oath that the road or parts d' road for which he asks for an exchange of bonds is completed, and is in good running order. The said bonds shall be of the denom- ination of one thousand dollars, signed by the Governor, coun- tersigned by the treasurer, sealed with the great seal of the State, shall bear eight per cent, interest, payable semi-annually, and shall be payable to bearer. They shall be dated on the first day of January, A. D. 1870, and shall be due thirty years thereafter, and principal and interest shall be payable at such place in the city of New York as the Governor shall designate. The coupons for interest shall be payable to bearer, and shall be authenticated by the written or fengraved signature of the treas- urer: Provided, however, That when the Jacksonville, Pensacola and Mobile Railroad Company shall or may determine to pay the interest in gold for or upon their bonds or the bonds des- ignated in the tenth section of an act entitled ' An act to per- fect the public works of the State,' approved June 24, J 869, upon giving notice to the Governor of such intention, then the State bonds aforesaid and the coupons for interest on said bonds shall be payable in gold, notice of which shall be given by the Governor in some paper pubhshed in the city of New York and at the capital of this State, to be designated by the Gov- ernor. " Sec. 10. In exchange for the bonds of the State above de- scribed, the president of the company shall deliver to the Gov- ernor of the State coupon bonds of the company, bearing a like rate of interest, payable to the State of Florida, signed by the president, sealed with the corporate seal; coupons payable to State of Florida, authenticated by the written or engraved signature of the president. The bonds shall be of such denom- inations, not less than one thousand 'dollars, as the said com- 1880.] The Florida Eailroad Cases. 511 Opinion of tho oonrt. psmy maj' choose, and principal and interest shall he payable at the same time and place as the aforesaid State bonds. " Sec. 11. To secure the principal and interest of the said company bonds, the State of Florida shall, by this act, have a statutory lien, which shall be valid to all intents and purposes as. a first mortgage duly registered, on the part of the road for which the State bonds were delivered, and on all the property of the companj', real and personal, appertaining to that part of the line which it may now have or may here- after acquire, together with all the rights, franchises, and powers thereto belonging; and in case of a failure of the com- pany to pay either principal or interest of its bonds, or any part thereof, for twelve months after the same shall become due, it shall be lawful for the Governor to enter upon and take pos- session of said property and franchises, and sell the same at public auction — after having first given ninety days' nolice by public advertisement in at least one newspaper published in each of the following places : the city of New York, in the State of New York; the city of Savannah, in the State of Georgia, and the city of Tallahassee, in the State of Florida — for lawful money of the United States, and" for nothing else, ej^cept that the State, for its own protection, may become the purchaser at said sale, and may pay on said purchase any evi- dences of indebtedness the State may hold against said roads, which purchase-money or said evidences of indebtedness shall be paid on the day of sale into the treasury of this State, or within ten days thereafter; and all moneys arising from said sale and paid into the treasury of this State, as hei'etofore pre- scribed, shall be promptly and exclusively applied to the pay- ment and satisfaction of the bonds issued by the State of Florida under this act; and in case the holders of said bonds do not present them for redemption within ninety days after said sale, the treasurer shall invest the same, or any part thereof which may be remaining in his hands, in the securities of the United States, to be held by the State of Florida, as trustee for 512 The Florida Railroad Cases. [Oct. Term, Opinion of the court. the bondholders, until said bondholders shall demand the same, upon which demand the treasurer shall immediately tarn over or pay said securities to the liondholders. The purchaser or purchasers of said road shall be. b}' said sale possessed of all the rights, privileges, and franchises of said defaulting com- pany, together with the franchise of use and being a body politic, and the Governor shall, upon the payment of said pur- chase-money into the treasury of this State as above provided, immediately cause the purchaser or purchasers of said road at said sale to be placed in the actual possession, use, and enjoy- ment thereof, and cause all the books, papers, and real and personal property of said company, of every description, to- gether with its franchise of use and being a body politic and corporate,- to be turned over to said purchaser or purchasers; and the purchaser or purchasers of said road shall be by said sale possessed of all the rights, privileges, and franchises of said defaplting company, together with the franchise of use and being a body politic and corporate, and may use any new corporate name they see lit, and make and use a new seal upon signifying their action in writing to the Governor, and thereafter may exercise all the rights of a body corporate and privileges thereof, and of said defaulting company, under said new name, for the term of thirty-tive years, to date from the time of purchase as aforesaid. That any such sale shall be rati- fied by the Legislature before the same shall become effective. " Sec. 4. That the Governor shall, for the purpose of further aiding said Jacksonville, Pensacnla and Mobile Railroad Com- pany in the speedy construction of its road, deliver to the president of said company coupon bonds of this State, of the same character as those above described in this act, to the amount of sixteen thousand dollars per mile, upon receiving for and from the president of said company tirst-mortgage bonds of like amount on any part. or portion of the road be- tween Quincy and Jacksonville: Provided, however, The State bonds under this section shall not be exchanged for first-mort- 1880.] The Florida Railroad Cases. 513 Opinion of the court. gage bonds for a greater length than one hundred miles of any part of railroad between Quiiicy and Jacksonville: Pro- vided, The said railroad company or companies shall not issne first-mortgage bonds to a greater amount than sixteen thousand dollars per mile." Under the authority of this act the new Tallahassee Company was consolidated with the Jacksonville, Pensacolu and Mobile Company May 25, 1870, by the name and having the corpo- rate powers of the Jacksonville, Pensacola and Mobile Kailroad Company, with a capital of $6,000,000, divided into 60,000 shares. Previous to this time M. S. Littletield had succeeded to all the rights of Swepson in these several transactions, and in the distribution of stock in the consolidated company he was given 38,433 shares of the agreed capital. He represented 9,930 out of the 10,000 shares at the meeting of the stockhold- ers of the Jacksonville, Pensacola and Mobile Company which voted for the consolidation, and 17,998 of the 30,000 shares of the Tallahassee Company voting to the same effect. The Florida Central Company never entered into the consolida- tion, and the consolidated company', therefore, only became the owner of the roads west of Lake City. • After the consolidation was perfected the Jacksonville, Pen--- sacola and Mobile Company executed its bonds, payable to the State, for $3,000,000, as allowed by section 10 of its. chisirter, and received in exchange bonds of the State fm:.thfi same amount, such as were provided for in section 9, andiin. the following form : "United States of America. "No. .] State of Florida. [No. "It is hereby certified that the State of Florida justly owes to , or bearer, one thousand dollars, redeemable in gold coin of the United States, at the Florida State agency, in the city of New York, on the 1st day of January, 1900, with inter- est thereon at the rate of eight per centum per annum, payable half-yearly at the said Florida State agency, in gold, on the 1st days of July and January in each year, from the date of 33 , 514 The Florida Eailroad Cases. [Oct. Term, Opinion of the court. this bond and until the principal be paid, on surrendering the proper coupons hereto annexed. "Tallahassee, January 1, 1870. Harrison Eeed, Governor. " [FLORIDA great SEAL.] 8. B. CoNNER, Treasurer. "Issued in accordance with act of the Legislature of Florida, approved January 28th, 1870. "Form of Coupon. "The State of Florida will pay to bearer forty dollars in gold, at the State agency, in the city of New York, for inter- est due , on bond for $1,000. "No. . S. B. Conner, Treasure}-. "Indorsement. "State of Florida. "No. .] THIRTY-YEAR eight PER CENT. BOND. [$1,000. "Payable January 1st, 1900. Interest payable 1st July and January, in gold, at Florida State agency, in the city of New York. "This bond is one of a series issued in aid of the Jackson- ville, Pensaeola and Mobile Kailroad Company, to the extent of $16,000 per mile upon completed road. The State of Florida holding the tirst-mortgage bonds of said railroad company for a like amount, as further security to the holder hereof. "Harrison Keed, Gocernw of Florida." These bonds of the State, thus indorsed, were put in the hands of Littlefield, the president of the company, to be dis- posed ofj and he, under an arrangement previously made with S. W. Hopkins & Co., of New York and London, handed the bonds over to them for sale. Some time in the spring of 1870 Littlefield, who was at the timepresidentof the Jacksonville, Pensaeola and Mobile Com- pany, and a director in the Florida Central, caused a million of dollars of the bonds of the last-named company to be printed in New York, and signed there by one 11. IT. Thompson as treasure!-- of the company. These bonds were made payable to the State, and purported to be executed under the authority of the act of January 28, 1870, to amend the act of June 24, 1869, " to perfect the public works of the State," and given in 1880.] The Florida Eailroad Cases. 515 Opinion of the court. exclmiige for bonds of the State to aid the Jacksonville, Pen- sacoia and Mobile Company. After having been signed by Thompson, Ihey were taken by Littletield to Washington, where they were signed by Swepson as president of the com- pany. Afterwards the seal of tlie company was put to them, but, undoubtedly, in an irregular and surreptitious way. It is apparent, also, from the evidence, that when Thompson signed the bonds as treasurer, he had not been formally elected to fliat office by the directors; but at a meeting of the directors, on the 25tb of May, Littletield stated that Swepson, the late president, had appointed Thompson as secretary and treasurer of the com- pany tor the past year, and on his motion this action of the president was approved. On the 30th of May, 1870, an agreement was entered into between Littletield and one Edward Houston, both stockhold- ers of the Florida Central Company, by which this million of dollars of bonds was put in the hands of Houston as collateral security for a debt from Littletield to him, and on the 2d of June, at a meeting of the stockholders of the company, the following resolutions were unanimously adopted : "Resolved, That bonds to the extent of sixteen thousand dol- lars per mile be issued by this company, which bonds shall be a first lien or mortgage on the Florida Central Railroad, its equipments, franchise, road-bed, work-shops, and depots, ex- cepting, however, the town lots in the city of Jacksonville not used for depot purposes. "And whereas the late president, George "W". Swepson, caused to be prepared bonds to be issued by this company prepariltory to an order of the board of directors to that eti:ect, and which bonds were signed by said Swepson as president of this com- pany and countersigned by H. H. Thompson, treasurer: ".Be it therefore resolved. That the said bonds so signed by said Swepson and countersigned by said Thompson, to the ex- tent of sixteen thousand dollars a mile, be, and they are hereby, adopted as the bonds to, be issu-ed under the foregoing resolu- tion, and that such bonds when so issued shall be a first lien or mortgage on the said Florida Central Eailroad, its equip- 516 The Florida Eailroad Cases. [Oct. Term, Opinion of the court. nient, franchise, road-bed, work-shops, and depots, excepting the lots in Jacks'^nville not used for depot purposes. "i?e it further resolved. That said bonds shall be placed in the hands of Edward Houston for the purposes agreed upon bj' an arrangement between himself and Milton S. Littlefield, who is the owner of nearly all the stock in this company, which bonds or their proceeds are to be held and applied according to the terms of said arrangement, except the proportion thereof ap- plicable or apportionable to the stock owned by other parties, and upon the satisfaction otlierwise of the terms of said ar- rangement with said Houston, the said bonds are to be bj- him transferred to Milton S. Littlelield, or according to his direc" tion, to the extent of the stock owned by him at the time. "Resolral farther. That the directors be directed to carry the foregoing resolutions into eti'ect." On the 7th of June, after these resolutions were passed, the original agreement between Littleticld and Houston was modi- fied so as to provide for a substitution and exchange of the bonds of the State for the bonds of the company, and a sale of the bonds of the State by Hopkins & Co., they to pay from the proceeds certain sums to ditferent parties, and the remain- der, if any, to Littlelield. So far as ai^pears nothing was to go to the Jacksonville, Pensacola and Mobile Company. Afterwards, on the 21st of November, 1870, at a meeting of the directors of the company, a report was received from a committee appointed to take into consideration the past issue of bonds, as follows : " The committee finding that the bonds signed by G. W. Bwepson, president, and countersigned by H. H.. Thompson, treasurer, are in such form as that Ihey cannot be used to carty out the intention of their issue when they were adopted, report the following resolution in respect thereto: "Resolved, That the resolution adopting the bonds to be issued by the company, signed by George W. Swepson, pres- ident, and H. H. Thompson, treasurer, at h meeting of the board of directors held on the 2d of June> A. D. 1870, be, 1880.] The Florida Kailroad Cases. 517 Opinion of the court. and the same is, herebv resciudecl, and that said bonds be de- stroyed." Tlie resolution as reported was unanimously adopted, but the bonds were never destroyed, and Houston, on the 11th of Januarj-, 1871, delivered them to one Coddington, upon cer- tain trusts, and he immediately exchanged them for State bonds, which he took clandestinely to New York, and after- wards, on the 18th of April, placed in the hands of Hopkins & Co. for sale. Ou the 13th of April, 1871, at a meeting of the stockholders of the company, the following resolution was passed : "Resolved, That ]Edward Houston is authorized to place the bonds referred to in the preamble and resolutions of the stock- holders, adopted June 2, 1870, in the hands of S. W. Hopkins & Co., for the purposes mentioned in said resolutions, subject to the same exceptions therein expressed with respect to the proportion thereof applicable to the stock owned by other par- ties, and according to the same terms therein mentioned." These State bonds were in the same form as those exchanged with the Jacksonville, Pensacola and Mobile Company, and they had upon them similar indorsements. On the 24th of March, 1870, J. L. Henry, N. W. Woodiin, W. P. Welsh, W. Q. Candler, and W. W. EoUins were ap- pointed by the General Assembly of North Carolina a com- mission " to examine and fully investigate the condition and affairs of the Western Division North Carolina Railroad Com- pany, as far as it concerns the administration of G. W. Swep- son, late president thereof, and to make a full and final settle- ment of all accounts and liabilities of said president, G. W. Svvepson, in connection with said company," and this com- mission, on the 16th of April, 1870, entered into the following agreement : ^^Memoraiidum of agreement and settlement between the Florida Central Railroad Company, George W. Swepson, president, and the Jackson- ville, Pensacola and Mobile Railroad Company, Milton S. Littlejield, president, and Milton S. Littlejield, majority owner of the stock of said companies, and also of the stock of the Tallahassee Railroad Company, of the first part, and the Western Division of the Western North Car- 518 The Florida Railroad Cases. [Oct. Term, Opinion ol the court. olina Railroad Company, represented hy N. W. Woodfin, W. G. C(in- dler, W. Pink Welsh, and W. W. Rollins, commissioners appointed hy an act of the Legislature of North Carolina, approved hy the stock- holders of said corporation, of the second paH, witnesseth : "That whereas Georg"e W. Svvepsoii, late president of the Western Division of" the Western North Carolina Eailroad Company, made certain investments of the fimds of said com- ]Dan_y in securities of and interests in the said Florida Central Railroad, Jacksonville, Peusacola and Mobile Railroad, and the Tallahassee Railroad, of the said State of Florida, as per report made by the said George W. Swepson to the said com- missioners, amounting in the aggregate to the sum of one million two hundred and eighty-seven thousand four hundred and thirtj'-six dollars and three cents, to bear interest from the 1st day of November, 1869, at the rate of eight per cent, per annum ; and whei'eas the said George W. Swepson heretofore conveyed to the said Milton S. Littletield, subject to the pay- ment of the above-recited claim, his interest in the above- recited railroads ; and whereas the said Littletield has received authority from the Ijegislature of the State of Florida and the several railroad companies to receive bonds to be issued by and for account of the several railroad companies, which bonds are to be exchanged for the bonds of the State of Florida to be issued for the purpose of aiding the finances of the said several railroad companies, all of which bonds are now in a .state of preparation ; and whereas the said Milton S. Littletield has made a contract with S. W. Hopkins & Co., No. 71 Broad- way, for the disposition of said bonds as the same may be issued, the proceeds of the issue of the bonds of the Florida Central Railroad Company, of the said Stateof Florida, amount- ing to nine hundred and sixty thousand dollars, are to be ap- plied to the payment of the existing liabilities of the said sev- eral railroad companies, including the sum of one hundred and fifty thousand dollars to be paid to the commissioners ^foresaid, for the purpose of paying existing liabilities of the ^aid Western Division of the Western North Carolina Railroad Oompany : ' "It is understood and agreed by the parties of the first and 1880.] The Florida Eailroad Cases. 519 Opinion of the court. second part that the proceeds of the sale of the said bonds so to be issued hy the said Florida railroad companies and the said State of Florida, are to be equally divided, dollar for dol- lar, between the Western Division of the Western North Car- olina Railroad Company and the said Florida railroads,* and as the commi.ssioners aforesaid receive by this first sale of bonds only the sum of $150,000, it is further understood and agreed that out of the proceeds of the sale of the issue of the bonds of the Jacksonville, Pensacola and Mobile Railroad there is first to be received by the commissioners aforesaid a sura sufficient to be equal to the amount received by and on account of the said Florida railroads, and then an equal amount is to be re- ceived by the said commissioners and the said Florida railroads, dollar for dollar, until the entire amount of $1, 287,0-36. 03, with interest at 8 per cent., as aforesaid, being the sum reported by the parties of the first part as due to the Western Division of the Western North Carolina Railroad is fully paid. "It is further understood and agreed by the parties of the first and second parts that all the interest owned or claimed by the said parties of the. first part, George W. Svvepson and Milton S. Littletield, or which they as individuals have a right to control in the said Florida railroads, are herebj' pledged for the faithful fulfillment of this contract, without the right on the part of any party to interfere with our management or control of the affairs of the road. (Signed) •' George W. Swepson, "Pres't Fla. Cent. R. R. Co. "M. S. LiTTLEFIELD. " M. S. LiTTLEFIELD, "PresH /., P. ^ M. R. R. Co. "K W. WOODFIN, " W. W. Rollins, "W. G. Candler, "W.P.Welsh, "Witnesses: . Commissioners. " M. W. Ransom. "E. E. SWEPSON." 520 The Florida Kailroad Cases. [Oct. Term, Opinion of the court. While these dift'ereiit proceedings were going on, and for a very considerable time afterwards, strenuous efforts were made by some parties interested to prevent a sale of the bonds of the State which had thus been put out. Notices of the fraud were extensively published both in this co'iutry and in Europe. Let- ters were written to those engaged in putting the bonds on the market, and suits were begun, but notwithstanding all this we are entirely satisfied from the evidence that twenty-eigiit hun- dred or thereabouts of bonds given in exchange for those of the Jacksonville, Pen?acola and Mobile Compauj", and two hundred and six given for those of the Florida Central Com- pany wei-e actually sold and are now owned by bona-fide pur- chasers, most or all of whom are citizens of Holland. "We have reached this conclusion without the aid of the depositions taken in Amsterdam, and which were excluded in the court below. There cannot be a doubt that the Governor of Florida was active in promoting the sale, as was also, to .some extent, the chairman of the commission appointed by the General As- sembly of North Carolina. The bonds were taken at once to London, and from there put on the market in Holland, where most or all of the sales appear to have been made. The bonds were undoubtedly steeped in fraud at their inception, but they were nevertheless apparently State bonds on the market in a foreign country, among a people largely' unacquainted with the English language, and offering tempting inducements by reason of their liberal interest to those who were seeking in- vestments. To promote their sale, those interested in the scheme kept a part of the proceeds to meet the interest for a time as it matured. Under these circumstances it is easy to see how, in the course of two or three years, with the help of rskillful managers, the amount now out would be found in the hands of persons who believed they were holding a good and ;safe investment. At any rate, upon the facts as they are pre- jgented to us, we must hold that in this suit the present owners .of the bonds occupy the position of purchasers for value and in good faith, and are entitled to relief accordingly. 1880.] The Florida Eaileoad Cases. 621 Opinion of the court. In March, 1872, the trustees of the internal improvement fund of Florida commenced a suit in Duval Circuit Court, Florida, against the Jacksonville, Pensacola and Mobile Corn- pan}' to recover the balance that was due upon the purchase of the Pensacola and Georgia and Tallahassee roads, for which the fraudulent check was given by Swepson, and to enforce an equitable lien they claimed to have on the pi'operty as security for the payment. After this suit was begun Daniel P. Hol- land recovered a judgment against the company and levied upon and sold its railroad under execution, he himself be- coming the purchaser and getting into possession. He there- upon was made a party to the suit of the trustees, and in his answer claimed to be the owner of the road, free of all liens in favor of the trustees or of the State on account of the bonds exchanged for the company's bonds under the amended char- ter. At its January Terra, 1876, the Supreme Court of the State decided in that case that the title which Holland took by his purchase was subject to the prior liens on the property, and that the bonds of the State were unconstitutional and void, but that the bona-fide holders of the State bonds were entitled to the benefit of the statutory lien to secure the company bonds which were given in exchange for the State bonds. This case is reported in the 15th volume of Florida Keports, pp. 455 to 549. In March, 1872, the State of Florida instituted another suit in the Duval Circuit Court against the Florida Central Rail- road Company and others, alleging a default in the payment of the interest due on the bonds of that company given in exchange for the bonds of the State, and seeking to enforce the statutory lien by sale and an application of the proceeds to the holders of the bonds of the State. To this suit the company answered, setting up to some extent the frauds that are complained of in the present ease, and further averring that the bonds of the State were unconstitutional and void and that the railroad bonds were not a lien. This suit also went to the Supreme Court of the State on appeal, and it was 522 The Florida Eailroad Cases. [Oct. Term, Opinion of the court. there decided, at the January Term, 1876, (1) that the State bonds were unconstitutional ; (2) that the Florida Central Com- pany was authorized by the act of January 28, 1870, to issue the bonds held by the State, and that thereby a first lien was created on the road of the company in favor of the bomi-fde holders of the State bonds ; (3) that there were no such circum- stances connected with the issue, delivery, and exchange of the bonds as would excuse the company from their payment to bona-fde holders; but (4) that there was no proof in that case showing that any of the State bonds were actually so held. This case is reported in the same volume of reports, pp. 690 to 732. Afterwards, at the January Term, 1878, in the case of the Trustees of the Improvement Fund against the Jack- sonville, Pensacola and Mobile Company, the same court re- peated its decision that the State bonds were unconstitutional and that the statutory lien was good in favor oibona-fide hold- ers. The court also, in that case, established the lien of the trustees on the roads of that company, prior in right to all others, as security for the payment of the balance dne on the sales under which the present compan}' got title to its roads. The amount due, as found bj' the court below in its decree, is $661,845.55, as of April 2, 1874. This case is reported in the 16th volume of Florida Keports, pp. 708 to 733. After some of these decisions, and on the 30th of December, 1876, the holders of the State bonds represented in the present suits, and having 2,751 of the Jacksonville, Pensacola and Mo- bile issue, and 197 of the Florida Central, united, and through a committee applied to the Governor of the State to seize and sell the roads under the statutory liens for their benefit. Com- plying with this request, the Governor advertised the roads for sale, and thereupon the Western Division of the Western North Carolina Railroad Company filed two bills in the Circuit Court of the United States for the Northern District of Florida, one to enjoin the sale of the Florida Central road, and the other that of the Jacksonville, Pensacola and Mobile Company. 1880.] The Florida Eailroad Casks. 523 Opinion of the court. A preliminary injunction having been granted and the sale stopped, J. Fred. Sclintte and others, representing the State bondholders, tiled their bill in the same court to obtain a de- cree for the sale of the roads to pay their bonds. In all these cases pleadings were filed and testimony taken, but before any final hearing the General Assembly of North Carolina passed an act repealing all acts creating or continuing in existence the Western Division of the Western North Carolina Companv, and vesting in the Western North Carolina Railroad Company ab- solutely all its rights, credits, rights of action, and effects, with authority for the Western North Carolina Company to prose- cute, defend, and manage any or all suits pending in which the Western Division Compan.y was interested. This having been suggested to the court below after the cases were called up for hearing, the suits instituted in the name of the Western Divis- ion Company were revived in the name of the Western North Carolina Company, and the parties to the suit of Schutte and others corrected so as to adapt that case to this change in cir- cumstances. A hearing was then had in all the suits, which resulted in decrees dismissing the bills of the Western North Carolina Railroad Company. In the Schutte suit a first lieu was declared in favor of the trustees of the internal improve- ment fund upon the road of the Jacksonville, Pensacola and Mobile Company as far west as Quincy, to secure the payment of $463,175.37, with interest at eight per cent, from March 20, 1869, that being the amount of the original purchase-money of that road unpaid, and a second lien in favor of the com- plainants upon the entire road of that company, including a few miles built west of Quincy, to secure the amount of State bonds held by them, given in exchange for the bonds of the Jacksonville, Pensacola and Mobile Company, the principal of which was |2,751,000, and the accrued interest $1,655,001.60. A first lien was declared on the road of the Florida Central Company for one hundred and ninety-seven thousand dollars of principal, and one hundred and eighteen thousand five hun- dred and fifteen dollars and twenty cents of interest, on account 524 The Florida Railroad Cases. [Oct. Term, Opinion of the court. of bonds of the State given in exchange for the bonds of that company. Further provision was made in the decree for the sale of. the roads separately, and an application of the proceeds to the payment of the several sums so found to be due from each respectively, in the order of the priority of the liens. From the decrees dismissing the bills of the Western North Carolina Company that company appealed. From the decree in the Schutte case the Western North Carolina Company, the Florida Central Company, and the Jacksonville, Peiisacola and Mobile Company were allowed an appeal. lu perfecting their appeal the Western North Carolina Company and the Florida Central Company gave bonds which operated as a supersedeas. Before, however, either appeal was docketed here, a settlement was concluded between the Western North Carolina Company and the bondholders, and, pursuant to an understanding to that effect, the appeal of that company was docketed and dismissed in this court on the 13th of September, 1879, pursuant to the 28th rule. At the last term an application was made to set aside the supersedeas obtained on the bond of the Florida Central, because the approval of the bond was obtained by fraud and perjury. This motion was granted. (100 U. S., 644.) After this, on application to this court in behalf of parties interested in the administration of the assets of the Western Division Company, and upon a representation that the settlement which had been made by the Western North Carolina Company was in fraud of their rights and without their consent, an order was made to the etfect that the dismissal be set aside, and the cause re- instated, if the Western Division Company filed with the clerk of this court by the first Monday in February a bond such as was specially designated. This bond was given and approved on the 2d day of February, 1880, and in time. Upon these facts, gathered, with the help of counsel, from the confused mass of papers brought here as the transcript of part of the record below, and filling nearly fifteen hundred printed pages, many questions have been presented and ably argued. 1880.] The Florida Eailroad Cases. 525 Opinion of the court. "We will first consider the special position which the Western North Carolina Company, as the successor of the Western Division Company, occupies. So far as the Florida Central is concerned, it is not claimed that the Western Division could have had anv other rights than such as helona: to a' stockholder holding a controlling interest in the stock of the corporation. Its moneys were wrongfully invested in that stock by an em- bezzler. Swepson, the enibezzler, bought the stock as stock, and if the company whose money was embezzled adopts his purchase, the stock must be taken as he held it, and subject to such incumbrances as were put on it while in his hands. This is not seriously disputed. As to the Jacksonville, Pensacola and Mobile Company-, an attempt is made to reach the property of the company because of the trust deed or agreement executed by Dibble to Swepson, after the conveyances from the trustees of the internal improve- ment fund had been procured through Swepson's fraud. That instrument purported, however, to be in trust for Swepson to conve}- to the company to be created by an act incorporating the purchasers of the property as soon as the necessary legisla- tion to that effect could be obtained. It was not executed in a form to pass title, and the security was only to continue under this plan until the contemplated corporation could be organized. When the act of incorporation was obtained, the company at once, without objection from Swepson, or any one in his inter- est, took possession of the property and operated the railroad as owner. Littlefield, who had succeeded to all of Swepson's rights under his several contracts, assumed the absolute con- trol of the company and was its principal stockholder. Both Swepson and Littlefield were named as coi'porators of the Jacksonville, Pensacola and Mobile Company, incorporated on the same day with the purchasers which shortly after, as no doubt was from the beginning intended, absorbed the pur- chasers' corporation and took possession of its property. No one ever disputed the title of the Jacksonville, Pensacola and Mobile Company until long after this litigation began, and the 52G The Florida Railroad Cases. [Oct. Term, Opinion of the court. Western Division Company in its original bill distinctly aver- red tliut the ownership of the property was in tiiat company. Littleiield held a controlling interest in the stock, and that undoubtedly represented the proceeds of Swepson's embezzle- ments invested in the Pensacola arid Georgia and Tallahassee bonds, through which the North Carolina Company seeks to reach the property. This is clearly recognized in the contract of settlement entered into between Swepson, Littletield, and the commissioners of North Carolina on the 16th of April, 1870, by which it was agreed that the Noi'th Carolina Com- pany should be paid tlie money it had lost from the proceeds of the sales of the State bonds to be issued to the Jacksonville, Pensacola and Mobile Company on the faith of its ownership of this very property. Certainly under such circumstances the North Carolina Company is estopped from setting up title to the property as against the hona-Jrde holders of these bonds. In this litigation that company can occupj' no other position than that of an. equitable owner of the stock of Littletield in the Jacksonville, Pensacola and Mobile Company, and all incumbrances on the property are necessarily incumbrances on the stock which the property in legal eit'ect represents. The settlement with Swepson was undoubtedly conditional, and not to be complete until the money agreed on was paid; but nevertheless the North Carolina Company became by the transaction a seller of the bonds, and is estopped accordingly. This disposes also of the claim that the lien in favor of Swepson, created by the deed or agreement of trust to him, was saved by the proviso at the end of section 6 of the act incorporating the new Tallahassee Company. It is apparent from the \\ hole tenor of the instrument that this was not in- tended as a continuing security, and it is equally clear from the evidence that the stock that stands in Littletield's name represents all the interest which he or Swepson held in the property, as security or otherwise, when these suits were begun. In addition to this, as the instrument was imperfectly executed and was never recorded, it passed no title as against bona-fde 1880.] The Florida Eailroad Cases. 527 Opinion of the court. purchasers. The cases, then, in all their aspects, are to be treated as they would be if the several companies were alone, each lor itself, defending the claims made by the bondholders. We proceed then to inquire whether the companies, or either of, them, can successfully defend the Schutte suit. At the outset it will be conceded that the State bonds are uncon- stitutional. The Supreme Court of the State has throe times so decided in cases where the question was directly presented by the pleadings, and apparently fully argued. In State of Florida v. Anderson, 91 U. S., 678, we said this delicate ques- tion was "one it was eminently proper the courts of Florida should determine"; and while we are not now prepared to saj' that these decisions are conclusive on us,they certainly are not of such doubtful correctness as to make it proper that the}' should be disregarded. The conclusions were reached by applying the language of section 7 of article 12 of the Constitution of 1868, to the condition of afl'airs in the State when that Constitution was adopted. Su«h a question is peculiarly within the prov- ince of the courts of the State to decide, and we ought not to depart from what they have done, except for imperative reasons. But it by no means follows that because the State is not liable on its bonds the companies are free from responsibility under their statutory mortgages. By the express provisions of the act, the State bonds were to be given the company in exchange for its own bonds. The company', not the State, was to use and dispose of the State bonds. The object of the State was to aid the company with its credit. The State bonds were to be made payable to bearer, and negotiable, while the company bonds were to the State alone, and not negotiable. The company bonds were to be coupon bonds and payable at the same time and place as the State bonds, and if the company paid its interest in gold, it was the duty of the State to pay in the same way. It is clear, therefore, the intention was that, as betw-een the State and the company, the State was to be the guarantor of the company bonds, and the company the 528 The Florida Eailkoad Cases. [Oct. Term, Opinion of the court. principal debtor. With the public, however, it was diiierent. There the State was the debtor, and the company was only known through the statutes under which the bonds were put out, and the certiticates indorsed on the bonds themselves, which were that the State held " the first-mortgage bonds of the railroad company for a like amount as security to the holder hereof" Such bonds of the State, with such indorse- ments, the company put on the market and sold. Under these circumstances the certiticate of the Governor as to the security held by the State is in legal effect the certificate of the com- pany itself, and equivalent to an engagement on the part of the company that the bond, so far as the security is concerned, is the valid obligation of the State. The case is clearly within the reason of the rule which makes every indorser of commer- cial [)aper the guarantor of the genuineness and validity of the instrument he indorses. We cannot doubt that under these circumstances the company is estopped, so far as its own lia- bilities are concerned, from denying the validity of the bonds. Having negotiated them on the faith of such a certiticate, the company must be held to have agreed, as part of its own con- tract, whatever that was, that the bonds were obligatory. What, then, were the engagements into which these several companies entered, when, as is alleged, they accepted the bonds of the State in exchange for their own, and put them on the market, for what they appeared on their face to be worth, as conmiercial pa;per ? And here it is proper to say that contracts created l)y or entered into under the authority of statutes, are to be interi]reted according to the language used in each par- ticular case to express the obligation assumed. Where the State is concerned, the words employed are sometimes to be taken most strongly against the other party; but in this, as in other cases of contracts, language is to be given, if possible, its usual and ordinary meaning. The object is to find out from the words used what the parties intended to do. Every stat- ute, like every conti-act, must be read by itself, and it no more follows that one statutory contract is like another than that one 1880.] The Flouida Kailroad Cases. 529 Opinion of the court. ordinary contract means what another does. Of course, gen- eral rules of construction maj' and should be called into use when requii'ed, and sometimes, when certain words used in statutes are understood to have a certain meaning, the same words will be given the same meaning in other like cases; still, in the end, it must be determined from the language used in each particular case what has been done, or agreed to be done, in that case. We have been thus careful to state these familiar principles in this connection to guard against the use of this case as authority in others where the contract, even though it be created by or under the authority of a statute, is not the same. In the present case a statutory lien, in the nature of a first mortgage, duly registered, was given the State on the property of the company to secure the principal and interest of the com- pany bonds, with power in the Governor, if default, for a cei'- tain length of time, should be made in the payment of princi- pal or interest, to take possession of, advertise, and sell the property for lawful money of the United States, and nothing else, unless the State, for its own protection, should become the purchaser, when the price might be paid in money or such obligations of the company as the State should hold. In case of a sale the purchase-mone}', as well as the evidences of the company's indebtedness taken as money, were to be paid into the State treasury, and promptly and exclusively applied to the payment and satisfaction of the bonds issued by the State under the authority of tVie act now in question. If the holders of the State bonds did not present them within ninety days after the sale, the treasurer was required to invest the money remaining in his hands in the securities of the United States, " to be held by the State of Florida as trustee for the bond- holdei's" until demand of the payment of the bonds, when it was made the duty of the treasurer to turn over the securities to the bondholders. It would seem as though language could liot be used indicating more clearly an intention to have the lien — what the Governor, when he made the exchange, certified 34 530 The Florida Railroad Cases. [Oct. Term, Opinion of the court. it to be — a security for the holder of the State bonds. It is quite true that, by section 13 of the aci under which the Jackson- ville, Pensacola and Mobile Company was organized, the com- pany could, at any time before maturity, pay off its own bonds in national currency, or in bonds of the State; but that does not change the character of the trust created by section 11-, in case no such payment was made. Here no payment of any kind has been made, and no foreclosure of the lien has been at- tempted by the State, except in the interest of the bondholders. The State, from the beginning, has recognized its obligations as trustee, and, on the request of the bondholders, commenced the proceedings, under the authority of this statute, which have resulted in the present suits. Indeed, one of the decisions against the constitutionality of the bonds was rendered in a suit instituted by the State, apparently on its own motion, to enforce the lien in behalf of the bondholders. In our opinion there is no occasion for applying here the doctrines of subro- gation, because, in unmistakable language, the statute has made the mortgage of the company security for the payment of the obligations of the State. This we understand to be in accordance with the opinion of the State court, as expressed in the Holland and Florida Central cases, reported in the 15th and 16th of Florida Eeports. It is contended, however, that as the provision of the act in respect to the execution and exchange of the State bonds is un- constitutional, the one in relation to the statutory lien on the property of the company is void also, and must fall. We do not so imderstand the law. Undoubtedly a constitutional part of a statute may be so connected with that which is unconstitu- tional as to make it impossible, if the unconstitutional part is stricken out, to give effect to what, taking the whole together, appears to have been the legislative will. In such a case the whole statute is void; but in this, as in every other case of statutory construction, all depends on the intention of the Legis- lature, as shown by the general scope of the law. To our minds t is clear, in the present case, that the object of the Legislature 1880.] The Florida Railroad Cases. 531 Opinion of ttie court. was, not to create a debt which the State was expected to pay, bat to aid the company in borrowing money upon the credit of the State. As between the State and the company, the debt for the money borrowed was to be the debt of the company. If the State paid its bonds from its own funds, the mortgage could be enforced to compel the company to make the State good for all such payments. If the State did not pay, then the creditors had their own recourse upon the mortgage. The State credit, so far as the State and the company were con- cerned, was only to aid the company in borrowing money on its own bonds. In any event the company was to be bound for the payment of the entire debt when it matured, and its prop- erty was to be given as security. Under these circumstances it seems to us tiiat the unconstitutional part of the statute may be stricken out and the obligation of the company, including i.ts statutory mortgage in favor of the State bondholders, left in full force. The striking out is not necessarily by erasing words, but it may be by disregarding the unconstitutional pro- vision, and reading the statute as if that provision was not there. These bonds as State obligations were void, but as against the company which had actually put them out thejj were good. This disposes of this part of the case so far as the Jackson- ville, Pensacola and Mobile Company is concerned. No claim is made that the statute does not on its face authorize that com- pany to exchange its bonds for those of the State, or that the lien is not created by the exchange. Neither is it claimed that the necessary corporate action was not had to get the bonds out under the forms of law. Although on the 10th of De- cember, 1870, a resolution was passed by the directors of the company ordering a recall of the bonds on account of the pro- posed misapplication of the proceeds of the sales to be made, an actual withdrawal was never effected, and the bonds have got into the hands of bona-fide holders. The very resolutions which directed the recall asserted the previous lawful and reg- ular issue. 532 The Florida Eailroad Cases. [Oct. Term, Opinion of the court. As to the Florida Central Company, however, the case is different, and it is claimed not only that the statute did not authorize the exchange of the bonds and the creation of the lien, but also that the company did not, in its corporate char- acter, exetute its own bonds or make the exchange. As to the first question, we ideeni it sufficient to say that the Supreme Court of Florida has distinctly decided that in the case of this companj% as well as the other, the statutory au- thority was complete. The jjoint was directly made by the pleadings, and as directly passed on by the court. Although the bill in the case was finally dismissed because it was not proved that auj^ of the State bonds had been sold, the decision was in no just sense dictum. It cannot be said that a case is not authority on one point because, although that point was properly presented and decided in the regular course of the consideration of the cause, something else was found in the end which disposed of the whole matter. Here the precise question was properly presented, fully argued; and elaborately considered in the opinion. The decision on this question was as much part of the judgment of the court as was that on any oihev of the several matters on which the case as a whole de- pended. . This, like the constitutionality of the act, is a question of local law. It depends on the peculiar condition of local affairs. If the decision is not conclusive on us, it is of high authority under the circumstances, and we are not inclined to disregard it. The holders of the commercial paper put out by the com- pany and bought on the faith of the State are entitled to the benefit of every presumption in their favor. The next important inquiry is, whether the necessary author- ity for the issue and exchange of the bonds was given by the corporation itself. Certainly the resolution of June 2, 1870, is on its face sufficient for that purpose, as is also that of April 13, 1871. It is true Littlefield now swears that these meetings of the stockholders and directors were irregular and without sufficient notice ; but it is worthy of remark that in the resolu- 1880.] The Florida Eailroad Cases. 533 opinion of the court. tiou of November 21; rescinding that of June 2, there is no pretense that the original resolutions were not lawfully passed, and binding on the company. The rescission is pot entirely on the ground that the form of the bonds was not such as to carry out the intention of the company in directing their issue. Mr. L'Engle also, in his letter to Boissevain giving notice of the frauds that had been practiced on the company, substan- tially conceded that the issue of the bonds was authorized by the company, and confined his protest to the improper use that was being made of them. It is clear to our minds, from the whole ease, that but for the fraudulent disposition of the bonds the corporate action of the company in putting them out would have been considered sufficient. Littlefield's char- acter, as it appears all through this voluminous record, is not such as to entitle him to any favorable consideration as a wit- ness, or otherwise. He and Swepson have both shown them- selves capable of the most shameless frauds, and we cannot but look with suspicion upon everything they do or say. We regret it is not in our power to relieve the corporations, whose aiiairs thej' have been permitted to manage, from the conse- quences of their wanton breaches of tru.st ; but, in our judg- ment, this cannot be done without injui'ing those who are inno- cent of all wrong. It is next contended that, as the bonds were fraudulently- put out by the officers of the companies, and are unconstitu- tional, the recovery must be confined to the amount actually paid for the bonds to the agents of the companies. As we have endeavored to show, the bonds, although void as to the State, are valid as to the company that sold them. Having been put on the market by the companies as valid bonds, the companies are estopped from setting up their unconstitution- alit}-. As against the companies, they occupy in the market the position of commercial securities, and may be dealt with and enforced as such. The companies, through their faithless agents, are in a position where they must meet those they have dealt with commercially, and respond accordingly. In 534 The Florida Railroad Cases. [Oct. Term, Opinion of the court. commerce, commercial paper means what on its face it repre- sents, vegardlesss of what its maker or promoter may have got for it. The bonds of the 8tate in the open market pur- ported to be what they called for. The companies put them out, and in legal effect, as we think, indorsed them. A bona- fde holder can now require the indorser to respond to his in- dorsement commercially, that is to say, by paying what he in eftect agreed the maker must pay. We believe we have now disposed of all the questions the record presents. It has been suggested that, since the appeal, the property has been sold under the decree below. That is not shown by the I'ecord. The supersedeas in favor of the Florida Central Company we have decided was fraudulently obtained. The justice who accepted the bond was imposed upon. That supersedeas was promptly vacated when the facts were called to our attention. The supersedeas secured by the Western l^orth Carolina Company was, to say the least, sus- pended when that company voluntarily dismissed its appeal under the 28th rule. This suspension was not vacated until the bond of indemnity was filed on the 2d of February, 1880. It will be for the court below to determine, when it is called on to confirm any sale that has been made, whether a sale was stayed by a valid subsisting supersedeas. From relief against any order in that behalf, the parties must resort to such meas- ures as they may be advised they are entitled to. We cannot, from anything now before us, settle any such question. The decree in each of the cases is affirmed, with costs. Affirmed. Mr. Justice Field was not present at the argument of these causes, and took no part in their decision. 1880.] Speingek, v. Thk Uniteb States. 535 Opinion of the court. William M. Springer v. The United States. 1. A proceeding by the collector of the district, under tiie act of Congress of June 30, 1864, to collect the income tax thereby imposed by dis- tiaint and sale of realty, is not in conflict with the amendment to the Constitution which declares that " no person shall be deprived of life, liberty, or property without dne process of law," and a congressional statute giving such a remedy is valid. 2. The collector had a discretion as to whether to sell the realty en masse or hi separate parcels, and his hona-fide exercise of it is valid. 3. Refusal to grant a now trial Is not reviewable. 4. Direct taxes, in the meaning of the Constitution, are onl}' capitation taxes, as expressed in that instrument, and taxes on realty. 5. The income tax imposed by the act of Congress of June 30, 4S64, is not a direct tax, and is constitutional. Error to the Circuit Court of the United States for the Southern District of Illinois. William. M. Springer, pro se. Charles Decens, Attorney -General, and Edwin, B. Smith, As- sistant Attorney -General, for defendant in error. SwAYNE, J. — This is an action of ejectment brought by the defendant in error. The title relied upon was derived from a sale to satisfy the income tax assessed against the plai-ntiti' in error, which he had failed to pay. In June, 1866, the proper officer delivered to him a notice, in due form, requiring him to make out a list of his income, gains, and profits during the year 1865. He thereupon made such statement, dated Juno 21, 1866, and delivered it to the officer, with a protest against the right of the officer to make the demand. The statement was handed over to the collector of the dis- trict. The plaintiff in error refused payment. On the 19th of November, 1866, the collector served a notice upon him, that unless he paid the tax within ten days it would be collect- 536 Springer v. The United States. [Oct. Term, Opinion of the court. ed, with a penalty of ten per cent., by the distraint and sale of his property. The plaintiff in error still refusing to pay, the collector caused a warrant to be issued and levied upon the premises in question, and the projjerty was thereafter advertised, ex- posed to sale, and bid in by the United States. A deed was made to the purchaser, and duly recorded.' Owing to a defect touching that instrument, a subsequent deed was executed to the same grantee. The latter bears date April 17, 1874, and is the one here in question. This action was instituted by the United States to recover possession of the premises. Upon the trial it was agreed by the parties that, at the time the premises in question were seized and distrained, the plaintiff in error had no goods or chattels known to the collector or his deputy out of which the tax and penalty could have been made. The introduction of the deed in evidence was objected to upon several grounds. The objections were overruled and exceptions were taken. As all the objections appear in the assignments of error, it is deemed unnecessary here to repro- duce them. It was also proved that the premises sued for consisted of two lots or tracts of land in the town of Springfield, Illinois. There was a house upon one of the tracts and a barn on the •other. They were inclosed together, and the house and both tracts were occupied by plaintiff in error and his family as a homestead. They were assessed separately for State taxation. The evidence being closed, the court instructed the jury — -" That the deed in question is a valid instrument, and trans- ferred the title of the defendant in the premises to the United States," and "that the laws or acts of Congress mentioned in rsaid deed were valid enactments at the time and authorized the proceedings taken in the premises." The plaintiff in error excepted .to each of these instructions. He also submitted a series of instructions on his part, all of iwhich were refused, and he excepted as to each one. They 1880.] Springer v. The United States. 537 Opinion of the court. also appear in his assignments of error, and will be considered in that connection. The jury found a verdict in favor of the United States, and judgment was entered accordingly. This writ of error was thereupon sued out, and the plaintiff in error, who was the defendant below, has thus brought the case into this court for review. There are ten assignments of error. The first one is thus expressed : "The tax which was levied on the plaintiff's income, gains, and profits, as set foi'th in the record, and by pretended virtue of the acts of Congress and parts of acts therein mentioned, is a direct tax." This presents the central and controlling question in the record. It is fundamental with respect to the rights of the parties and the result of the case. This point will be last con- sidered. Many of the other assignments are reproductions of the same things in different forms of language. They will all be responded to without formally restating any of them. This will conduce to brevity without sacrificing clearness, and will not involve the necessary omission of anything proper to be said. The plaintiff in error advises us by his elaborate brief, "that on the trial of the cause below the proceedings were merely formal," and that " no arguments or briefs were submitted, and only such proceedings were had as were necessary to prepare the case for the Supreme Court." This accounts for the numerous defects in the record as a whole. It was doubtless intended that only the question pre- sented in the first of the assignments of error should be con- sidered here. In that respect the record is full and sufficient. Other alleged errors, however, have been pressed upon our attention, and we must dispose of them. There is clearly a misrecital in the deed of one of the acts of Congress to which it refers. By the act of the 30th of March, 1864, was clearly meant the act of Jun.e 30 in the same year. 538 Springer v. The United States. [Oct. Terra, Opinion of the court. There is no act relating to internal revenue of the former date. But the plaintifi' in error cannot avail himself of this fact for several reasons. The point was not brought to the attention of the court be- low, and cannot, therefore, be insisted upon here. It comes within the rule falsa demonstratio non nocet. It was the act of June 30, 1864, as amended by the act of March 3, 1865, that was in force when the tax was assessed. The latter act took eft'ect April 1, 1865, and declared that "the duty herein pro- vided for shall be assessed, collected, and paid upon the gains, protits, and income for the year ending the 81st day of De- cember next preceding the time for levying, collecting, and paying said duty." The tax was assessed for the year 1865 in the spring of 1866, under the act of 1865, according to the requirements of that act, and we iind, upon exaniinatiou, that the assessment was in all things correct. (See 13 Stat., 479.) The criticism of the plaintiff in error in this regard is therefore without foun- dation. The proceedings of the collector were not in conilict with the amendment to the Constitution which declares that " no person shall be deprived of life, liberty, or property without due process of law." The power to distrain personal property' for the payment of taxes is almost as old as the common law. (Cooley on Taxation, 302.) The Constitution gives to Con- gress the power "to lay and collect taxes, duties, imports, and excises." Except as to exports, no limit to the exercise of the power is prescribed. In McCuUoch v. Maryland, 4 Wheat., 431, Chief Justice Marshall said "the power to tax involves the power to destroy." Why is it not competent for Congress to apply to realty as well as personalty the power to distrain and sell, when necessary to enforce the payment of a tax ? It is only the further legitimate exercise of the same power for the same purpose. In Murray's Lessee v. The Hoboken Land Co., 18 How., 274, this court held that an act of Congress 1880.] Springer v. The United States. 539 Opinion of the court. autborizing a warrant to issue, without oath, against a public debtor, for the seizure of his property, was valid; that the warrant was conclusive evidence of the facts recited in it, and that the proceeding was "due process of law" in that case. (See, also, De Trouville v. Smalls, 98 U. S., 517; Sperry v. McKinlev, 99 Id., 496; Miller v. The United States, 11 Wall., 268 ; and Tyler v. Defrees, Id., 331.) The prompt payment of taxes is always important to the public welfare. It may be vital to the existence of a govern- ment. The idea that every tax-payer is entitled to the delays of litigation is unreason. If the laws here in question in- volved any wrong or unnecessary harshness, it was for Con- gress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government. The statute of Illinois had no application to the point- whether the premises should be sold bj' the collector en masse or in two or more parcels. The fact that the house was on one lot. and the barn on the other, that the whole was sur- rounded by a common inclosure, and that the entire property was occupied as a siugle homestead, rendered it not improper for the collector to make the sale as it was made. No suspi- cion of bad faith attaches to him. He was clothed with a dis- cretion, and it is to be presumed that he exercised it both fairly and well. (Olcott v. Bynum, 17 Wall., 49.) Certainly the contrary does not appear. If the tax was not a direct tax, the instructions given by the court, brief as they were, covered the whole case, and submitted it properly to the The plaintiff in error was entitled to nothing more. The fourth instruction which he asked was as follows: "That a party claliming title to land under a summary or extraordinaiy proceeding, must show that all the indispensable preliminaries to a valid sale, which the law and the Constitution have pre- scribed, have been complied with ; and if they believe from the evidence that the plaintiff has failed to show that all the 540 Springer v. The USitkd States. [Oct. Term, Opinion of the court. requirements of the law have been complied with in the assess- ment and levy of said tax, the service of said notice, the issu- ance of said warrant, and the execution thereof, in the adver- tisement and sale of said property, in the making and execu- tion of said deed, and in all the other requirements of the law,, then they will iind for the defendant." This instruction was liable to several fatal objections. It was too general and indefinite. It left it for the jury to decide what were the "indispensable preliminaries." required by the law and Constitution in the numerous particulars specified. It referred to matters to which the attention of the court below does not appear to have been called, and in regard to which, if this had been done, the requisite proof would doubtless have been supplied. It falls within the principle of the rule so often applied, by this court: that where instructions are asked in a mass, if one of them be wrong the whole may be rejected. The record does not purport to give all the testimony, and its defects are doubtless largely due to the mode in which the case ■was tried, and the single object, already stated, which the par- ties then had in view. The instruction was properly refused. To grant or refuse a new trial was a matter within the dis- cretion of the court. That it was refused cannot be assigned for error here. Several other minor points have been earnestly argued by the learned plaintifi" in error, but as they are all within the category of not having been taken in the court below, we need not more particularly advert to them. This brings us to the examination of the main question in the case. The clauses of the Constitution bearing on the subject are as follows: "Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number those bound to service for a term of years, and, excluding Indians not taxed, 1880.] Sprinser I'. The United States. 541 Opinion of the court. Ihree-fifths of all other persons." * * * " jvfo capitation or other direct tax shall be.hiid unless in proportion to the census hereinbefore directed to he taken." "Was the tax here in question a direct tax ? If it was, not having been laid according to the requirements of the Consti- tintion, it must be admitted that the laws imposing it, and the proceedings taken under them l)y the assessor and collector for its imposition and collection, were all void. Many of the provisions of the Articles of Confederation of 1777 were embodied in the existing organic law. They pro- vided for a common treasury and the mode of supplying it with thuds. The latter was by requisitions upon the several States. The delays and difficulties in procuring the compliance of the States, it is known, was one of the causes that led to the adoption of the present Constitution. This clause of the Arti- cles throws no light on the question we are called upon to con- sider. Nor does the journal of the proceedings of the consti- tutional convention of 1787 contain anything of much value relating to the subject. It appears that on the 11th of July, in that year, there was a debate of some warmth involving the topic of slavery. On the day following, Gouverneur Morris, of New York, submitted a proposition "that taxation shall be in proportion to repre- sentation." It is further recorded in this day's proceedings that Mr. Morris having so varied his motion by inserting the word direct, it passed 7iem. con. as follows: "Provided always that direct taxes ought to be proportioned to representation." (2 Madison Papers by Gilpin, pp. 1079-1081.) On the 24th of the same month Mr. Morris said that " he hoped the committee would strike out the whole clause. * * * He had only meant it as a bridge to assist ns over a gulf; having passed the gulf, the bridge may be removed. He thought the principle laid down with so much strictness liable to sti-ong objections." (Id., 1197.) The gulf was the share of representation claimed by the Southern States on account of their slave population. But the bridge remained. The builder 542 Spri.ngek v. The United States. [Oct. Term, Oninion of tlie court. could not remove it, much as he desired to do so. All [larties seem thereafter to have avoided the. subject. With one or two immaterial exceptions, not necessary to be noted, it does not appear that it was again adverted to in any way. It was silently incorporated into the draft of the Constitution, as that instrument was tinally adopted. It does not appear that an attempt was made by any one to define the exact meaning of the' language employed. In the twenty-first number of The Federalist, Alexander Hamilton, speaking of taxes generally, said: "Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of the land, or the number of the people, may serve as a standard." The thirty-sixth number of that work, by the same author, is de- voted to the subject of internal taxes. It is there said " Ihey may be subdivided into those of the direct and those of the indi- rect kind." In this connection land taxes and poll taxes are discussed. The former are commended and the latter are con- demned. Nothing is said of any other direct tax. In neither case is there a definition given or attempted of the phrase " direct tax." The very elaborate researches of the plaintifl' in error have furnished us with nothing from the debates of the State con- ventions, by whom the Constitution was adopted, which gives us any aid. Hence we may safely assume that no such niii- terial exists in that direction, though it is known that Virginia proposed to Congress an amendment relating to the subject, and that Massachusetts, South Carolina, New York, and North Carolina expressed strong disapprobation of the power given to impose such burdens. (1 Tucker's Blackst., pt. 1, app., 285.) Perhaps the two most authoritative persons in the conven- tion touching the Constitution were Hamilton and Madison. The latter, in a letter of May 11, 1794, speaking of the tax which was adjudicated upon in Hylton i-.The U. S., 3 Dall., 171, said: " The tax on carriages succeeded in spite of the Con- stitution by a majority of twenty, the advocates of the princi- 1880.] SPEiNGEii V. The United States. 543 Opinion of the court. pie being reinforced by the adversaries of luxury." (2 Mad. "Writings, pub. by Congress, p. 14.) In another letter of the 7th of February, 1796, referring to the case of Hylton v. The U. B., then pending, he remarked : " There never was a ques- tion on which my mind was better satisfied, and yet I have very little expectation that it will be viewed in the same ligbt by the court that it is by me." (Id., 77.) Whence the despond- ency thus expressed is unexplained. Hamilton left behind him a series of legal briefs, and among them one entitled " Carriage Tax." (See vol. 7, p. 848, of his works.) This paper was evidently pi-epared with a view to the Hylton- case, in vvhicli he appeared as one of the counsel for the United States. In it he says: "What is the distinction between direct and indirect taxes ? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any an- tecedent settled legal meaning to the respective terms. There is none. We shall be as much at a loss to find any disposition of either which can satisfactorily determine the point." There being many carriages in some of the States and very few in others, he points out the preposterous consequences if such a tax be laid and collected on the principle of apportionment instead of the rule of uniformity. He insists that if the tax there in question was a direct tax, so would be a tax on ships according to their tonnage. He suggests that the boundary line between direct and indirect taxes be settled by " a species of arbitration," and that direct taxes be held to be only " capi- tation or poll taxes, and taxes on lands and buildings, and gen- eral assessments, whether on the ivhole property of individuals, or on their lohole real or personal estate. All else must, of necessity, be considered as indirect taxes." The tax here in question falls within neither of these cate- gories. It is not a tax on the " whole * * < * personal estate" of the 'individual, but only on his income, gains, and profits during a year, which may have been but a small part of his personal estate, and in most cases would have been so. 544 Springer v. The United States. [Oct. Term, Opinion of the court. This classitication lends no support to the argument of the plaintiff in error. The Constitution went into operation on the 4th of March, 1789. It is important to look into the legislation of Congress touch- ing the subject since that time. The following summary will sufhce for our purpose. "We shall refer to the several acts of Congress, to 'be examined according to their sequence in dates. In all of them the aggregate amount required to be collected was apportioned among the several States. The act of July 14, 1798, (ch. 75, 1 Stats., 53.) This act imposed a tax upon real estate and a capitation tax upon slaves. The act of August 2, 1813, (ch. 37, 8 Id., 53.) By this act the tax was imposed upon real estate and slaves, according to their respective values in money. The act of January 19, 1815, (ch. 21, Id., 164.) This act imposed the tax upon the same descriptions of property, and in like manner as the preceding act. The act of February 27, 1815, (ch. 60, Id., 216,) applied to the District of Columbia the provisions of the act of January 19, 1815. The act of March b, 1816, (ch. 24, Id., 255,) repealed the two preceding acts, and re-enacted their provisions to enforce the collection of the smaller amount of tax thereby prescribed. The act of August 5, 1861, (ch. 45, 12 Id., 294,) required the tax to be levied wholly on real estate. The act of June 7, 1862, (ch. 98, Id., 422,)' and the act of February 6, 1863, (ch. 21, Id., 640,) both relate only to the collection, in insurrectionary districts, of the direct tax imposed by the act of August 5, 1861, and need not, therefore, be more particularly noticed. It will thus be seen that whenever the government has im- posed a tax which it recognized as a direct tax, it has never been applied to any objects but real estate and slaves. The latter application may be accounted for upon two grounds: (1) In some of the States slaves were regarded as real estate, (1 1880.] Springer v. Tub United States. 545 Opinion of the court. Hurd on Slavery, 239; Veazie Bk. v. Fenno, 8 Wall., 533.) and (2) such an extension of the tax lessened the burden upon the real estate where slavery existed; while the result to the na- tional treasury was the same, whether the slaves were omitted or included. The wishes of the South were, therefore, allowed to prevail. We are not aware that the question of the validity of such a tax was ever presented for adjudication. Slavery having passed awaj', it cannot hereafter arise. It does not appear that any tax like the one here iu question was ever re- garded or treated by Congress as a direct tax. This uniform practical construction of the Constitution touching so impor- tant a point, through so long a period, by the legislative and executive departments of the government, though not conclu- sive, is a consideration of great weight. There are four adjudications bj- this opurt to be considered. They have an important, if not a conclusive, application to the case in hand. In Hylton v. The United States, supra, a tax had been laid upon pleasure carriages. The plaintitf in error insisted that the tax was void because it was a direct tax, and had not been apportioned among the States, as required by the Constitution, where such taxes are imposed. The case was argued on both sides by counsel of eminence and ability. It was heard and determined by four judges — Wilson, Patter- son, Chase, and Iredell. The three first named had been dis- tinguished members of the constitutional convention. Wilson was on the committee that reported the completed draft of the instrument, and warmly advocated its adoption in the State convention of Pennsylvania. The fourth was a member of the convention of North Carolina that adopted the Constitu- tion. The case was decided in 1795. The judges were unani- mous. The tax was held not to be a dived tax. Each judge delivered a separate opinion. Their judgment was put on the ground indicated by Justice Chase in the following extract from his opinion : "It appears to me that a tax on carriages cannot be laid by the rule of apportionment without very great inequality and in- 35 546 Springee v. The United States. [Oct. Term, Opinion of the court. justice. For example: Suppose two States equal in census to pay eighty thousand dollars each by a tax on carriages, of eight dollars on evei-y carriage ; and in one State there are one hun- dred carriages, and in the other one thousand. The owners of carriages in one State would pay ten times the tax of owners in the other. A, in one State, would pay for his carriage eight dollars ; hut B, in the other State, would pay for his carriage eighty dollars." It was well held, that where such evils would attend the apportionment of a tax, the Constitution could not have in- tended tliat an apportionment should be made. This view applies with even greater force to the tax in question in this case. Where the population is large and the incomes few and small, it would be Intolerably oppressive. The difference in the ability of communities, without refer- ence to numbers, to pay any taxes, is forcibly remarked upon by McCulloch in his article on taxation in the Encyclopedia Britannica, vol. 21, p. 75, old edition. Justice Chase said further, "that he would give no judicial opiuion upon the subject, -but that he was inclined to think that the direct taxes contemplated by the Constitution were onlj' two: a capitation tax and a tax on land." Iredell, Justice, said: "Perhaps a direct tax, in the sense of the Constitution, can mean nothing but a tax on something inseparably annexed to the soil. * * * j^ land or poll tax may be considered of this description. The latter is to be so considered, particularly under the present Constitution, on ac- count of the slaves in the Southern States, who give a ratio in the representation in the proportion of three to five." Patterson, Justice, said he never entertained a doubt "that the principal, he would not saj' the onli/, objects contemplated by the Constitution as falling within the rule of apportionment, were a capitation tax and a tax on land." From these views the other judges expressed no dissent. "Ellsworth, the chief justice sworn into office that morning, not having heard the whole argument, declined taking part in 1880.] Springer v. The United States. 547 Opinion of the court. the decision." (8 Wall., 545.) Gushing, from ill-health, did not sit in the case. It has been remarked, that if they had been dissatisfied with the result, the question involved being so im- portant, doubtless a reargument would have been had. In The Pacific Insurance Co. r. Soule, 7 Wall., 433, the taxes in question were upon the receipts of such companies from premiums and assessments, and upon all sums made or added during the j'ear to their surplus or contingent funds. This court held unanimouslv that the taxes were not direct taxes, and that they were valid. In The Veazie Bank v. Fenno, 8 Wall., 533, the tax which came under consideration was one of ten per cent, upon the notes of State banks paid out by other hanks. State or national. The same conclusions were reached by the' court as in the case of The Paciiic Insurance Co. r. Soule. Chief Justice Chase delivered the opinion of the court. In the course of his elab- orate examination of the subject he said: ".It may be rightly afhrraed that, in the practical construction of the Constitution by Congress, direct taxes have b^en limited to taxes on land and appurtenances and taxes on polls, or capitation taxes." In Scholey c. Rew, 23 Wall., 331, the tax involved was a succession tax, imposed by the acts of Congress of June 30, 1864, and July 13, 1866. It was held that the tax was not a direct tax, and that it was constitutional and valid. In deliver- ing the opinion of the court Mr. Justice Clifford, after remark- ing that the tax there in question was not a direct tax, said : " Instead of that, it is plainly an excise tax or duty, authorized by section ], article 8 of the Constitution, which vests the power in Congress to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and pub- lic welfare." He said further : " Taxes on houses, lands, and other perma- nent real estate have always been deemed to be direct taxes, and capitation taxes, by the express words of the Constitution, are within the same category ; but it has never been decided that any other legal exactions for the support of the Federal 548 Springer ?7. The United States. [Oct. Term, Opinion of the court. government fall within the condition, that unless laid in pro- portion to numbers the assessment is invalid." All these cases are undistinguishable in principle from the case now before us, and they are decisive against the plaintiff in error. The question, what is a direct tax, is one exclusively in American jurisprudence. The text-writers of the country are in entire accord upon the subject. Judge Story says all taxes are usually divided into two classes — those which are direct and those which are indirect — and that " under the former denomination are included taxes on land or real property, and under the latter taxes on con- sumption." (1 Gonst., sec. 950.) Chancellor Kent, speaking of the case of Hylton v. The U. S., says : " The better opinion seemed to be that the direct taxes contemplated by the Constitution were only two, viz., a capita- tion or poll tax and a tax on land." (1 Comm., 257. See, also, Cooley on Taxation, p. 5, note 2; Poraeroy on Const. Law, 157; Shurswood's Blackst, 308, note ; Eawle on the Const, 30 ; Sargeant on the Const, 305.) We are not aware that any writer, since Hylton v. The U. S. was decided, has expressed a view of the subject different from that of these authors. Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty. (Pom. Const. Law, 177; Pacific Insurance Co. V. Soule, and Scholey v. Rew, supra.) Against the considerations in one scale, in favor of these propositions, what has been placed in the other as a counter- poise ? Our answer is, certainly nothing of such weight, in our judgment, as to require any special reply. The numerous citations from the writings of foreign political economists, made by the plaintiff in error, are sufficiently an- swered by Hamilton in his brief, before referred to. 1880.] Hartman v. Greenhow. 549 Opinion of the court. The judgment of the Circuit Court must be affirmed, and it is so ordered. Affirmed. H. C. G. Hartman t. Samuel C. Greenhow, treasurer of THE City of Eichmond. 1. A jiKlgmeiit denying a manrlaraus aslcerl for to reqnire a tax-collector to receive ceitain tax-receivable coupons in payment of tuxes witliout dednction, is sncli a final jndgment as to be reviewable. 2. Such a judgment is reviewable thongli rendered by an equally divided court, the effect of which is to deny tlie petition, and though on ae- connt of sneh division not authority in other caae.=. 3. Such a judgment is reviewable on the ground specified in the twenty- fifth section of the judiciary act, (Revised Statutes U. S., section 709,) as well when i-endered in original proceedings in the Slate courts of last resort, as when rendered in appellate proceedings. 4. The State of Virginia, by the act of Marcli 30. 1871, issued certain bonds payable to order or bearer. The coupons attached were paya- ble to beaver, and were receivable, as was shown on their face, for all the debts, taxes, and demands due the State. A subsequent act of March 25, 1873, amended and re-enacted In 1876, imposed a tax on the bonds, which was directed to be deducted from the coupons when presented in payment of taxes : Held — 1. That distinct contracts ai-ose on the part of the State with the holder of the bonds and the holder of the coupons. 2. That the act imposing the tax and requiring it to be deducted from the coupon, so far as it applies to coupons separated from the bonds and held b}' different owners, impairs the obligation of the contract of the State with both the bondholder and the coupon- holdei', and is void. Error to the Supreme Court of Appeals of the State of Virginia. William L. Royall, for appellant. James G. Field, Attorney- General of Virginia, for appellee. Field, J. — The plaintiff in error, who is the petitioner in the court below, is a citizen and resident of the city of Eich- 550 Hartman v. Grbenhow. [Oct. Term, Opinion of the court. mond, State of Virginia; and on the 5th of April, 1878, was indebted to the State for taxes to the amount of twenty-six dollars and iifty-three cents. On that day he tendered to the treasurer of Richmond — who is by law charged with the duty of collecting the taxes of the State in that city: — certain inter- est coupons, which were overdue, amounting to twenty-four dollars, cut from bonds of the State, issued under the provisions of an act of the Grcneral Assembly, passed March 30, 1871, commonly known as the funding act, and two dollars and fifty-three cents in lawful mouej' of the United States, in pay- ment of the taxes; but the treasurer refused to receive the coupons in discharge of the taxes without tirst deducting there- from the taxes upon the bonds to which they were originallj' attached. The petitioner holding the coupons was not at the time the owner of such bonds. Upon this refusal he applied to the Supreme Court of Appeals of Virginia for a writ of mandamus to the treasurer to compel him to receive the cou- pons, with the money mentioned, in full discharge of the pe- titioner's taxes, without any deduction from the coupons for the taxes upon the bonds. The court issued a rule or an alternative writ upon the treasurer, to which he answered, that the G-eneral Assembly of the State had, for many years, exercised the right to tax all bonds, choses in action, and other evidences of debt, including bonds of the State; that the taxes assessed upon the latter bonds were according to their market value, the amount being fixed at fifty cents on the one hundred dollars of such value; that the law required the taxes to be collected when the interest on the bonds was paid, and made it a high penal offense for any officer to receive coupons in payment of taxes without deducting from their face value the tax levied upon the bonds from which they were taken ; and he referred to several acts of the Legislature in support, of this statement. He also answered, that, at the time the coupons were tendered to him, he proposed to deduct from them the amount of the taxes on the bonds to which they were originally attached. 1880.] Hartman v. Grebnhow. 551 Opinion of the court. and deroanded of the petitioner a like amount in money in addition to what was tendered ; that he would not otherwise have been justitied in giving a receipt in full for the taxes due; and that this additional amount the petitioner refused to pay. The respondent therefore denied that the petitioner was entitled to the writ, and prayed that his petition be dis- missed. The application was fully argued before the Supreme Court of Appeals by counsel for the petitioner, and by the Attorney- General of the State for the treasurer. The judges of the court were equally divided in opinion upon it, and, as is usual in such cases, the application was denied, and judgment to that effect, with costs, was entered. To review this judgment the case is brought here on writ of error. The principal question for determination, as thus seen, is the validity of the statute of the State requiring the tax levied upon its bonds to be deducted from the coupons for interest originally attached to them, when the coupons are presented fpr payment, so far as it applies to coupons separated from the bonds and held by diiierent owners. t To fully understand this question it will be necessary to njake a brief reference to the legislation ot the State upon her indebtedness. But before doing this there is a question of jurisdiction' to be considered. The judgment of the Supreme Court of Appeals being entered upon an equal division of opinion among its judges, it is argued that there is no such final adjudication of the State court as can be reviewed by this court. The Revised Statutes, which express the statute law of the United States in force December 1, 1873, provide, in section 709 — ehibodying substantially the provisions of section 25 of the judiciary act of 1789 — that a final judgment or decree, ini any suit, of the highest court of a State in which a decision could be had, may be re-examined by the Supreme Court of the United States in three classes of cases. In all of them there must be a final judgment or decree of the highest court: 552 Hartman 0. G-keenhow. [Oct. Term, Opinion of the court. of the State, and tbe decision expressed by that judgment must have involved a question under the Constitution, laws, or treaties of the United States, and have been adverse to some right, privilege, or immunity claimed under them. Here the Su- preme Court of Appeals certifies that on' the hearing of the case there was drawn in question the validity of the statute of the State authorizing the tax upon the bonds and requiring its deduction from the coupons, on the ground of its repugnancy to tbe provision of the Constitution of the United States pro- hibiting any legislation by the States impairing the obligation of contracts; and that the decision was in favor of the validity of the State statute and against the right claimed by the peti- tioner under the provision of the Constitution of the United States. That this certificate correctly states the question in- volved, will more clearly appear from the legislation of the State, which we shall presently consider. The judgment deny- ing the writ of mandamus was a final determination against the claim of the petitioner to have the coupons held by him received for taxes without a deduction from their face value of the amount of the tax levied on the bonds. A mandamus in cases of this kind is no longer regarded in this country as a mere prerogative writ. It is nothing more than an ordinary proceeding or action in which the performance of a specific duty, by which the rights of the petitioner are affected, is sought to be enforced. Says Mr. Chief Justice Taney: "It undoubt- edly came into use by virtue of prerogative power in the Eng- lish crown, and was subject to regulations and rules which have long since been disused ; but the right to the writ and the power to issue it have ceased to depend upon any prerogative power, .and it is now regarded as an ordinary process in cases to which- it is applicable. It was so held by this court in the cases of JKendall v. The United States, 12 Peters, 615, and Kendall v. Stokes etal, 3 How., 100." (Kentucky v. Dennison, 24 How., 97.) And such we understand to be the law of Virginia. The judgment, therefore, in the case stands like the judgment in an •ordinary action at law, subject to review under similar condi- 1880.] Hartman v. Greenhow. 553 Opinion of tlie court. tions. It is not the less expressive of the decision of the court upon the merits of the petitioner's claim in the case because it is rendered upon an equal division of opinion among the judges. The fact of division does not impair the conclusive force of the judgment, though it may prevent the decision from being authority in other eases upon the, question involved. The judgment is that of the entire court, and is as binding in every respect as if rendered upon the concurrence of all the judges. (Lessieur v. Price, 12 How., 59; Durant v. Essex County, 7 Wall., 107; S. C, 101 U. 8., 555.) i^or does it matter that the judgment was rendered in an original proceeding in the Supreme Court of Appeals of Vir- ginia, and not in a case pending before that court on appeal. It is enough for our jurisdiction that the judgment is by the highest tribunal of the State in which a decision could be had in the suit. When such a judgment is brought before us for review, involving in its rendition a decision upon a Federal question, we do not look beyond the action of that court. It is enough that we have its final judgment in the case, whether it be one of original jurisdiction, or heard by it in the exercise 9f its own appellate power o^er the inferior courts of the State. We proceed, therefore, to consider the legislation of the State upon her indebtedness. A brief sketch of it will pei-haps enable us better than in any other way to exhibit the ques- tion for our determination, and indicate the solution it should receive. It appears from the statutes to which we are referred — and we know the fact as a matter of public history — that prior to the late civil war Virginia had become largely indebted for moneys borrowed to construct public works in the State. The moneys were obtained upon her bonds, which were issued to an amount exceeding thirty millions of dollars. Being the obliga- tions of a State of large wealth, which never allowed its fidelity to its promises to he questioned anywhere, the bonds found a ready sale in the markets of the country. Until the civil war the 554 Haetman v. Grebnhow. [Oct. Term, Opinion of tlie court. interest on them was regularlj' and promptly paid. Afterwards the payments ceased, and until 1871, with the exception of a few small sums remitted in. coin during the w^arto London for foreign bondholders, or paid in Virginia in Confederate money, and a small amount paid in 1866 and 1867, no part of the in- terest or principal was paid. During the war a portion of her territory was separated from her, and by its people a new State, named West Virginia, was formed, and by the Congress of the United States was admitted into the Union. Neai'ly one-third of her territory and people were thus taken from her jurisdic- tion. But as the whole State had created the indebtedness for which the bonds were issued, and participated in the beneiits obtained by the moneys raised, it was but just that a portion ■ of the indebtedness should be assumed by that part which was taken from her and made a new State. Writers on public law speak of the principle as well established, that where a State is divided into two or more States, in the adjustment of "liabili- ties between each other the debts of the parent State should be ratably apportioned among them. On this subject Kent b&}'b: "If a State should be divided in respect to territory, its rights and obligations are not impaired; and if they have not been apportioned by special agreement, their rights are to be enjoyed and their obligations fultilled by all the parts in com- mon." (Commentaries, vol. 1, p. 26.) And Halleck, speaking of a State divided into two or more distinct and independent sovereignties, says: "In that case the obligations which have accrued to the whole before the division are, unless they have been the subject of a special agreement, ratably binding upon the different parts. This principle is established by the con- current opinions of text-writers, the decisions of courts, and the practice of nations." (International Law, ch. 3, sec. 27.) In conformity with the doctrine thus stated by Halleck, both States — Virginia and West Virginia — have recognized in their constitutions their respective liability for an equitable propor- tion of the old debt of the State, and have provided that measures should be taken for its settlement. The Constitution 1880.] Hartman v. G-reenhow. 555 Opinion of the court. of Virginia of 1870 declared that the General Assembly should "provide by law for adjusting with the State of West Virginia the proportion of the public debt of Virginia proper to be borne by the States of Virginia and West Virginia," and should "provide that such sums as shall be received from West Virginia shall be applied to the payment of the public debt of the State." (Art. 10, sec. 19.) The Constitution of West Virginia, which went into effect in 1863, declared that "an equitable proportion of the public debt of the Commonwealth of Virginia, prior to the 1st day of January, 1861," should "be assumed" by the State, and that the Legislature should "ascertain the same as soon as practicable, and provide for the liquidation thereof by a sink- ing fund sufficient to pay the accruing interest, and redeem the principal within thirty-four years." (Art7 8, sec. 8.) But notwithstanding these constitutional requirements and various' efforts made to adjust the liabilities of West Virginia, nothing was accomplished up to March 30, 1871, and it is stated by counsel that nothing has been accomplished since. As might have been expected, the position of Virginia was not a pleasant one — being charged with the whole indebtedness which accrued before the formation out of her territory of a new State, and entitled to, without being able to obtain, a con- tribution from the new State of a part of it, corresponding proportionately to her extent and population. She therefore undertook to effect a separate adjustment with her creditors, and for that purpose, on the 30th of March, 1871, passed an act known as the ■' funding act " of the State. It is entitled "An act to provide for the funding and payment of the public debt." Its preamble recited that in the ordinance authorizing the organization of the State of West Virginia it was provided that she should take upon herself a just proportion of the pub- lic debt of the Commonwealth of Virginia, prior to January 1, 1861, and that this provision had not been fulfilled, although repeated and earnest efforts in that behalf had been made by Virginia; and then declared that "to enable the State of West 556 Hartman v. Geeeniiow. [Oct. Term, Opinion of the court. Virginia to settle her proportion of said debt with the holders thereof," and to prevent any complications or difficulties which might be interposed to any other manner of settlement, and "for the purpose of promptly restoring the Credit of Virginia, by providing for the certain and prompt payment of the inter- est on her proportion of said debt as the same shall become due," the Legislature enacted that the owners of the bonds, stocks, or interest certiiicates of the State, with a few excep- tions, might fund two-thirds of the same and two-thirds of the interest due or to become due thereon up to July 1, 1871, in six per cent, coupon or registered bonds of the State, to run thirty-four years; the bonds to be made payable to order or bearer, and the coupons to bearer.. The act declared that the coupons should be payable semi-annually, and "be receivable at and after maturity for all taxes, debts, dues, and demands due the State," and that this should be so expressed on their face. For the remaining one-third of the amount of the bonds thus funded, the act provided that certificates should be issued to the creditors, setting forth the amount of the bonds not funded, with the interest thereon, and that their payment would be provided for in accordance with such settlement as might be subsequently had between the two States ; and that Vir- ginia would hold the bonds surrendered, so far as they were not funded, in trust for the holder or his assignees. The bonds of the State, with the accumulated interest, then amounted to over forty millions of dollars. Under this act a large number of the creditors of the State, holding bonds amounting, including interest thereon, to about thirty millions of dollars, surrendered them and took new bonds for two-thirds of their amount and certificates for the balance. A contract was thus, consummated between the State and the holders of the new bonds, and all subsequent holders of the coupons, from the obligation of which she could not, without their consent, release herself by any subsequent legislation. She thus bound herself not only to pay the bonds when they became due, but to receive the interest coupons 1880.] Hartman v. Greenhow. 557 Opinion of the coutt. from the bearer at and after their maturitj', to their full amount, for any taxes oi' dues by him to the State. This receivability of coupons for such taxes and dues was written on their face and accompanied them into whatever hands they passed. It constituted their chief value, and was the main consideration ottered to the holders of the old bonds to surrender them and accept new bonds for two-thirds of their amount. In Woodrufi'i;. Trapnall, reported in 10th Howard, a pro- v^ision in an act of Arkansas, similar to this one, that the bills and notes of the Bank of the State of Arkansas, the capital of which belonged to the State, should " be received in all pay- ments of debts due to the State of Arkansas," was held to be a contract with the Iroldei's of such notes which was binding on the State, and that the subsequent repeal of the provision did not atfect the notes previously issued. " The notes," said the court, "are made pa3^able to bearer; consequently every bona- fide holder has a right, under section 28," (the one making the notes receivable for dues to the State,) "to pay the State any debt he may owe it in the paper of the bank. It is a con- tinuing guaranty by the State that the notes shall be so received. Such a contract would be binding on an individual, and is not the less so on the State." "And that the Legislature could not withdraw this obligation from the notes in circulation at the time the guaranty was repealed, is a position which can require no argument." In Furman v. NieoU, 8 Wall., 44, a similar provision in an act of Tennessee, declaring that certain notes of the bank of that State should be "receivable" at the treasury of the State, and by tax collectors and other public officers, "in all payments for taxes and other moneys due the State," was held by this court unanimously to constitute a valid contract between the State and every person receiving a note of the bank. An attempt was made in the case to restrain the operation of the guaranty contained in the provision to the person who received the note in the course of his dealing with the bank, but the court said : " The guaranty is in no sense a personal one. It attaches to the note — is part of it, as much so 558 Hartman v. Grebnhow. [Oct. Term, Opinion of the court. as if written on the back of it — goes with the note everywhere, and invites every one who hais taxes to pay to take it." Yet notwithstanding the language of the act of March 30, 1871, providing that the interest coupons of the new bonds should " be receivable at and after maturity for all taxes, debts, dues, and demands due the State," and this was so expressed upon their face, the Legislature of Virginia, less than one year afterwards, (on the 7th of March, 1872,) passed an act declaring that thereafter it should " not be lawful for the officers charged with the collection of taxes or other demands of the State," then due or which should thereafter become due, "to receive in payment thereof anything else .than gold or silver coin. United States treasury notes, or notes of the national banks of the United States." This act, as seen on its face, is in direct coniiict with the pledge of the State of the previous year, and with the decisions of this court to which we have referred. Its validity, as might have been expected, vias soon attacked in the courts as impairing the obligation of the contract con- tained in the funding act, and came before the Supreme Court of Appeals of the State for consideration in Antoni i'. Wright, at its November term of 1872. The subject was there most elaborately and learnedly treated. The cases above were cited by the court ; and the provision of the funding act was shown, by reasoning perfectly conclusive, to be a contract founded upon valuable considerations and binding upon the State. It was earnestly pressed upon the court that it was not within the legitimate power of the Legislature to make such a contract; that it would tend to embarrass the action of subsequent Legis- latures by depriving them of the proper control of the annual revenue, and might, by absorbing the revenue, substantially annul the taxing power aiid put a stop to the wheels of govern- ment. But the court said, among other answers to this, that no rightful power of the State was surrendered by the legis- lation, but simply a provision made for the payment of the debts of the State; that the annual accruing interest on the debt of the State was in all well-regulated governments deemed an 1880.] Haetman v. Greenhow. 559 Opinion of the court. essential part of their annual expenses, and was always annu- ally provided for. The act only made provision for an annual appropriation of a portion of the revenue derived from taxa- tion to the payment of existing debts; and such legislation could not be deemed a great stretch of power, when the organic law of the State not only contemplates the punctual annual payment of the interest of her entire debt, but imperatively required, on the creation of a debt, that a sinking fund should be at once established to be applied solely to its extinction. The organic law thus not merely authorized, but required the Legislature which created the debt to bind ail future Legisla- tures by the establishment of a fund to be applied solely to the extinction of the debt. And as to the objection that such legislation might, and probably would, result in crippling the power and resources of the State in time of war, or other great calamity, the court said that legislation cannot well be adapted in advance to extraordinary and exceptional cases; that such cases will occur at all times with all nations, and must be pro- vided for by the wisdom and prudence of the government for the time being. "At such a time, however," said the court, in words full of wisdom, "the honored name and high credit secured to a State by unbroken faith, even in adversity, will, apart from all other considerations, be worth more to her in dollars — incalculably more — than the comparatively insignifi- cant amount of the interest on a portion of the public debt enjoyed by breach of contract." The court thus expressed a great truth, which all just men appreciate, that there is no wealth or power equal to that which ultimatelj' comes to a" State when in all her engagements she keeps her faith un- broken. These decisions of the Federal and State courts dispose sub- stantially of the question presented in the case at bar. The act of March, 1872, being held to be invalid, the coupons were subsequently, and until March, 1873, received for all taxes due the State to their full amount. On the 25th of that month' the Legislature passed an act providing that from the interest 560 Hartman v. Gkeenhow. [Oct. Term, opinion of the court. payable out of the treasury on bonds of the State, whether funded or unfunded, there should be retained a tax equal in amount to fifty cents on the one hundred dollars of their mar- ket value on the ]st day of April of each year, and made it the duty of every officer of the Commonwealth charged with the collection of taxes to deduct from the matured coupons which might be tendered to him in payment of taxes or other dues to the State such tax as was then or might thereafter be imposed on the bonds. The act, in terms, applied to all bonds of the State, whether held by her own citizens or non-residents and citizens of other States or countries. In 1874 the Legis- lature modified this provision so that the tax on the bonds should not be retained from the interest paid on them when they were the property of non-residents of the Commonwealth. But this exemption was omitted in the act of 1876, providing for the assessment of taxes in the State, in which the provision of the act of 1873 was inserted. It is the validity of this pro- vision requiring the tax levied on the bonds to be deducted from tlie coupons held by other parties, when tendered in pay- ment of their taxes or other dues to the State, which is pre- sented for our determination. The power of the State to impose a tax on her own obliga- tions is a subject upon which there has been a dift'erence of opinion among jurists and statesmen. On the one hand, it has been contended that such a tax is in conflict with and contrary to the obligation assumed; that the obligation to pay a certain sum is inconsistent with a right at the same time to retain a portion of it in the shape of a tax, and that to impose such a tax is, therefore, to violate the promise of the government. (See Hamilton ou the Public Credit, in his works, 3d vol., pp. 514 to 518.) On the other hand, it is urged that the bonds of every State are property in the hands of its creditors, and, as such, that they should bear a due proportion of the public burdens. In the case of Murray v. Charleston, 96 U. S., 445, there are many pertinent and just observations on this subject which it 1880.] Hartman v. Grebnhow. 561 OpinioD of the court. is not material to repeat, for the question is not necessarily in- volved in the disposition of the case before us. Whatever may be the wise rule — looking at the necessity in a commercial country for its prosperity that its pubUc credit should never be impaired — as to the taxability of the public securities, it is settled that any tax levied upon them cannot be withheld from the interest payable thereon. Snch was the decision of this court in Murray v. Charleston. There the city had issued cer- tificates of stock, whurebj^ it promised to pay to the owners thereof certain sums of money, with six per cent, interest, pay- able quarterly. Subsequently it imposed a tax of two per cent, on the value of all property within its limits for the purpose of meeting the expenses of its government; and, treating its stock as part of such property, directed that the tax assessed upon it should be retained by the treasurer of the city from the interest due thereon. To recover the amount thus re- tained, which was one-third of the interest stipulated, suit was brought. The city defended its action on the ground that the tax on the stock was not higher than the tax on all other prop- erty of its citizens, and that all property in the city was sub- ject to taxation ; but the court answered that, by the legis- lation of the city, its obligation to its creditors was impaired, and, however great its power of taxation, it must be exercised, being a political agency of the State, in subordination to the ihhibition of the Federal Constitution against legislation im- pairing the obligation of contracts. Until the interest was paid, no act of the State or of its political subdivisions, exer- cising legislative power by its authority, could work an exon- eration from what was promised to the creditor. This decision would be decisive here, but the present case is still stronger for the creditor. The funding act made the bonds issued un- der it payable to order or bearer, and made the coupons pay- able to bearer. They were so far distinct and independent contracts that they could be separated from each other and transferred to ditierent hands. In Clark v. Iowa City we had occasion to speak of bonds 36 5'62 Hartman v. -Greenhow. [Oct. Terra, Opinion of the court. of municipal bodies and private corporatixjns having similar coupons, and the language there used is applicable here. "We said that most of such bonds " are issued in order to raise funds for works of large extent and cost, and their payment is therefore made at distant periods, not unfrequentlj' beyond a quarter of a century. Coupons for different installments of interest are usually attached to such bonds in the expectation that they will be paid as they mature, however distant the period tixed for the payment of the principal. These coupons, when severed from the bonds, are negotiable and pass by de- livery. They then cease to be incidents of the bonds, and become in fact independent claims; they do not lose their validity if, for any cause, the bonds are cancelled or paid be- fore maturity, nor their negotiable character, nor their abil- ity to support separate actions. They then possess the essen- tial attributes of commercial paper, as has been held by this .court in repeated instances." (20 Wall., 589.) Here, also, the coupons held by the petitioner were distinct -contracts, imposing separate obligations upon the State. He Avas not the owner of the bonds to which they had been orig- jivaitly attached. In his hands they were as free and discharged from all liability on those bonds as though they had never ifbeen connected with them. And surely it is not necessary to .argue that an act which requires the holder of one contract to pay the taxes levied upon another contract held by a stranger, cannot be sustained. Such an act is not a legitimate exercise, of the taxing power; it undertakes to impose upon one the burden which should fall, if at all, upon another. The funding act stipulated that the coupons should be re- ceivable for all taxes and dues to the State — that is, for taxes and dues owing by the holders of the coupons — and for their fall amount; and upon this pledge the holders of the bonds of the State surrendered them and took new bonds for two-thirds of their amount. The act of 1876 declares that the coupons shall not be thus received for taxes and dues owing by the holders of them for their full amount, but only for such por- 1880.] Hartman v. GtReenhow. 563i Dissenting opinion. tioii as may remain after a tax subsequently levied upon the^ bonds, to which they were originally attached, is deducted, though the bonds be held by other parties. It" this act does' not impair the contract with the bondholder, who was author- ized to transfer to others the coupons with this quality of re- ceivability for taxes annexed, and also the contract with the bearer of the coupon written on its face that it should be re- ceived for all taxes to the State, it is difficult to see in what way the contracj: with, either would be impaired, even though the tax on the bond should equal the whole face of its cou- pons. If, against the express terms of the contract, the State can take a portion of the interest in the shape of a tax on the bond, it may at its pleasure take the whole. We are clear that this act of Virginia of 1876, section 117, requiring the tax on her bonds, issued under the funding act of March 30, 1871, to be deducted from the coupons originally attached to them when tendered in payment of taxes or other dues to the State, cannot be applied to coupons separated from the bonds, and held by different owners, without impairing the contract with such bondholders contained in the funding act, and the contract with the bearer of the coupons. It fol- lows that the petitioner was entitled to a writ of mandamus to compel the treasurer of the city of Richmond to receive the coupons, tendered to him in payment of taxes due the State,, for their full amount. The judgment of the Supreme Court of Appeals denying- the writ must therefore be reversed and the ease remanded for further proceedings in accordance with this opinion ; and it is so ordered. Miller, J. (dissenting.) — I dissent from the judgment of the court. In addition to the general, proposition which I have always maintained, that no Legislature of a State has author- ity to bargain' away the State's right of taxation, I am of opin- ion that in issuing the bonds and coupons which are the sub- ject of this controversy the Legislature of Virginia neither in- 564: BooGHER V. Life Insurance Co. [Oct. Term, Opinion of the court. terms, nor by any just inference, made any contract that the tonds and coupons should not be subject to the same taxes as other property taxed by the State. Ebversed. Davis E. Booghee, Jesse L. Boogher, EtrFus Eandall, and John B. Nowlan v. The New York Life Insurance Com- pany. 1. Semble that cases tried in the Circuit Courts before a referee, in States wliere such a practice exists, cannot be reviewed iiere. 2. Altiiougli to authorize a review of the decision of a court witliout a jurj' tliei-e must be a written stipulatioji waiving a jnrj', yet wliere facts in the record would seem to indicate it, tlie existence of such a stipula- tion may be presumed. 3. The withdrawal of a juior after tlie trial was begun, and the consent to a referee appearing from the record, is sufficient to give rise to such a presumption. 4. Where there are exceptions to a series of findings of a referee as a. whole, and any one of these findings is correct, the exceptions must be overruled. Error to the Circuit Court of the United States for the Eastern District of Missouri. This was a suit by an insurance company against an agent and his sureties on a bond given by the agent for the faithful performance of his duties. Marshall ^ Barclay and Linden Kent, for appellants. Frederick N. Judson, for appellee. „ Waite, C. J. — By the act to regulate practice in civil cases in Missouri, " all or any of the issues of fact in the action may be referred upon the written consent of the parties." (Wag. Stat., 1041, sec. 17; Gen. Stat., 169, sec. 17.) "All testimony taken before I'eferees shall be reduced to writing, and if either 1880.] BooGHER V. Life Insurance Co. Opinion of the court. party shall except to the competency of a witness, or the ad- mission or exclusion of evidence, or any other matter to which exceptions may he taken, the referees, if required, shall state the particulars of the exceptions in their report." ("Wag. Stat., 148, sec. 39.) " The referees shall, in all eases, report * * * showing the * * * proceedings had, and return the same, together with the testimony taken, to the court." (Id., sec. 40.) "All exceptions to the report * * * shall be in writing, and filed within four days, in term, after the report is tiled." * * * (Id., sec. 41.) " If exceptions are allowed, the matter may again be referred, with instructions, if necessary ; but if the report is confirmed by the court, judgment shall bo rendered thereon in the same manner and with like eff"ect as upon a special verdict." (Id., sec. 42.) In this case the record shows the following entry: "Now come the parties hy their attorneys, * * * and this cause being regularly called for trial, and both parties being ready, it is ordered that a jury come; and thereupon comes said jury, to wit, * * * twelve good and lawful men, duly sworn and impanelled well and truly to try the issues joined herein ; and now, by consent of parties, it is ordered that a juror be with- drawn, and said juror being withdrawn, it is ordered that this cause be referred to Amos M. Thayer for final report, subject, however, to exceptions." Under this order the referee tried the cause and made his report, stating the issues tried and his findings of law and fact thereon. The testimony was returned with the report, and certain exceptions taken before the referee were noted in the return. The plaintiffs in error appeared in court and objected to the confirmation of the report, filing twenty-two separate exceptions. The principal part of these exceptions was to the efiiect that the findings of fact were not sustained by the evidence. The others were as follows : " 4. The conclusions of said referee in said report are not sustained by his findings of fact therein. 6. Said report is erroneous, and not in accordance with law. 8. The referee erred in find- ing that the special plea of release in the answers herein had =566 ' BooGHBR V. Life Insurance Co. [Oct. Term, Ouinion of the court. tiot been sustained. 15. The referee erred in admitting the :accounts mentioned in the report as evidence against the de- fendants. 16. The referee erred in admitting incompetent and irrelevant testimony in favor of plaintift'. 19. The referee erred in admitting in evidence a note of $1,000, dated October 8, 1873." Upon the hearing by the court, the evidence was read, to- /gether with tht> report, and, after argument, the exceptions were overruled as a whole. To this the plaiutifis in error ex- 'eepted generally. A new trial was then moved for and over- iruled. To this another exception was noted. The court there- upon entered judgment as follows : " Now come the said parties by their attorney, "^ * * and the exceptions to the referee's report herein being submitted to the court, and the same having been duly considered, it is ordered that said exceptions be overruled, and that the report of the referee be, and the same is hereby, confirmed and ap- proved, and thereupon this cause is submitted to the court upon the pleadings and the report of said referee; on ( onsideration where&f the court finds that the defendant Davis R. Boogher is indebted to the plaintift!!, by reason of the breaclies of the writing obligatory sued upon, in the sum of twelve hundred and seventeen dollars and fifty-two cents. It is therefore con- sidered," &c. A bill of exceptions was then taken, which set forth the re- *port of the referee ; the testimony before the referee, with the objections noted; the exceptions to the report; the exception to the order of the court confirming the report; the motion fo>r a new trial ; the order overruHng this motion, and the exception *liereto. The errors assigned here are: " 1. That the referee erred in finding in favor of the defendant in error on the counter-claim of D. R. Boqgher, and the court erred in confirming the finding. 2. The undisputed facts in the case, established by the testi- mony of the defendant in error, fail to support the finding of the referee that D. R. Boogher was discharged for good cause, 1880.] BooGHER V. Life Insckance Co. 567 OpinioQ of tho court. because of an ' unauthorized detention of plaintiff's funds,' and the court erred in confirming that finding. 3. The pleadings of the defendant in error are not supported bj any evidence ; and 4. The special plea of discharge made by plaintiff' in error was fully sustained, as appears by the pleadings and findings of the referee, and the court erred in not rendering judgment for plaintiff' in error thereon." It is, to say the least, doubtful whether cases tried in the Circuit Courts by a referee, in States where such a practice exists, can be reviewed here. While, since the act of 1872, (17 Stat, 197, now see. 914, Kev. Stat.,) the practice, pleadings, and f6rms and modes of proceedings in civil causes, other than equity and admiralty causes, in the Circuit and District Courts must conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, the review of a case in this court is regulated by the acts of Congress, and not by the laws of the States. This was decided in United States v. King, 7 How., 844, where the precise question arose under the act regulating the practice of the courts of the United States in the District of Louisiana. (4 Stat, 62.) The Constitution provides (Amend. VII) that "no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The judiciary act of 1789 (1 Stat, 80, sec. 12) provided that the trial of issues of fact in the Circuit Courts should in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury i but it has always been held that, if the parties waived a jury,, a judgment -after trial by the court would not be erroneous, (Kearney v. Case, 12 Wall, 281.) Such a judgment, however,, would not be reviewable here, because, as was said by Chief Justice Taney in Campbell v. .Bayreau, 21 How., 226, " if, by agreement of parties, the questions of fact in dispute are sub- mitted for decision to the judge upon the evidence, he does- not exercise judicial authority in deciding, but acts rather in. 668 BooGHER V. Life Insurance Co. [Oct. Term, Opinion ol' the court. the character of an arbitrator. * * * And as this court cannot regard facts found by the judge as having been judi- cially determined in the court below, there are no facts before us upon which questions of law may legally and judicially have arisen in the inferior court, and no questions therefore open to our revision as an appellate tribunal." To get rid of this difliculty and give parties the right of review here, if they sub- mitted their issues to a trial by the court, the act of 1865 ( 13 Stat, 501, sec. 4; Eev. Stat, sees. 649, 700) was passed. In this way it was provided that issues of fact in civil cases in the Circuit Court might be tried and determined by the court, without the intervention of a jury, "whenever the parties or their attorneys of record file with the clerk a stipulation in writing waving a jury. The finding of the court upon the facts * * * shallhave the same eiiect as the verdict of a jury." Pi'ovision was also made for presenting the rulings of the court in the progress of the trial for review hereby bill of exceptions, and when the finding was special that the review might extend to the determination of the sufficiency of the facts found to support the judgment. The doubt we have is whether the act of 1872 enlarged the existing modes of subjecting cases, to review here. There is no express provision of that kirid, and on its face the act is ■confined to the practice, pleadings, and modes of proceedings in the Circuit and District Courts. Any allusion to a review here seems to have been studiously avoided. The act of 1865 was not repealed. On the contrary, that act, as well as the one of 1872, was brought into the Revised Statutes, and it is now, as section 700, the only statute which provides for a re- view here of cases where an issue of fact in a civil cause has been tried in the Circuit Court otherwise than by a jury. This objection was not raised in the argument, and its final determination may, perhaps, with propriety be postponed, as, if the trial before the referee is ti-eated as a trial by the court, we think the judgment must be affirmed. In Kearney v. Case, Mifra, it was held, that- unless there was a written stipulation 1880.] BooGHER V. Life Insurance Co. 569 Opinion of the court. of the waiver of a jury filed with the clerk, there could be no review of a case tried by the court. Such a stipulation in writing is a prerequisite to our right to re-examine. We said,, however, in that case, (p. 283,) if it aiiirmatively appeared in any part of the record proper that such a writing was made and filed by the parties, we might take jurisdiction, even though the stipulation itself, or a copy of it, should not be sent up with the transcript. It nowhere expressly appears in this case that a stipulation was filed; but inasmuch as an action of this kind could not, under the practice act of Missouri, be referred without the written consent of the parties, and this was referred by con- sent, we think we must assume that a consent was given in such form as to authorize what was done under it. The with- drawal of a juror after the trial was begun, and the consent to a reference, necessarily implied a waiver of a jury, and as this consent to be available must have been in writing, it follows that the waiver which flowed from the consent was also in writing. We think, therefore, it sufficiently appears that the stipulation which the act of Congress requires was entered into. We have often held that the act of 1865 (Rev. Stat., sees. 649, 700) does not permit us to consider the effect of the evi- dence in the case, but only to determine whether the facts found on the trial below are sufficient to support the judgment, and to pass on the rulings of the court in the progress of the trial presented by a bill of exceptions. For all the purposes of our review, the facts as found and stated by the court below are conclusive. (The Abbotsford, 99 U. S., 443, and the cases there cited.) Neither can we consider this case unless the facts found by the referee, when confirmed by the court, are treated as the finding of the court. In that way alone can it with propriety be said that the facts have been determined judicially by the court, so as to be made the foundation of a review here of the questions of law properly raised on them in the record. Upon the facts as found and reported; there can be no doubt 670 BooGHER V. Life Insurance Co. [Oct. Terra, ODinioh of the court. of the correctness of the judgment. Indeed, no complaint is made, by an assignment of error or otherwise, on that account. This brings us to a consideration of the bill of exceptions, and the only exceptions which we there find to the rulings of the court are, (1) to the overruling of the objections to the referee's report, and (2) to the order overruling the motion for a new trial. We have many times decided that the rulings of the Circuit Courts on motions for a new trial are not reviewable here on writ of error. (Railway Co. V. Twombly, 100 U. S., 81.) The whole case, therefore, turns on the exception to the overruling of the objections to the report. This exception is a general one to the single order overruling the twenty-two specific objections as a whole. "We have uniformly held that "if a series of propositions is embodied in instructions [to the jury], and the instructions are excepted to in a mass, if any one of the propositions is correct the exception must be overruled." (Johnston i'. Jones, 1 Black., 220; Eogers v. The Marshall, 1 Wall., 654 ; Harvey v. Tyler, 2 Wall., 338 ; Lincoln v. Claflin, 7 Wall., 139 ; Beaver v. Taylor, 93 U. S., 54.) The same rule should be applied to cases of this kind. Here are, so to speak, a series of pi'Opositions in respect to the report of the referee. They were overruled and excepted to in a mass. If one of the propositions was correct, therefore, the exception will not be .good. The party should, by his exception, direct the attention of the court to the speciMc proposition or propositions on which he relies, and separate it or them from the rest. Among the objections to the report included in the general exception are many relating to the sufKciency of the evidence to support the iindings. These cannot be re-examined here. But if we consider the action of the court on the objections to the sufficiency of the evidence as not included in the general exception, the difficulty is not removed, because the five re- maining objections embrace separate matters. Some of them are confessedly not well taken, and have not been mentioned here, either in the argument or assignment of errors. Only one is relied on, and that the eighth, which is to the effect that 1880.] Wilson v. McNamee. 571 Opinion of the court. the referee erred in finding that the special plea of release had not been sustained. This, taken in connection with the plead- ings, raises the question whethei* the legal effect of the second agreement between the parties, which was in writing and set forth in the complaint, was to cancel and discharge the bond sued on. We have no hesitation in saying that it did not. The bond was not one of the agreements which that instrumelit abrogated. This disposes of the case and leads to an affirmance of the judgment, which is ordered. Affirmed. Allston Wilson v. Sarah A. McJSTambe, executrix of Charles McNamee, deceased. 1. The statute of New York imposing compiilsatory pilotao;e is valid as a police regulation, or even as a l-eg'ulatioa ol commerce, in the absence Of legislation by Congress on the subject. 2. As a vessel at sea can-ies with it the local legal rights and jurisdiction, a tender of pilotage, under a State statute,, made at sea from a pilot boat, is valid. Error to the Court of Appeals of the State of New York. James S. Stearns, for plaintiff in error. George W. Blunt and John K. Porter, for defendant in error. Swatnb, J. — The defendant in error tendered his services, as a licensed Sandj-IIook pilot, to conduct the schooner E. E. Racket by waiy of Sandy Hook to the port of New York. The tender was made at sea, about fifty miles from that port. The vessel was from a foreign port, sailing under register, and drew nine feet of Wjater. The master refused to accept the services of the pilot, and came into port without one. The pilot demanded the compensation allowed by the local State law upon the tender being made. Payment was refused, and 572 "Wilson v. McNamee. [Oct. Term, Opinion of the court. this suit was thereupon instituted by the defendant iu error in the District Court of the city of New York for the first judi- cial circuit. That court gave judgnaent in his favor. The case was thereupon removed by appeal to the proper Court of Com- mon Pleas, aud subsequently to the Court of Appeals of the State. Those courts successively affirmed the judgment. ■ The plaintiff in error thereupon brought the case before us by this writ of error for review. The only point argued here was the validity of the pilot law of New York with reference to the Constitution of the United States. At the close of the opening argument of the learned coun- sel for the plaintiff in error, we announced that the affirmative of the question thus presented was so well settled by the re- peated adjudications of this court, that we had no desire to hear the counsel for the defendant in erivjr upon the subject. Thereafter the counsel who had been heard submitted a memorandum, in which he called our attention particularly " to the tenth point of the brief of the plaintiff in error, namely, that the tender took place outside of the jurisdiction of the State of New York. "> He added: "This question has never yet been passed upon by this court in either of the other pilot cases." Our opinion will be confined to that subject. There are several answers to the suggestion. 1. The objection does not appear to have been taken in the Circuit Court, and cannot, therefore, be considered here. (Everett v. Elliott, 21 Wall., 537.) 2. A vessel at sea is considered as a part of the territory to which it belongs when at home. It carries with it the local legal rights and legal jurisdiction of such locality. All on board are endowed and subject accordingly. The pilot, upon his boat, had the same authority from the laws of New York to tender and demand employment, and the same legal con- sequences, under the circumstances, followed the refusal of the master, as if both vessels had then been infra fauces terras, 1880.] Wilson v. McNamee. 573 Opinioq of the court. where the municipal jurisdiction of the State VTas complete and exclusive. The jurisdiction of the local sovereign over a vessel, and over those belonging to her, in the home port and abroad on the sea, is, according to the law of nations, the same. (Dana's Wheat., p. 169, sec. 100; 1 Kent's Comm., 27; Vattel, Book 1, ch. 19, sec. 216; 2 Rutherford's Inst, Book 2, ch. 9, sees. 8, 19.) The principle here recognized is, of course, subject to the paramount authority of the Constitution and laws of the Uni- ted States over the foreign and interstate commerce of the country, and the commercial marine of the country engaged in such commerce, and subject also to the like power of Con- gress "to define and punish piracies and felonies committed on the high seas and offenses against the law of nations." (See ex-farte McNeil, 13 Wall, 240.) Speaking of the universal law of reason, justice, and con- science, of which the law of nations is necessarily a part, Cicero said: "Nor is it one thing at Rome and another at Athens, one now and another in future, but among all nations it is, and in all time will be, eternally and immutably the same." (Lactantius Inst. Div., Book 7, ch. 8.) 3. Conceding that the pilot laws of the several States are regulations of commerce, Mr. Justice Story said: "They have been adopted by Congress, and without question ai'e controlla- ble by it." (2 Story on the Const., sec. 1071.) Chief Justice Marshall, in Gibbons v. Ogden, said: "When the Government of the Union was brought into existence, it found a system for the regulation of pilots in force in every State. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress." (9 Wheat., 207.) The long- continued silence of Congress, with its- plenary power, in the presence of such legislation by the States concerned, is itself an implied ratification and adoption, and is equivalent in its consequences to an express declaration to that efl'ect. (Atkins V. The Disintegration Co., 18 Wall., 306.) 574 Kahn v. Smelting Co. [Oct. Term, Opinion of the court. The several acts of Congress bearing on the subject are fully i-eferred to in ex-parte McNeil, supra. In that ease, and in the earlier and more elaborate case of Coole)' v. The Bofird of Wardens of the City of Philadelphia, 12 How., 299, this sub- ject, in all its aspects, was so fully considered that further remarks on the present occasion are deemed unnecessary. The judgment of the Court of Appeals of the State of JSTew York is affirmed. Affirmed. Samuel Kahn v. The Central Smelting Company, Frederick H. Myers, John W. Kerr, Henry Wadsworth, William Sloan, William McQueen, and Isador Morris. 1. Mining paitnevships, unlike ordinary pai-tnership?, aie not (lissolvedby tlie death or bankruptcy of one of its members, or the assignment of liis interest. 2. Wliore two of t1iri>e co-tenants of a mine assign their interest, there is a siifflcient co-tenancy between the remaining co-tenant and such assign- ees to enable him to maintain a suit against tliem for an accounting. Appeal from the Supreme Court of the Territory of Utah. John R. McBride and George. H. Williams, for appellant. Shellabarger ^ Wilson, for appellees. Field, J. — This is a suit to compel the defendants to account for the proceeds of a mining claim in Utah, known as the Montreal claim, and to pay over to the plaintiff the amount to which he may be entitled upon such accounting. The complaint alleges that on the 14th of December, 1874, the plaintiff and two other persons, by the name of Deronso and Berassa, were the owners and tenants in common of the claim, each having an undivided third ; that they then entered into an arrangement to work the claim for the ores and metals it contained, and from that time until February, 1876, they were a mining partnership 1880.] Kaiin v. Smelting Co. 575 Opinion of the court. engaged in working the mine, bearing the expenses and sharing the prolits equally, Deronso and Berassa having the immediate direction, control, and management of its working; that on the 1st of February, 1876, his associates sold and transferred their interest in the mine, and in the tools, implements, and appur- tenances connected therewith, to the defendant Isador Morris, through whom the other defendants immediately acquired all the rights they possess ; that from that time until the 10th of April, 1876, the defendants were in full charge and possession of the property, and extracted from the mine and sold about sixteen hundred tons of ore, worth about forty-iive thousand dollars, the expense of extracting and marketing of which did not ejcceed ten thousand dollars ; that since the 1st of Febru- ary the plaintitf has been a partner with the defendants in the mining claim and is entitled to his share of the proiits made — being one-thii-d of the whole — and has demanded of the de- fendants a statement of their work and an accounting, but they have refused to comply with his demand, or to give him any information on the subject or any share of the profits, and have denied him access to the books of account of the concern, and that the protits amount, according to his information and be- lief, to about $35,000. He therefore prays for a decree estab- lishing the partnership between him and the defendants, and directing an accounting from them and the payment of the aniount found due to him upon such accounting; and for such other and further relief as to the court may seem meet and equitable. The answer of the defendants traverses the allegations of the complaint, and avers that on the 31st of January, 1876, the defendant Isador Morris found Deronso and Berassa in the actual possession of a portion of the Montreal mine, of which they claimed to own two-thirds; that^ believing they owned such interest, Morris paid to them $25,000 for it and received a quitclaim deed from them; that on the following day, for the hke. sum, he conveyed, by a similar deed, that interest to one Wadsworth, in trust for such persons as a majority of the 576 Xahn v. Smelting Co. [Oct. Terra, Opinion of the court. members of the Sandy Smelting Company of Salt Lake City might direct, and that afterwards such majority conveyed the same to the defendant, the Central Smelting Company, re- maining, however, in the possession of and working the mine until about March 1, 1876, when the smelting company took possession of it and afterwards held it exclusively until the 1st of April following. The answer further avers that a short time prior to this last date the mine was claimed by another company called the Old Telegraph Company, under an. older location; that thereupon the Central Smelting Company and its vendors caused the prior location and the mining claim to be carefully examined by experienced miners, and upon that examination they became satistied that the older location and the Montreal mine were one and the same vein or lode, and that the Montreal mine was owned by the holders of the earlier location ; that, having become thus satistied of this fact, the Central Smelting Company abandoned the Montreal mine, and has not since held, used, or occupied the same, or exercised any acts of ownership over it. The answer farther avers that the defendants never worked the Montreal mine or extracted ore from it, under any agree- ment with the plaintift", or by his advice or consent, or in con- junction with him or as his mining partners; that they have alwaj^s refused to recognize him as a party in any work, labor, or management or business of the mine ; that the proceeds of the mine received by the Central Smelting Company and its immediate vendors, after deducting the expenditures, show a net profit of about $12,000, which the defendants hold imtil the determination of suits now pending between the plaintift' and the owners of the alleged earlier location; that those suits are brought to determine whether the Montreal mine and the earlier location are one and the same lode, and which of the parties is entitled to its possession and the proceeds ; and the defendants pray for their protection that the prosecution of this suit may be restrained until those suits are determined. 1880.] Kahn v. Smelting Co. 577 Opinion of the court. On the trial evidence was produced by both parties, and from it the court found as facts : First. That there was no partnership between the plaintiff and the defendants, as charged in the complaint. Secojid. 'WsX there was no such co-tenancy between them in the mine in controvei-sy as entitled the plaintiff to an account- ing; and, as a conclusion of law, that he had no I'ight to re- cover in the action, and that the suit should be dismissed. These findings were filed November 21, 1877, and judgment upon them was entered the same day. From this judgment the plaintiff appeals to this court. Fourteen days after its entry the judge who heard the case, at the request of the plain- tiff, filed further findings of fact. It does not appear that any notice was given to the defendants of any intended application to the court to make any findings in addition to those originally filed; and to make such findings without such notice was. irregular. • The practice if permitted would lead to great abuses,. It is not absolutely necessary in any case that the findings should accompany the announcement of the decision of the court; but when they are required — and by the practice estab-n- lished in Utah they are required in all cases where issues of fact are tried without a jury — they should be filed before the entry of the judgment or decree, as, in such cases, uipon them the judgment or decree rests. If either party is- dissatisfied with them, and desires more full or additional ones„be should, within a reasonable time during the same term, and before au appeal is taken or a writ of error sued out, apply to. the court, upon proper notice to the adverse party, to make such fuU^r or additional findings; and if the application is^ granted,: the additional findings should show on their face why they .are made. The additional findings in this case not having -beea thus made, were properly stricken from the transcript. Taking, then, the original findings, let us examine whether they meet the issues raised by the pleadings and support the decree; for under the practice of Utah, where, in a case seeking equitable relief, the facts are found by the court, (and not by a master 37 578 Kahn v. Smelting Co. [Oct. Term, Opinion of the court. or a jury, where the iindhigs are merely advisory,) they will be taken as its conclusions upon the evidence, and their sufHcienc} for the decree I'endered will be considered. The plaintiff avers that his association with his co-tenants of the mine was a mining partnership, and seeks to enforce his rights as a member of such partnership, and to obtain such other and further relief as he may be .equitably entitled to. The opinion of the judge before whom the case was heard shows that he did not recognize the existence of any partner- ship in mines differing from ordinary partnerships, and his finding that there was no partnership, as alleged, between the plaintiff' and the defendants, necessarily followed. The alle- gations of the complaint, whilst asserting a mining partnership, show that no other partnership existed after the sale of Deronso's and Berassa's interest. Such sale would have ended any ordi- nary' partnership. Mining partnerships, as distinct associations, with different rights and liabilities attaching to their members from those attaching to members of ordinary trading partnerships, exist in all mining communities ; indeed, without them successful raining would be attended with difficulties and embarrassments much greater than at present. In Skillman v. Lockman the question of the relation existing between parties owning sev- eral interests in a mine came before the Supreme Court of California, and that court said, that "whatever maybe the rights and liabilities of tenants in common of a mine" not being worked, it is clear that where the several owners unite and co- operate in working the mine, then a new relation exists be- tween them ; and, to a certain extent, they are governed by the rules relating to partnerships. They form what is termed a mining partnership, which is governed by many of the rules relating to ordinary partnerships, but also by some rules pecu- liar to itself, one of which is that one person may convey his interest in the mine and business without dissolving the part- nership." (23 Cal., 203.) The same doctrine is asserted in nu- merous other cases, riot onlj' in that court, but in the courts of 1880.] Kahn v. Smelting Co. 579 Opinion of the court. England. Associations for working mines are generally com- posed of a greater number of. persons than ordinary trading partnerships; and it was early seen that the contirmous work- ing of a mine, which is essential to its successful development, would be, impossible, or at least attended with great difficulties, if an association was to be dissolved by the death or bank- ruptcy of one of its members, or the assignment of his interest. A diii'erent rule from that which governs the relations of mem- bers of a trading partnership to each other was, therefore, recognized as applicable to the relations to each other of mem- bers of a mining association. The delectus personae, which is essential to constitute an ordinary partnership, has no place in these mining associations. (Duryea v. Burt, 28 Cal., 569 ; Settembre w." Putnam, 30 Id., 490; Taylor v. Castle, 42 Id., 309.) There are other consequences resulting from this pecu- liarity of a mining partnership, particularly as to the power of individual members to bind the association, upon which there is no occasion now to express any opinion. (Skillman v. Lock- man, supra; Dickinson v. Valpy, 10 B. & C, 128 ; Ricketts v. Burnett, 4 Q. B., 686.) But if the relation of the plaintifi" to his associates could not be considered as one of a mining partnership, he was still entitled to an accounting from them, if, as alleged by him, he was joint owner with them in the mine. They went into pos- session of the property under a conveyance from his co-tenants, and admit that whatever proceeds they have received from it were taken under a claim of ownership derived from that source. They have, upon their own averments, only a claim, in any event, to two-thirds of the proceeds ; and if the plain- tiff was a tenant in common with them, they can only refuse his demand to the other third by repudiating their own right to any portion. If a co-tenant, he had a right to call for an accounting, whatever might be the ultimate result of the claim of third parties to the whole proceeds as the owners of the mine under a pribr location. He was, therefore, entitled to a finding on the question of his co-tenancy. The judge of the 580 . Kahn v. Smelting Co. [Oct. Term, Opinion of the court. District Court seemed to recognize this position, for, after find- ing that there was no partnership — following in this respect his peculiar notions as to the non-existence of such an associa- tion as a mining partnership — he passed upon the claim to an accounting as a tenant in common of the mine with the de- fendants, and found " that there was no such co-tenancy be- tween the plaintiff and defendants in the mine in controversy as entitled the plaintiff to an account." This is not a suffi- cient finding of fact upon which to base a decree ; it does not state that there was no co-tenancy between the parties; it .implies that there was a co-tenancy ; it only states that there was not such an one as entitled the plaintiff to an accounting. This is a mere legal inference, not the finding of a fact. If a co-tenancy of any kind existed, it is a question of law whether or not it entitles one co-tenant to an accounting from the others. In considering the whole case, we think that justice will be subserved hj a new hearing. The defendants recognize the possibility of the plaintiff ultima,tely establishing his riglit to a portion of the proceeds of the mine in their hands against the claimants of the alleged earlier location. They aver that they hold the proceeds subject to the determination of pending suits between those parties. The present decree, if affirmed, would cut oft" any claim of the plaintiff", even should he pi-evail in that litigation. The decree will be, therefore, reversed and the cause re- manded, with direction to the Supreme Court of the Territory to send it to the District Court for a new hearing, the parties to be at liberty to produce new proof's; and it is so ordered. Eeversed. 1880.] Bamberger v. Terry. 581 Opinion of the court. Leopold Bamberger v. George E. Terry, receiver. 1. Where the deft'iuliiut waived ajnry, but, after the allowance of an amendment to the plaintifT's dfclaration, pleaded to the amended declaration and then demanded a jni-y, the refusal of such demand by the court was a matter in Its discretion, and which did not in this case prejudice the defendant's rights. 2. Section 954 of the Revised Statutes authorizes the allowance of amend- ments dui-lng the trial. Error to the Circuit Court of the United States for the Dis- trict of Connecticut. R. B. Warden and S. W. Johnston, for plaintiff in error. S. W. Kellogg and George E. Terry, for defendant in error. Waite, C. J. — This record shows that on the 25th of May, 1876, Bamberger, the defendant below, moved that the cause be entered on the jury docket of the court "pursuant to the statute in such case provided, and as gf right he may demand." Afterwards he stipulated in writing that the cause be tried by the court. This was equivalent to a waiver of a jury. The stipulation was duly filed and entered of record. Afterwards the parties appeared and the case was tried by the court. At the close of the testimony, TerryJ the plaintiff below, asked and, against the objection of the defendant, obtained leave to amend his declaration so as to avoid a variance between the pleadings and the proof. The defendant then put in a general denial to the amended declaration, and demanded a jury trial. This the court refused, but gave the defendant leave to intro- duce additional evidence, if he desired. By section 954, Ee vised Statutes, the trial court may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its dis- cretion or by its rules, prescribe. This clearly authorizes the allowance of amendments, during the progress of a trial, in furtherance of justice. When such an amendment is permit- 582 Trimble v. Woodhead. [Oct. Term, Opinion of the court. ted, the court most, in its discretion, determine whether any submission which has been made ought to be vacated. Here the court decided that it ought uot, and in this we see nothing wrong. Neither the nature of the case, nor the real issue be- tween the parties, as it had been tried, was changed by the amendment. All that had been done was to present by the pleadings, fairly and on its merits, the controversy as it had actually been tried. The judgment is affirmed. i^EFIRMED. James S. Trimble v. Joshua Woodhbau and Ann Woodhead. 1. Wlipre a debtor has gone into bankruptcy and an assignee Iiiis been appointed, a creditor cannot attack in liis own name a conveyance from tlie debtor to his wife on the ground that it is fraudulent as to civditors, the right to bring such suit being solely in the assij;nee for the benefit of the creditors. 2. Nor can the fact that the assignee has neglected toTjring the suit till barred by the two years' statute of limitations give a creditor .such a right. Appeal from the Circuit Court of the United States for the District of Kentucky. " /. G. Carlisle and James G'llara, Jr., for appellant. Stanley Matthews and William M. Ramsey, for appellees. Miller, J. — The appellant, who was plaintiff below, brought his bill in chancery in the Circuit Court for the District of Kentucky, and after hearing on bill, answer, I'eplication, and evidence, it was dismissed. The substance of the bill is, that Joshua Woodhead was largely indebted to him for government bonds and money loaned, for which he had recovered judgments that had proved unavailing; that Ann Woodhead, the wife of Joshua, held 1880.] Trimble v. Woodhead. 583 Opinion of the court. the legal title, to certain valuable real estate, on which was a flouring mill and other improvements; that the land was pur- chased by Joshua's money and the title made to Ann with intent to defraud the creditors of Joshua, and that valuable improvements had been placed on the land, the payment for which was made by Joshua's money. The prayer of the bill was to subject this land to sale for the payment of plaiutiii"'s judgment. The answer of Ann denied all this, and also set up as a bar to the relief prayed a former suit in one of the State courts concerning the same subject between the same parties. The record of the proceedings in the State court is set out in full, and much evidence on both sides as to the main allegation of fraud alleged in the bill in the present suit is found in the record, all of which, in the view we take of the case, is imma- terial. The defendant Joshua answered, " that long before the bring- ing of this suit this defendant had filed his petition in this honorable court under the bankrupt law of the United States, and the said orator, the said James S. Trimble, was duly noti- fied of the same, and the claim of the said orator was therein set forth, and after the proper proceedings as prescribed in said law this defendant was on his petition adjudged a bankrupt, andbya judgment of this court he was finally discharged from all of his indebtedness, and the claim of the or.ator was one of the debts from which he was thus discharged. He files here- with a copy of his judgment of discharge as part hereof." The proceedings in bankruptcy are not found in this record, nor have we been able to find in it a copy of Woodhead's dis- charge, but the answer of Woodhead is sworn to. The plaintift' also filed an amended bill, in which he makes John T. Levis a defendant, who he alleges to be assignee in bankruptcy of the defendant Joshua. He says in this amended bill that the judgment recovered by him in the State court was obtained after the discharge of said Woodhead as a bankrupt. It may, therefore, be accepted as established by the pleading,. 58J: Trimble n. Woodhead. [Oct. Term, Opinion of the court. that Woodhead was regularly discharged of all his debts by proceedings iu bankruptcy, and that in -those proceedings John T. Levis was made the assignee, with the usual effect of such an appointment. It is as well to observe here that while the amended bill of plaintift' made Levis a defendant in his character of assignee, and the recdrd shows an order of court for process to issue against him, no such process, nor any other notice to him, nor any appearance by him .or for him, is found in the record. As to him, therefore, and the rights represented by him, the bill is of no effect. The case of Glenny v. Langdon, 98 U. S. E., 20, conclu- sively establishes the proposition that the rights asserted in this bill passed to the assignee in bankruptcy of Woodhead, and that a creditor of Woodhead cannot assert them in his own name. In that case the plaintiii" sought to avoid this difficulty by alleging that he had requested the assignee to bring suit or assert the right in some other way, who had refused to do so. That made a stronger case than the present one, where no such application was made. The abortive effort to make the assignee a party without service of process or appearance for him does not help the case. 'Not can we attach much importance to the allegation in the amended bill, that two years had elapsed without suit by the •assignee, for the assignee might not have discovered the fraud, or if brought judicially into court might have asserted his right not only against plaintiff, but against Mrs. Woodhead, for the ■beuelit of all the creditors. We do not see on what principle the failure of the assignee to sue within two years transfers his right of action to plain- -iitf. The right was certainly in the assignee. That right, if barred rby the statute of limitations, would, if it had any effect on the title, make good the title of defendant. (See Meeks v. Olph- .erts, 100 U. S. E., 564.) It seems to be well settled that, in 1880.] Trimble v. "Woodhead. 585 Opinion of the court. regard to real estate, the undisturbed possession of the wrong- doer for the time necessary to bar the action makes, of itself, a good title in the party holding such possession. It would be a curious application of this principle in tlie present case, which concerns real estate, to hold that this same lapse of time, instead of making good defendant's title, or acting as a bar to the right to bring suit, transfers that right to another unimpaired by the lapse of time. Nor is the creditor of a bankrupt .without remedy in such case as the present. If he is aware of the existence of prop- erty or credits which should rightiully go to the assignee for the beuefit of the creditors, he should inform the assignee of all he knows on the subject, and request him to proceed by suit, if necessary, to recover it. If he declines, a petition to the court of original jurisdiction would, if a proper case was made, compel the assignee to proceed. (See Glenuy v. Lang- don, already cited.) Indeed, the whole question is so fully considered in that case that little more need be said. We may, however, suggest consequences readily to be seen if auy other doctrine were held. The- primary object of the bankrupt law is to secure the equal distribution of the property of the bankrupt of every kind among his creditors. This can only be done through the rights vested in the assignee and the faithful discharge of his duties. Let us suppose, however, that a creditor of the bank- rupt is aware of the existence oi' property of the bankrupt suffi- cient to satisfy his own debt, which has not come to the pos- session or knowledge of the assignee. He has but to keep silence for two years and then bring suit in his own name against the fraudulent holder of this property, and make his debt really at the expense of the other creditors. Or he may have an understanding with the bankrupt, who, after two year's, and after his own discharge from all his debts, may confess judgment to this creditor and furnish him the evidence to prove the fraud, afld thus secure him a preference forbidden by the act itself. 586 Ogdbn v. Daviess County. [Oct. Term, Opinion of the court. In the present case, if any right exists to subject this prop- erty in the hands of Ann Woodhead to the payment of the debts of her husband which existed prior to the bankruptcy proceedings, that right is in the assignee, and such right is not divested by anything shown in this case. The bill of the appellant was, therefore, properly dismissed, and the decree is affirmed. Affirmed. Jambs U. Ogden v. The County of Daviess. 1. The act of Missouri of Jaiiimry 4, 1860, authoi-izing the, inliabitants of a certain "strip of country " to subscribe to tlie stock of a railroad passing- through it, and to levy a tax to pay the subscription, does not anthoiize the issuing of bonds to pay such subscription by so antici- pating the tax. 2. Neithei' the act of March 3, 1868, amended March 24, 1870, autborizing " municipal townships " to pay former subscriptions to railroad stocli in bonds, nor tlie act of March 24, 1868, authorizing " counties, cities, and towns " to do the same, authorizes tlie issue of the above-men- tioned bonds, as these acts apply only to such public corporations as entireties, and not to a " strip of country " containing the aggrega- tion of many parts of such townships, &c. 3. The issue of such bonds being wholly unauthorized, and' ultra vires, they are void even in the hands of a hona-fide holder. Eeroe to the Circuit Court of the United States for the Western District of Missouri. J. E. Merrynwm, for plaintiff in error. B. H. Brisioio and W. S. Opdyke, for parties collaterally in- terested. Willard P. Hall, for defendant in error. "Waite, C. J. — On the 4th of January, 1860, the General Assembly of Missouri incorporated the Platte City and Des Moines Railroad Company, now, by statutory change of name. 1880.] OsDEN V. Daviess County. 687 opinion of the court. the Chicago and Soutliwestern Railway Company. Section 7 of the charter is as follows : " Section 7." Upon the presentation of a petition of the presi- dent and directors of said company to the County Court of any county through which said road may be located, praying that a vote may be taken in any strip of country through which it may pass, not to exceed ten miles on either side of said road, that the inhabitants thei'eof are desirous of taking stock in said road and of voting upon themselves a tax for the payment of the same, it shall be the duty of said County Court to order an election therein, and shall prescribe the time, place, and man- ner of holding said election; and if a majority of the taxable inhabitants shall determine in favoc of the tax, it shall be the duty of said court to levy and collect from them a special tax, which shall be kept separate from all other funds and appro- priated to no other purposes, and as fast as collected shall cause the same to be paid to the ti*easurer of said company." On the 4th of July, 1865, a new Constitution of Missouri went into eft'ect, section 14, article 11, of which is as follows: " The General Assembly shall not authorize any county, city, or town to become a stockholder in or to loan its credit to any company, association, or corporation, unless two-thirds of the quahtied voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto." By an act to facilitate the construction of raih'oads, passed March 23, 1868, municipal townships in any county of Missouri were authorized to subscribe, throug"h the County Court of the county, to the stock of railroad companies, with the assent of two-thirds the qualified voters of the township, and to pay their subscriptions with bonds in the name of the county, payable out of a special tax to be levied on the real estate of the township. On the 24th of March, 1870, the General Assembly amended this law by adding the following as section 7: "In all cases where, by the provisions of the charter of any railroad company or- ganized under the laws of this State, the taxable inhabitants of a portion of a municipal township of any county in this State 588 Ogdbn v. Daviess County. [Oct. Term, Opinion of the court. have voted,or may hereafter vote, to take stock iu such railroad company, they are hereby declared entitled to and shall have all the privileges, rights, and benefits in said act conferred upon counties or townships; and the County Court of such county shall exercise the same powers and perform the same duties in issuing bonds, levying, collecting, and paying over the taxes which it is required to iu the case of a county or township under the provisions of said act: Trovided, hmoeoer, That no part of such township outside the limits of the district Voting shall be taxed to pay any of the bouds or coupons so issued by the County Court. This act shall take effect from its passage." After the jjassage of this act, the Daviess County Court, on the' petition of the Chicago and Southwestern Railway Company, ordered an election on the 21st day of June, 1870, to obtain the assent of the "taxable inhabitants living within a strip of five miles on each side of the line of said railway to be built through the county of Daviess, * * * to the subscription by the county of Daviess, for and on behalf of the taxable inhabitants of said strip, of the sum of sixty thousand dollars of the capital stock of said railwa}' company, on such teems and. conditions as the court should deem proper." Thereupon the court fixed, as one of the conditions of the subscription, that " in payment of said subscription sixty bonds shall be issued by said county to the Chicago and Southwestern Railway Company, * * * of one thousand dollars each, payable ten years after date, with interest at the rate of eight per cent, per annum, evidenced by semi-annual coupons,"'&c., &c. The election was held, and resulted in 568 votes for the subscription and 400 against it. The County Court subscribed the stock, and to pay the sub- scription issued and delivered to the company bonds in the following form : " United States of America. "$1,000.] State of Missouri, County of Daviess. [$1,000. "Daviess County Ten-Year Bond, No. 3. " Know all men by these presents : That the county of Da- viess, in the State of Missouri, acknowledges itself to owe and 1880.] Ogden v. Daviess County. 689 OpinioD of the court. be indebted to, and promises to pay tbe bearer the sum of $1,000 on the 1st day of August, in the year of our Lord one thousand eight hundred and eighty, for value received, nego- tiable and payable without defalcation or discount at the Met- ropolitan National Bank,"in the city and State of New York, with interest thereon from the 1st day of August, A. D. 1870, at the rate of eight per centum per annum until paid, which interest shall be due and payable semi-annually on the 1st day of February and August in each year, on the presentation of the proper interest coupon, as annexed hereto, attested by the signature of William M. Bostaph, clerk, at the said Metropol- itan National Bank. This is one of sixty bonds of like date, amount, and effect, numbered from one to sixty, both num- bers inclusive, issued in payment of the indebtedness of said county of Daviess to the Chicago and Southwestern Railway Company, incurred on account of an election held in said county on the 21st day of June, A. D. 1870, by certain' taxa- ble inhabitants of said county. "In testimony whereof, the said county of Daviess, by order of its County Court, has caused these presents to be executed by the signatui'e of the presiding justice of said court, attested by the clerk thereof, with the seal of said county affixed, at oiEce in Gallatin, Daviess county, Missouri, this 27th day of July, A. D. 1870. . "Peter Bear, " Presiding Justice. "Attest: William M. Bostaph, Clerk.'" [Seal of Daviess County Court. Mo.] Coupon Described in Amended Petition. The coupon is in words and figures following, to wit: " $40. Gallatin, Mo., July 27, 1870. " County of Daviess, in the State of Missouri, will pay to the bearer $40 on the 1st day of February, 1873, at the Met- ropolitan National Bank, in the city and State of New York, for value received, being the serai-annual interest due on bond No. 3 of said county, issued to Chicago and Southwestern Railroad Company. William M. Bostaph, Clerk." 590 Ogden v. Daviess County. [Oct. Term, Oninion of the court. When the delivery of the bonds was made, the interest coupons were cancelled to September 1, 1871. The coupons for 1873 were not paid, and this suit was brought to recover what was due on that account. The plaintift' is a bona-fid.&. holder of the coupons. On the trial the judges of the Circuit Court were divided in opinion on several questions which have been certified here, the principal of which is whether there was lawful authority for the issue of the bonds. The presiding judge being of the opinion that there was not, judgment was given in favor of the county, and to reverse that judgmeiit this writ of error was brought. We think the presiding judge was right in the view he took of the controlling question in this case. Without doubt, sec- tion 7 of the charter of the company authorized the taxable inhabitants of the " strip of country" designated to vote a tax upon themselves to take stock, and required the County Court to levy and collect such a tax if voted, and pay over the money as fast as collected to the treasurer of the company ; but in this we find no authority for the county to issue bonds in anticipation of the tax. The taxable inhabitants of the strip of country could not themselves make a bond, and all the County Court could do was to collect and pay over the tax they voted. The inhabitants were not even organized by themselves, much less made a bodj' politic for any purpose. They could vote the tax, if called upon to do so by the County Court, but that was all. The effect of their vote was nothing more than to authorize the County Court to levj', collect, and pay over to the treasurer of the company the special tax they had determined upon. The requirement of the law that the money, when collected, should be paid over to the treasurer of the company, is entirely inconsistent with any idea that the obligations to be met in this way were to be in the form of negotiable paper afloat on the market as commercial securi- ties. Under the provisions of section 6 of the charter, counties, towns, and cities were expressly authorized to issue bonds in payment of their subscriptions. The omission of any such 1880.] Ogden v. Daviess County. 591 Opinion of the court. power in section 7 is conclusive evidence that nothing of the kind was intended in case of " strip " subscriptions. In this particular the case is even stronger than that of Wells v. Pon- totoc County, ante, p. 196, decided at the present term. Neither did the act of March 24, 1870, give the power to issue bonds. That was an act amending what is commonly known as the "township aid law" of Missouri, which related only to subscriptions by municipal townships. The amend- ment granted no new power of subscription, but simply pro- vided that where, under the charter of any railroad company, the taxable inhabitants of a portion of a municipal township had voted or might vote to take stock in the company, the County Court might issue bonds for the stock so taken, to be paid out of taxes levied on property within the limits of the district voting. In the charter of the Chicago and Southwest- ern Company, authority was not given the taxable inhabitants of any portion of a township to take stock, but to the taxable inhabitants of any strip of country through which the road might pass, not exceeding ten miles on either side. This strip was not necessarily part of a township. It might include parts of several townships, or the whole of some and parts of others. As the act amended related entirely to municipal townships as such, and there had before been legislation in relation to strips of country without any reference to townships, it must be pre- sumed that the amendment appliedonly to parts of townships separately, and not to the aggregation of townships or parts of townships which would almost necessarily be included in a strip of country twenty miles wide, or under, along a rail- road as it runs through a county. The bonds which this stat- ute authorizes were to be issued on behalf of a portion of a township, not on behalf of a " strip of country." Under the charter the taxable inhabitants of the strip were to take the stock, and they were to be taxed. We cannot, without a per- version of language, apply the act of 1870 to this provision of this charter. It follows that neither in the charter nor in the 592 Ogden v. Daviess County. [Oct. Term, Opinion of the court. amending act relied on can there be found authority to issue the bonds'in question. On the 24th of March, 1868, the General Assembly of Mis- souri passed an act "to enable counties, cities, and incorpo- rated towns to fund their respective debts." Section 1 of that act is as follows : " That the various counties of this State be, and they are hereby, authorized to fund any and all debts they may owe, aiid for that purpose may issue bonds bearing interest at not more than ten per centum per annum, payable semi-annually, with interest coupons attached; and all counties, cities, or towns in this State which have or shall hereafter subscribe to the capital stock of any railroad company, may, in payment of such subscription, issue bonds bearing interest at not more than ten per centum per annum, payable semi-annually, with inter- est coupons attached. The bonds authorized by this act shall be payable not more than twenty yeai's from date thereof" It is claimed that authority for the issue of the bonds can be found in this law. We do not agree to this. Neither 'the county, nor a city, nor a town took the stock now in question. The county did not owe any debt. The taxable inhabitants of the " strip of country " had authority to vote to tax themselves for the stock. In this way they could bind themselves, but that did not create a debt of the county, as such, for which funding bonds might be issued. The debt, if any, was of the " strip " only, and not the county. As no bond could be issued under the original vote, the county assumed no obligation whatever. The County Court and other officers of the county could be compelled to levy, collect, and pay over the tax, but that was all the county or its officers were required to do. We have always held that everj' holder of a municipal bond is chargeable with notice of the provisions of the law by which the issue of his bond was authorized. If there was no law for the issue there can be no valid bond. On the face of these bonds it appears that they were issued to the Chicago and Southwestern Company on account of an election held by " cer- 1880.] The United States v. Chouteau. 593 Statement of the case. tain taxable inhabitants of the county." This clearly connects the bonds with the Chicago and Southwestern charter, and indicates unmistakably that tliey were put out on account of a "strip" subscription. The holder is, therefore, chargeable with notice of the want of legal authority for their issue. The principal question certified is answered in the negative, and, without specially replying to the other further than may be implied from this opinion, the judgment is affirmed. Answered in negative and affirmed. The United States v. Joseph G. Chouteau, James C. Edwards, AND Norbert S. Chouteau. 1. In an action upon a distiller's bond, conditioned to complj- with the provisions of law in relation to the dnties of distillers, and pay all fines and penalties imposed for a violation of any sncli provision, the plain- tiff's petition allcues that by means of the omission of a certain speci- fied dnty the petitioner was enabled to defraud the govei-nn'ient. The sureties on such bond ai-e not liable for a loss arising to the govern- ment, not by snch omission, but from other causes. 2. Sureties on a distiller's bond are not liable for the penalty attached tO' the commission of an offense when the principal lias effected a full compromise with the government of prosecutions based upon' the- same offense and designed to secure the same penalty. Error to the Circuit Court of the United States for the- Eastern District of Missouri. This is an action upon a bond of a distiller, against the- principal and sureties, and is founded upon sections 3303 and. 3296 of the Revised Statutes. The bond is in the penal sura of $25,000, and after reciting that the principal, Joseph G- Chouteau, intends, after the first day of May, 1874, to be engaged in the business of a distiller within the first collection, district of Missouri, to wit, at Grand avenue and Main street, in the city of St. Louis, in that State, it is conditioned, among other "things, that he "shall in all respects faithfully comply 38 594 The United States v. Chouteau. [Oct. Term, Statement of the case. with all the provisions of law in relation to the duties and busi- ness of distillers, and shall pay all penalties incurred or fines imposed on him for a violation of any of the said provisions." Section 3303 is as follows: "Every person who makes or distills, or owns any still, boiler, or other vessel used for the purpose of distilling spirits, or who has such still, boiler, or other vessel so used under his superintendence, either as agent, owner, or who uses any such still, boiler, or other vessel, shall from day to day make, or cause to be made, in a book or books to be kept by him in such form as the Commissioner of Internal Revenue may prescribe, a true and exact entry of the kind of materials, and the quantity in pounds, bushels, or gallons pur- chased by him for the pi'oduction of spirits; from whom and when purchased, and by what conveyance delivered at said distillery; the amount paid therefor; the kind and quantitj' of fuel purchased for use in the distillery, and from whom pur- chased ; the amount paid for ice or water for use in the distillery ; the repairs placed on said distillery or distilling apparatus ; the cost thereof, and by whom and when made, and of the name and residence of each person employed in or about the dis- tillery, and in what capacity employed. And in another book he shall make like entry of the quantity of grain or other material used for the production of spirits; the time of day when any yeast or other composition is put into any mash or beer for the purpose of exciting fermentation; the quantity of mash in each tub, designating the same by the number of the tub ; the number of dry inches, that is to say, the number of inches between the top of each tub and the surface of the mash or beer therein at the time of yeasting; the gravity and temperature of the beer at the time of yeasting, and on every day thereafter its quantity, gravity, and temperature at the hour of twelve meridian ; also of the time when any fermenting-tub is emptied of ripe mash or beer; the number of gallons of spirits distilled; the number of gallons placed in the warehouse, and the proof thereof; the number of gallons sold or removed, with the. proof 1880.] The United States v. Chouteau. 595 Statemeat of ihe case, thereof; and the name, place of business, and residence of the person to whom sold." Section 3296 is as follows : "Whenever any person removes or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the conceal- ment of any spirits so removed, or removes or aids or abets in the removal of any distilled spirits from any distillery warehouse or other warehouse for distilled spirits authorized by law, in any manner other than is provided by law, or conceals or aids in the concealment of any spirits so removed, he shall be liable to a penalty of double the tax imposed on such distilled spirits so removed or concealed, and shall be fined not less than two hundred dollars nor more than five thousand dollars, and imprisoned not less than three months nor more than three years." The complaint in the action or petition, as it is termed, con- tains eighty-four assignments of breaches of the conditions of the bond, forty-two of which, constituting the odd numbers, are founded upon section 3303, and forty-two, constituting the even numbers, are founded upon section 3296. The difference in the breaches assigned in each class is in respect to the day on which the act constituting the breach is alleged to have been done, commencing on the 2d day of May and ending on the 15th day of August, 1874. The same breach of duty is charged to have been committed on forty-two different days. The breach stated in each of the assignments designated by odd numbers is, that the distiller omitted to make in a book he was required by law to keep a true and exact entry of the kind and quantity of materials used by him in the production of distilled spirits ; that he produced from the grain used a large quantity of spirits, and " that by means of the said omission to make said entry in said book as aforesaid," he " was enabled to defraud, a.nd did defraud, the United States out of the intemal-remnae tax" then imposed by law on the spirits, whereby the United States, were damaged in the sum of $2,100, 596 The United States v. Chouteau. [Oct. Term, Statement of the case. To this breach, in the various assignments, the defendants answer, and deny that by reason of the alleged omission of the distiller to make proper entries in the distiller's book men- tioned he was enabled to defraud, and did defraud, the United States of the tax on distilled spirits produced at" his distillery, or any part of the tax; and state that prior to any of the acts complained of the distiller combined, confederated, and con- spired with certain designated revenue officers and agents, and other distillers and rectiiiers, to defraud the United States of the tax on distilled spirits produced at vai'ious distilleries with- in the first collection district of Missouri-; that in furtherance of this conspiracy, and to accomplish its purpose, the parties concerned in it committed various violations of the revenue laws, and among other things they removed and aided in the removal of distilled spirits from the distilleries without hav- ing first paid tax on them ; they re-used upon packages paid and warehouse stamps which had been previously used; they gave and received bribes and made and coDuiyed at making false and fraudulent reports to the collector of internal revenue within the district of the quantities of spirits produced upon which taxes had become due; that the distiller, by reason of his participation in this conspiracy, was enabled, if at all, to defraud the United States of the tax on distilled spirits pro- duced at his distillery within the period covered by his bond; that the internal-revenue officers charged with the execution and enforcement of the internal-revenue laws had no Occasion to have I'ecourse to the distiller's book and the store-keeper's record kept at the distillery, and did not have recourse to them, or examine them to obtain information touching the quantities of grain used and the numbei' of gallons produced at the distill- ery; and that it was by reason of the oi'ganization and exe- cution of this conspiracy, irrespective of the omission to make the entries mentioned, that the conspirators were enabled to defraud the United States of the tax on spirits produced at the distillery. The breach stated in each of the assignments designated by 1880.] The United States o. Chouteau. 597 Statement of the case. even numbers is, that the distiller removed spirits produced at his distillery to a place other than the distillery warehouse, ■without the internal-revenue tax imposed thereon being iirst paid, thereby incurring a penalty of $2,800, which sum he has not paid. To this breach, in the various assignments, the defendants answer that the United States ought not to maintain their actifin for the penalty denounced in section 3296, for at the November Term, 1875, in the District Court of the United States for the Eastern District of Missouri, two bills of indict- ment were found against Chouteau, the distiller, (the principal upon the bond sued upon,) one of which contained counts founded upon that section, alleging the removal by him and his aiding and conniving at the removal of distilled spirits from his distillery to a place unknown, upon which spirits the rev- enue tax was imposed and had not been paid; the other counts being founded upon sections 3281 and 5440 of the Eevised Statutes; that afterwards, with the advice and consent of the Secretary of the Treasury and upon the recommendation of the Attorney-General, the Commissioner of Internal Eevenue accepted from the distiller $1,000 in full satisfaction, compro- mise, and settlement of the indictment and prosecutions, which were thereupon dismissed and abandoned. And the defendants, further answering, state "that the al- leged removals of distilled spirits set forth in the various as- signments of breaches now answered are same removals recited in the said indictment; that all of the said removals of spirits complained of in plaintiff's petition might have been estab- lished, if said allegations be true, under the said indictments, either upon those counts based upon section 3296, or that count based upon section 3281 ; that all of the evidence which would be necessary to establish, and competent under the various assignments- of breaches in plaintiff 's petition, would also be competent under and would tend to establish the alle- gations of said indictments; that the various assignments of breaches in plaintiff's petition relate to the same subject-matter 598 The United States v. Choutea0. [Oct. Term, Opinion of the court. and are based upon the same transaction as the various allegations in said indictments contained, so far as tlaey relate to alleged offenses under sections 3296 and 3281 and 5440, and that at the time when the said indictments were presented to said grand jury, and at the time when the said indictments were . considered by said grand jury, all of the facts which would be competent to sustain the allegations of plaintiff's petition were known to and within the possession of the representative of the United States. To the answer of the defendants the United States demurred, but the demurrer was overruled, and they declining to plead further, judgment was entered thereon in favor of the defend- ants, and the case is brought here on writ of error. S. F. Phillips, Soliciior- General, for plaintifl' in error. ]N"o brief filed for defendant in error. Field, J. — As seen by the statement of the case, each breach of the condition of the bond in suit, of the class designated by even numbers, consists in the omission of the distiller to make the required entries in the book provided in section 3303. The petition alleges that by "means of said omission" the distiller was enabled to defraud, and did defraud, the United States of the tax imposed by law upon the spirits produced at his dis- tillery. The answer denies this allegation, and avers that whatever fraud was committed upon the United States was effected through other means. The demurrer admits that averment to be true, and the question is thus presented whether a party seeking damages for a specified breach of duty is entitled to judgment. in his favor, when admitting on the record that whatever damages he may have sustained resulted from other causes. The case is not brought for any tax alleged to be due to the United States which they would be entitled to recover, what- ever the cause of its non-payment. In such a case it would be of no consequence whether the cause assigned for the de- 1880.] The United States v. Chouteau. 599 Opinion of the court. fault of the party was the true one or not ; the obligation to the government would be the same. Here a specific omission of duty on the part of the distiller is alleged, for which it is sought to charge both him and his sureties on their bond. Their liability is only to the extent of the damage sustained. If no damage resulted to the United States from the omission stated, none can be obtained either against him or his sureties. The law does not affix any specific penalty which may be re- covered for the omission. If, therefore, the allegations of the petition were simply traversed, the government would be com- pelled to prove, not only the omission complained of, but that by means of it the tax on the spirits produced was lost, which is the damage alleged. It would not be sufficient to show that by other omissions of duty the government was thus defrauded, for that would be to change the entire ground of the action, the specific gravamen of the complaint. Now, the demurrer admits that the ground of complaint — the specific breach of duty stated — did not cause the damage charged; but that whatever damage was sustained by the United States was effected by other means. Therefore the action, so far as damages are claimed for the particular omis- sion of duty mentioned, must fail. It is true that the breaches of duty which are stated by the defendants in their answer as the means bj' which the United States were defrauded, are a series of stupendous frauds, for which the guilty parties deserve severe punishment; still thej' were none the less available as a defense to an action charging to other causes the damages which they produced. It is cer- tainly one way of defending against the charge of a wrongful act for which damages are sought, to show that, notwithstand- ing the wrong, committed, the damages resulted from other causes, however objectionable a pleading might be with aver- ments to that effect instead of a distinct traverse of the allega- tions of the complaint. If, for example, a party should charge another with inflicting upon his person a wound by which he lost an arm, it would be a good defense to show that the loss 600 The United States v. Chouteau. [Oct. Term, Opinion of the court. resulted from unskillful medical treatment or neglect,, and not from the wound inflicted. So here, it is enough for the sure- ties to show that the loss to the government was produced by other means than the particular breach of duty by their prin- cipal of which the government complains. It is of no conse- quence to them, so far as the present action is concerned, how many other sins of omissioq or commission he may have com- mitted, if they can show that the particular damage claimed was not the result of Ihe one charged. As to the breaches of duty in the assignments of the class designated by even numbers, we are of opinion that the com- promise with the government pleaded is a complete defense against a recovery of the penalty claimed. Each breach al- leged consists in the removal by the distiller of spirits, pro- duced at his distillery, to a place other than the distillery warehouse, without tirst paj'iug the tax imposed thereon. The penalty prescribed for this ofi'ense was intended as part pun- ishment for it, and may be enforced, equally as the additional fine and imprisonment, by criminal prosecution. It was not intended in any sense as a substitute for the tax required, or as an}' abatement of it when recovered. This is evident from the fact that it may be applied to those who have aided or abetted in the removal, whether the distiller or one havins; no interest in the spirits. So, too, the payment of the tax may be made after the removal, and yet the penalty not be dis- charged; it could still be imposed upon the ofl:ending party. It may be questioned whether the only mode for a recovery of the penalty is not by indictment; but, assuming that it may be recovered in a civil action, the compromise pleaded covers the penalties here claimed. Two indictments have been found against the distiller, one of which contains counts for the spe- cific offenses which constitute the whole ground and cause of the present action. Under the authority of an act of Con- gress, a compromise with the government was effected, by which a specific sum was paid by him, and received by the government, "in full satisfaction, compromise, and settlement 1880.] The United States v. Chouteau. 601 ' OpiDion of the court. of said indictments and prosecutions," which were accordingly dismissed and abandoned. That compromise necessarily cov- ered the causes or grounds of the prosecutions, and, conse- quently, released the party from liability for the offenses charged and any further punishment for them. The answer avers that the removals of distilled spirits set forth in the as- signment of breaches of the condition of the bond are the same removals recited in the indictments, and that all the evidence necessary to establish' the breaches assigned would have been necessary and competent under the indictments. The two proceedings, the civil action and the criminal prose- cution, so far as they relate to offenses under section 3296, are based upon the same transactions. The question, therefore, is presented whether sureties on a distiller's bond shall be subjected to the penalty attached to the connnission of an offense, when the principal has effected a full and complete compromise with the government, under the sanction of an act of Congress, of prosecutions based upon the same offeiise and designed to secure the same penalty. Admitting that the penalty may be recovered in a civil ac- tion, as well as by a criminal prosecution, it is still as a pun- ishment for the infraction of the law. The term penalty in- volves the idea of punishment, and its character is not changed by the mode in which it is inflicted, whether by a civil action or a criminal prosecution. The compromise pleaded must op- erate for the protection of the distiller against subsequent pro- ceedings as fully as a former conviction or acquittal. He has been punished in the amount paid upon the settlement for the offense with which he was charged, and that should end the present action, according to the principle on which a former acquittal or conviction may be invoked to protect against a second punishment for the same offense. To hold otherwise would be to sacrifice a great principle to the mere form of procedure, and to render settlements with the government de- lusive and useless. While there has been no conviction or judgment in the 602 The United States v. Ulrici. [Oct. Term, Opinion of the court, criminal proceedings againstthe distiller here, the compromise must on principle have the same ett'ect. The government, through its appropriate officers, has indicated, under the au- thority of an act of Congress, the punishment with which it will be satistied. The otfending .party has responded to the indication and satistied the government. It -would, therefore, be at variance with right and justice to exact in a new form of action the same penalty ; for, as it was justly said by this court in ex-parte Lange, speaking through Mr. Justice Miller: " If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense ; and though there have been nice ques- tions in the application of this rule to cases in which the act charged was such as to come within the detinition of more than one statutory oft'euse, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party where a second punishment is proposed in the same court, on the same facts, for the same statutory offense. The principle finds expression in more than one form in the maxims of the com- mon law." (18 Wall., 168.) Judgment affirmed. Afftrmed. The United States v. Rudolph W. Ulrici, Adolphus Boeck- BLER, Charles Hoppe, Conrad Seibel, and John H. Rolt- MANN. Error to the Circuit Court of the United States for the Eastern District of Missouri. This case involves substantially the same questions consid- ered in United States v. Chouteau, ante, 593. Here the prin- cipal on the bond in suit plead guilty to the indictments found against him, and was fined one thousand dollars and impris- 1880.] The United States v. Ulrici. 603 Opinion of the court. oned for one day. The punishment inflicted was for ofl'enses which are set forth in the petition in this action as breaches of the condition of the bond. This difference in the two cases does not affect the. principle upon which the first was decided. Upon its authority the judgment is aflBrmed. Affirmed. INDEX. ADMIRALTY. I. Chabtek-pabty. 1. On the ppecial facts of this case, the court deckles that the Uiiilcd States are not liable for the hire of a certain vessel used in tlie trans- portation of troops. White v. United States, .S27. II. Collision. 2. The inrisdiction of the United States courts, as courts of admi- ralty, over suits in personam growing- out of collisions, is not exclu- sive of the State courts. Tlie common law has always afforded a remedy for sucli cases. Schoonmalcer v. Davidson, 46. > 3. A vessel at anchor in a roadstead, on ttie eve of a storm, where vessels were constantly entering, was held in fault, for not liaving an anchor-watch, in a collision witii a vessel entering, when it api'reaj'cd. that such neglect contributed to the collision. The Clara, 180. 4. A steamer held in fault for a collision with a schooner, where the vessels were seen for a long distance apart sailing on intersecting courses, and the sclioouer did not change her coui'se. The Benefactor, 206. 5. It was tlie steamer's duty to keep out of the way, and she was guilty of negligence in allowing heriself to get into such dangerous proximity with the schooner that a slight change of course would bi'ing on a collision. Id. 6. Since the act at 1875 (18 Stats., H15) the findings of questions of fact by the lower court in admiralty have the same effect as the verdict of a iur3', and this court can review questions of law only, and not such findings of fact. Id. III. Weight Givkn to Decisions of Inpebiob Couets of. IV. Sec Commerce. Courts of the United l^taies. AMENDMENTS. I. When allowed. Section 954 of the Revised Statutes authorizes the allowance of amendments during the trial. Bamberger \. Terry, 5S1. II. See Jury. ASSIGNMENT. See Choses in Action, Claims against Government. (605) 606 Index. BANKKUFJTCY. I. Weit op Ebkob by Bankbupt. 1. A bankrupt maj' pi-osocnte in his own name a m rit of error to a jndijment rendered against liim after his adjiKlicalioji in bankrnptcy. Hill V. Harding, 214. I[. Knowledge of Insolvency of Bankbupt by Pbbfeeebd Cbeditob. 2. On tlie qnestion wliather tlie plaintiff in a indgjnent on whicli goods were taken in exeontion knew of tlie defendant's insolvency and of tlie intent to evade the bankrnpt law, the knowledge of plain- tiff's attorney is the knowledge of plaintiff. Rogers v. Palmer, 242. 3. Where the debtor was son of the plaintiff and actively contrib- nted to. having judgment rendered before it could have been done without such aid, this was procuring his goods to be taken on execu- tion within the meaning of the thiity-flfth section of the banki-upt law as modified by the act of 1874. Id. III. Sole Right of Assignee to Attack Feaudulent Pbefee- ENCE. A. Where a debtor has gone into bankruptcy and an assignee has ..been ajipoiuted, a creditor cannot attack in his ovyn name a convey- :,ance from the debtor to his wife on the ground that It is fraudulent , as to creditoi's, the right to bring such suit being solely in the assignee for the benefit of the creditors. Trimble v. Woodhead, 582. 5. Nor can the fact that the assignee lias neglected to bring the .suit till barred by the two years' statute of limitations give a creditor such a right. Id. y^J'^-^^'^/^jLA, Cy^^i^A/^^t^d-'e^.t^ BRIBERY. A payment made to a provost-marshal lo obtain a release of some cotton from seizure by the military authority, (the money so paid having afterwards been seized by the United States,) held, on the iacts, to be a case of bribery, and not of extortion, wliich could not be recovered back. Clark v. United States, 337. CALIFORNIA. See Land Grants. CHARTER-PARTY. See Admiralty. CHOSES IN ACTION. I. Right to Assign. Graham v. Railroad Company. 70. II. What Passes by Assignment. III. See Claims against Government. Index. 607 CLAIMS AGAINST GOV^EKN-MENT. 1. Section 951 of the Revised Statutes 1ms no application where -a^ cl;iira Imd been allowed by the. proper accounting officer of tlie Treas- ury, and where the only question was as to which of two debts due to tlie government the claim should be applied as a credit. United States V. Hough, 60. 2. The provision in the Court of Claims act of ilarch 3, 1S63. au- thorizing that court, witliout the intervention of a Jury, to hear and determine claims against the government, and also any set-off, coun- ter-claim, claim for damages, or other demand assei-ted by tlie govern- ment against tlie claimant, does not violate the seventh amendment of the National Constitution. McElrath-v. United States, 252. 3. A claimant received from the govenunent the amount ascertained by the proper aceomiling otficers to be due him, protesting at the time that he was entitled to a larger sum, and announcing his purpose not to be bound'by sucli settlement of his accounts. He tlien sued the government for the additional amount claimed by iiim : Held, That the government was entitled to go behind the settlement of its account- ing officei's, and reclaim luiy sum which had been improperly allowed the claimant in such settlement. Td. 4. Section 3477 of tlie Revised Statutes of the United States does not forbid the transfer of a claim against the government on a mail contract to trustees in a general deed of assignment made by the claimant to secure his creditors. Goodman v. JSfiblack, 448. 5. Such trustees are necessary parties to a bill filed bj' one of the creditors to subject to a iudgment the proceeds of the claim so con- veyed, and no decree can be made till they are brought before the coiu't, either by personal service, or by publication under section 738 of the Revised Statutes of the United States. Id. COLLISION. See Admiralty. COMMERCE. See Constitutional Law. < COMMON CARRIERS. 1. A carrier of passengers, for hire, is bound to observe the utmost caution characteristic of very careful, prudent men. Pennsylvania Co. V. Boy, 166. 2. He is I'esponsible for injuries received by passengers, in the course of their transportation, which might have been avoided or guai-ded against by tlio exercise, upon his part, of extraordinary vigilance, aided by the highest skill. Id. 3. Such caution and diligence extend to all the appliances and means used by the carrier in the transportation of the passenger. Id. 4. He must provide cars or vehicles adequate, that is, sufficiently 608 Index. secure, as to strength and other requisites, for the safe conveyance of passengers; and for the sliglitest negligence or fault in that regard, from which injury results to the passenger, the carrier is liable in damages. Id. 5. A passenger purchased from a railroad company a ticket over its line, and, at the same time, from the Pullman Palace Car Companj' a ticket entitling him to a bei-th in one of its sleeping-cars, constituting a part of the train of the railroad company. In the coui'se of trans- portation he was injured by the falling of a berth in the sleeping-car in which he was, at tlie time, riding : Held, That for the purposes of the contract with the railroad company for transportation, and in view of its obligation to use only cars tliat were adequate for safe con- veyance, the sleeping-car company, Us conductor, and porter were, in law, the servants and employes of the railroad company. Their neg- ligence, or the negligence of either of them, as to any matters involv- ing the safety or security of passengers, was the negligence of the railroad company. Id. 6. In such case, the passenger injured being entitled only to com- pensatory damages, evidence as to his property, or as to tlie number and ages of his children. Is iri-elevant. Id. COMMOlSr COUNTS. See Corporation Securities, Negotiable Notes. CONSTITUTIONAL LAW. CoMMBECiAii Clause. 1 . A statute of Texas levying on any one "pursuing tlie following- named occupations an annual tax as follows : For selling spirituous, vinous, malt, and other intoxicating liquors, a certain amount; pro- vided that this section shall not be so construed as to include any wines or beer manufactured in this State, or when sold by druggists for me- dicinal purposes," is inoperative so far as it makes a discrimination against wines and beer imported from other States, when sold sepa- rately from other liquors, but is valid when they are sold together with other liquors. Tiernan v. Rinker, 81. 2. The case of Welton v. Missouri, 96 U. S., 275, distinguisMed from the case at the bar. Id. 'i. Congress, under its power to regulate commerce, has power to regulate tlie liability of the owners of vessels navigating the high seas, but engaged only in the transportation of goods and passengers be- tween ports and places in the same State; and sections 4283^289 of the Revised Statutes of the United States, known as the Limited Lia- bility Acts, are applicable to such cases. Lord v. Steamship Company, 456. 4. In the absence of legislation by Congress, the States can constitu- tionally pass acts to improve the navigation of their rivers and harbors, without conflicting with the x>ower of Congress to regulate commerce. Mobile County v. Kimball, 462. Index. 609 5.^ Ill general, whether the States can legislate on commercial sub- jects in the absence of legislation by Congress, or whether the national power is exclusive, ilepends upon the nature of the subject to be reg- ulated ; for instance, on the distinction whether the legislation is on connnerce itself, or on mere aids to commerce. Id. 6. See below, under State Pilot Laws. II. Federal Question — what is. 7. A judgment of the Supreme Court of the State of Missouri deter- mining at what time a lottery privilege granted by a State statute expired by its own limitation, raises and decides no Federal question, and is not reviewable b3'^ this court. France v. l^he State of Missouri, 5. 8. Upon the authority of Cohens v. Virginia, 6 Wheat., 375 ; Os- borne V. Bank of United States, 9 Wheat., 816 ; Mayor v. Coopei-, 6 Wall., 250; Gold-washing and Water Co. v. Keyes, 96 U. S., 201 ; and Davis V. Tennessee, 100 U. S., 264, held to be settled law : 1. That while the eleventh amendment of the Jfational Con- stitution excludes the judicial power of tlie United States from suits, ill law or equity, commenced or prosecuted against one of the United States bj' citizens of another State, such power is ex- tended by the Constitution to suits commenced or prosecuted by a State against an individual, in vvliioh the latter demands noth- ing from the former, but only seeks the protection of the Consti- tution and laws of the United States against the claim or demand of the State; 2. That a case in law or equity consists of the right of one party as well as of the otiier, and may properly be said to arise under the Constitution or a law of the United States whenever its cor- rect decision depends on the construction of either; 3. That cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right, or privilege, or claim, or protection, or defence of the party, in whole or in part, by whom they are asserted ; 4. That, except in the cases of which this court is given, by the Constitution, original jurisdiction, the judicial power of the United States is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct ; and lastly, 5. That it is not sufficient to exclude the judicial power of the United States from a paiticular case that it involves questions which do not at all depend on tiie Constitution or laws of the United States ; but wht;n u question to which t'he judicial power (if the Union is extended by the Constitution forms an ingredient of the original cause, it is within the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. Railroad Company v. Mississippi, 49. 9. Tliese propositions, now too firmly established to admit of or to 610 Index. i-eqnire further discussion, embrace thie present case, and show tliut the inferior State court erred, as well in not accepting the petition and bond for the removal of the suit to tlie Circuit Court of the United States, as in thereafter proceeding to hear the cause. It was entirely witliont jurisdiction to proceed after the presentation of tlie petition and bond for removal. Id. III. Obligation of Contracts. 10. A law of Louisiana abolishing the writ of mandamus against tlie officers of the city of I^ew Orleans to enforce judgments against the city, and requiring creditors to proceed by ordinary action at law and registei- the judgment so obtained in the office of the city controller, which judgments should be paid in the order of their registry out of a certain fund, is not (uiconstitntinnal, as impairing the obligation of contracts, in requiring such a registry. Louisiana v. New Orleans, 120. 11.. As far as the record in this case shows, such a law gives an equally-good and expeditious remedy as mandamus, and does not impair the obligation of contracts' by delaying reCovecy. Id. 12. Aliter if shown to delay recovery. Id. 13. The statute of Wisconsin of Marchl6,1857, "to provide for ageo- logical, &c., survey of the State," amended April 2, 1860, appointing certain parties commissioners at a certain compensation, in pursuance of which the governor entered into a formal contract with tlie said parties, did not merely create an office which might be abolished at the legislative will, but was a contract irrepealable without tlie assent of all the contracting parties. Hall v. Wisconsin, \%'i. 14. Not all public offices can be abolished at the pleasure of the Legis- lature ; but when the Legislature^mafces a contract witli a public officer, ■as in case of a stipulated salary for a limited period, this is a contract witliiii tlie purview of the constitutional provision which prohibits any State statute impairing its obligation. Id. 15. The stay law of the State of Virginia, passed April 30, 1861, to prevent foreclosure and execution sales till the ordinance should cense, is unconstitutional as impairing the obligation of contracls, and also as being one of a series of acts passed hi furtherance of secession. Daniels v. Teamey, 285. 16. The bond which that act required the debtor to give to suspend the sale is invalid, because Tequired by an unconstitutional law. Id. 17. Where the record shows that there was drawn in question the validity of such a bond, and that the decision of the State court was in favor of its validity, this court has jurisdiction to review such decision. Id. 18. The State of Virginia, by the act of MarchSO, 1871, Issued certain bonds payable to order or bearer. The coupons attached were paya- ble to bearer, and were receivable, as was shown on their face, for all the debts, taxes, and demands due the State. A subsequent act of March 25, 1873, amended and re-enacted in 1876, imposed a tax on Index. 611 the bonds, which wiis dh-ected to be deihiefced from tlie coupons when pr-esented in payment of taxes : Held — 1. That disthiot contracts arose on the part of the State witli the holder of tlic bonds and the holder of the coupons. 2. That the act iniposhig the tax and reqnirino; it to be deducted from the coupon, so far as it applies to coupons separated from the bonds and held by different owners, impairs tlie obligation of the contract of the State with both the bondholder and the coupon- holder, and is void. Hariman v. Greenhow, 549. IV. State Pilot Laws. 19. The statute of New York Imposing compulsatory pilotage is valid as a police regulation, or even as a regulation of commerce, in tiie ab- sence of legislation by Congress on the subject. Wilson v. McNamee, .571. 20. As a vessel at sea carries with it the local legal rights and juris- diction, a tender of pilotage, under a State statute, made at sea from a pilot boat, is valid. Id. V. See Claims against Government, Courts of the United States. CONTEMPT. Original proceedings for, not reviewable. Hayes v. Fischer, 47. CONTRACTS. I. Construction op. 1. A contract must be construed in the light of surrounding circum-- 'Stances, as the parties understood it at the time it was made. Rail- road Co. V. Clapper, 491. •2. Contracts created by or entered into under the authority of stat- utes, are to be interpreted according to the language used in each par- ticular case to express the obligation assumed. Florida Railroad Cases, 504. II. Obligation of. See Constitutional Laiv. CONVERSION. 1. Certain bonds loaned to the officers of an insurance company- for the purpose of exhibition to official examiners as part of the company's assets, and returned immediately after such examination, cannot be recovered of the said offioej's under a bill alleging a conversion of them as the bonds of tlie company, filed bj' the assignee in banki-uptcy of the company. By such an act they never became the bonds of tlie company. .Walker v. Reiiter, 443. 2. The wrong of such a transaction by the said officers does not estop them from proving, as against the other party to the wrong, the char- acter of their possession. Id. 612 Index. COKPOEATIONS. I. Impeaching Books of Account of. 1. On the books of the corporation the account of the plahititr, its pi'esiJent, stood balanced. The defendants cannot be allowed to open that account and claim parts of it as a set-ofT, without proof of fraud or mistake. Andrews v. Congar, 29. II. Stockholders. 2. The giving of a bond to pay deferred installments due for the stock of a corporation, its deliverj- to an agent of the corporation, and the entry of the obligor's name as a stockholder on the books of the corporation, constitute the obligor a subscriber to tlie stock quoad the creditors of the corporation, and liable to pay the amount of the bond, although no certificate of stock had been issued to him. Haw- ley V. Upton, 293. III. See Fraudulent Conveyances. CORPORATION" SECURI'i'IES. 1. Bonds and coupons issued under the Alabama statute authorizing counties to subscribe to the stock of I'ailroads, being signed by tiie judge of probate of the county as the presiding officer of tlie Commissioners' Court, are themselves warrants on the treasurer, and lience need not be audited, as required by section 826 of the Alabama code, before bringing suit on them. Pickens v. Daniel, 39. 2. As in tlie United States court a mandamus to compel the levy of a tax to pay a debt does not lie till the debt is reduced to judgment, such a suit, being part of tlie necessary machinery for enforcing the claim, will not be ousted simply because State courts afford a remedy in a different way. Id. 3. The fact that the bonds issued were not of the same denomina- tion as those specified in the proposition of the railroad company for subscription (required by the Alabama statute), does not avoid them- Id. 4. Bonds issufed under authority of a popular election are not avoid- ed by the fact that the representations made in speeches during tlie canvass by interested parties turn out to bo untrue. 5. Although the bonds of a city may be void for non-compliance with a requisite prescribed by a State statute, yet where the city ante- dated those bonds for the purpose of making them appear to have been issued before the passage of the statute, and then sold them through a broker, the purchaser may iniintain an action for money liad and received, against the city, to recover back the money so paid for tlie .bonds, with legal interest. City of Louisiana \. Wood, WO. 6. The Missouri statute of March 28s 1872, '• to provide for the reg- istration of bonds issued by counties, cities, i&c," does not repeal tin? former acts authorizing the borrowing of money for the purpose of paying oil' old bonded indebtedness. Id. Index. 613 7. The act of the Mississippi Legislature of March 10, 1852, and that of Iirovembei-23, 1859, revived by tlie act of February 20, 1867, autlior- izinn; counties to subscribe to certain railroads, construed not to au- thorize the borrovvin"' of raonej' or the 1-isuu of bonds to pay such subscription. Wells v. Supervisors, 196. 8. The above acts construed to contemplate the raising of funds by taxation alone, and bonds issued for tVie purpose of payiiio- the sub- scription to the railroad stock held void as unauthorized and ultra vires. Id. 9. The Constitution of Illinois forbids municipal corporations from incurring an hidebtedness exceeding 5 per cent, of its assessed valu- ation, to be ascertained by the last assessment for State and county taxes previous to incurring the indebtedness. Where bonds were issued reciting that they were issued under the State statute of April, 15, 1873, (authorizing cities and towns to construct and maintain water-works,) but containing no recital that they were issued in pur- suance of the State Constitution, or that the circumstances authoriz- ing their issue had existed, tVie city is not estopped, even as against a hona-fide holder, from proving that the bonds brought her indebt- edness above the constitutional limit, and were unauthorized. Bu- chanan y. Litchfield, 216. 10. The best evidence of this is the State and county assessment. Id. 11. The act of Missouri of January 4, 1860, authoi'iziug the inhabit- ants of a certain " strip of co\uitry " to subscribe to the stock of a rail- road passing through it, and to levy a tax to pay the subscription, does not authorize the issuing of bonds to pay such subscription by so an- ticipating the tax. Ogden v. Daviess County, 586. 12. Neither the act of March 3, 1868, amended March 24, 1870, author- izing " municipal townships" to pay former subscriptions to raih-oad stock in bonds, nor the act of March 24, 1868, authorizing " counties, cities, and towns" to do tlie same, authorizes the issue of the above- mentioned bonds, as these acts apply only to such public corporations as entireties, and not to a " strip of country " containing the aggrega- tion of many parts of such townships, &c. Id. 13. The issue of such bonds being wholly unauthorized, and ultra vires, they are void even in the liands of a bona-fide holder. Id. 14. See Constitutional Law. 15. Pi'operty held for public uses — such as public buildings, streets, squares, parks, promenades, wharves, landing places, fire-engines, hose and hose carriages, engine-houses, engineering instruments, and gener- ally everything held for governmental purposes — cannot be subjected to tile payment of the debts of the city. Its public character forbids such an appropriation. Upon the repeal of the charter of the city, such property passed under the immediate control of the State, the power once delegated to the city In that behalf having been with- drawn. Memphis Case, 353. 614 Index. 16. The private property of inclivkUials within the limits of the ter- ritory of the city cannot be subjected to the payment of the debts of the city, except tln'ongh taxation. Tlie doctrine of some of tlie St.ates, that sucli propei-ty can be reached directly on execntion against the mu- nicipalitj'', has not been generally accepted. Id. 17. The power of taxation is legislative, and cannot be exercised otherwise than nnder the authority of the Legislature. Id. IS. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to the special requirement of contracts entered into under the authority of law, and such as were levied nnder judicial direction for tlie payment of judgments recover- ed against the city, cannot be collected through the instrnmentality of a conrt of chancery at the instance of the creditors of tlie city. Such taxes can only be collected under anthoritj' from the Legislatnre. If no such authority exists, the i-emedy is by appeal to the Legislature, which alone can grant relief. Wliether taxes levied in obedience to contract obligations, or under judicial direction, can be collected throngh a receiver appointed \>j a court of chancery, if there be no pnblic officer charged with antliority from the Legislature to perform that dnty, is not decided, as the case does not require it. Id. 19. The receiver and back-tax collector appointed under the author- ity of the act of March 13, 1879, isa pnblic ofBcer, clothed with authority from the Legislature for the collection of the taxes levied before the repeal of the charter. The funds collected by him from taxes levied under judicial direction cannot be appropriated to any other uses than those foi- wliich tliej' were raised. He, as well as any other agent of the State charged with the duty of their collection, can be comjielled by appropriate judicial orders to proceed with the collection of such taxes by sale of property or by suit, or in any other way, authorized b^r law, and to apply the proceeds upon the judgments. Id. 20. The bills in this case cannot be amended so as to obtain relief against the receiver and back-tax collector, without making an en- tirely new suit. They were uot framed with a view to any such pur- pose. Id. 21. The subscription of the city of Louisiana to certain I'ailroad stock held unautiiorized by any legislative act and ultra vires, and the bonds issued in payment of the same held void. Allen v. Loiiis- iana, 41.9. 22. The iprinciples annoi*nced in Aspinwall v. Commissioners, 22 How., 364, reaffirmed. Wadsworth v. Eau Claire County, 427. 23. A corporation wh,ose Innds are embezzled and invested by its president in stock of another corporation, becomes by such ti-ansaction th<' equitable owner of such stock. Florida Railroad Cases, 504. 24. As sucli equitable stockholder, and because of having entered into au arrangement to share in the proceeds of sale of State bonds given by the State to the corporation in wliich it so held such stock, in exchange for the bonds of such corporation, it is estopped from setting Index. 615 np title to such corpomtioii against the hona-Jide holders of such State bonds. Id. 25. The State of Florida issues bonds whieh it gives to a corporation in exchange foi- tiie bonds of the corpoi'ation, intending to lend its credit to the corporation. These State bonds contain an indorsement that the bonds of the corporation are deposited with the State as fur- ther security to tlie holders of the State bonds. Under these circum- stances, although the State bonds are unconstitutional, the corpora- tion is estopped from setting np their invalidity against bona-fide holders. Id. 2B. Although the ahove-mentloned State bonds are unconstitutional, 3'et the act of January 28, 1870, of the Florida Legislature, while uncon- stitutional in regard to the issue of State bonds, creates a valid statu- tory lien in favor of the holdeis of sucli State bonds against the Jack- sonville, Pensacola and Mobile Companj', which will be enforced against the company for their benefit. Id. 27. Although the above-mentioned State bonds are void as to the State, yet, being valid as to the corporation issuuig them, and the oorpoi-ation being in legal effect their indorsei-, the party holding them is not limited in his recovery to the amount actually paid for them, but may recover their face value. Id. COSTS. Where a writ of mandamus is issited against one of the Cabinet ofBeers to compel performance of a duty which he refused under a hona-fide mistake of law, with no intentional wrong, costs must never- theless go against him and in favor of the successful party. McBride V. Schurz, 400. COURTS OF THE UJNriTED STATES. I. " Court of Claims. See Claims against Government. 11. Supreme Court. 1. Since the act of February 25, 1879, (20 Stats., 321,) the value of the matter iji dispute, as well in cases pending as in cases subse- queutljf arising, nuist exceed 82,500 in order to give this court juris- diction to review judgments or decrees of the Supreme Court of the District of Columbia. Dennison v. Alexander, 351. 2. An order of the court of last resort of Virginia, refusing to grant a supersedeas to a jiidgment of an inferior court, which under the prac- tice in that State is a final determination of the question of the right of review, is such a judgment as to authorize review by this court. Williams v. Bruffey, 406. 3. Where this court has once acquired jurisdiction over cases com-, ing up from the courts of last resort of the different States, and those 616 Index. courts decline to obey its mandates, it may, in tliu enforcement of its judgnieiits, act directly upon tlie interior State courts. Id. 4. Wliere a decree in admiralty allowed to salvors a certain sum, and then proceeded to apportion that sum among the different salvors, the gross sura allowed is, as to the owners of the property saved, the test of the amount required to give this court jurisdiction, and not the separate amounts apportioned off to the diflei-eiit salvors. Sinclair V. Cooper, 460. 5. In a suit for partition of a tract of land, the amount required to give this court jurisdiction is determined by the amount claimed by the complainant, and not by the total value of the tract to be divided. M''Carthy \. Provost, 497. 6. The appellate jurisdiction of this court Is not altered by the act of 1875 (18 Stats., 470) giving the Circuit Courts jurisdiction of civil suits arising under the Constitution and laws of the United States when the matter in dispute exceeds $500. Whitsitt v. Railroad Cos., 497. 7. Semble that cases tried in tlie (Circuit Courts before a referee, in States where such a practice exists, cannot be reviewed hei'e. Boogher v. Insurance Co., 564. 8. See Admiralty, Constitutional Law, Jurisdiction, State Courts. CUSTOMS AND DUTIES. I. Mixed Materials. 1. Goods manufactured of silk and cotton, of which silk is the com- ponent material of chief value, are liable to the ad-valorem duty of 50 per cent, imposed by section 8 of the act of June 30, 1864, "on all manufactures of silk, or of which silk is the component part of chief value, not otherwise provided for, &c.," and not to the duties oE 35 per cent, imposed by section 22 of the act of March 2, 1861, and section 13 of the act of July 14, 1862, on "manufactures composed of mixed materials in part of cotton, silk, wool or vvorsted, or flax," the words "mixed materials " being a mere descriptive term to designate a class, and not a name for goods. Solomon v* Arthur, 139. II. Abgols. 2. The tariff act of August o, 1870, exempts from duty only ''crude ar-gols," but it being proved as a fact that there was a difference between "crude argols," and "argols," an instruction calling tlie attention of tlie jury to that difference is correct. Secknagel v. Miirphy, 176. DECREE. See Judgments and Decrees. DISTRICT OF COLUMBIA. I. Mandamus issued by Courts of. The Supreme Court of the District of Columbia is autliorized to issue the writ of mandamus as an original process in cases where, by Index. 617 the principles of tlie common law, the party is eiitUlecl to It. McBride V. Schurz, 299. II. Sei! Courts of the United States. EQUITY. I. Ciinnot relieve from conclitioiis precedent. Giddings v. Insurance Co.. 34. II. Specific Performance. 1. A snit to compel the delivery of certain bonds of the county agreed to be given to the complainants I>y tlie board of harbor com- missioners, is in the natnre of a .bill for specific performance, and within tile jurisdiction of a court of equity. Mobile Co. v. Kimball, 462. III. Practice and Pleading in. 2. In a contest between two boards of trustees for the manage- ment of certain church property, it was improper to raaiio a decree for routs and profits personally against tlie members of the defeated board, where no claim therefor was made in the bill of complaint, and under the special circumstances of the case. Bouldin v. Alex- ander, 190. J V. See Fraxid; Limitations, Statute of. EKKOR AND APPEAL. 1. Decrees in cliancery causes are reviewable only by proces.s*of appeal, and not by writ of error. Hai/es v. Fischer, 47. 2. Original proceedings for contempt are not reviewable. Id. 3. A charge given by the court, to which no exceptions are shown to have been taken, cannot be reviewed here. United States v. Houc/h, 60. 4. Wliere several distinct propositions are presented in an instruc- tion, and any one of them is not law, it is not error to reject the whole. Id. 5. The admission of evidence improper, but not injurious to plaintiff In error, Is not error. Id.; Eelfe v. Wilson, 264. ESTOPPEL. 1. A party who reaps the benefit obtained from giving a bond, is estopped from attacking Its validity when sued on it. Daniels v. Tearney, 285; George v. Tate, 402. 2. See Constitutional Law, Conversion, Estoppel, Infants. EVIDENCE. I. Boundary. 1. in questions of private boundary, declarations of particular facts, as distinguished from reputation, made by deceased persons are not admissible, unless made by persons sliown to have had knowledge of 618 Index. that whereof they spoke, oi- pei'sons on the land pr in possession of it when the declarations were made. Hunnicutt v. Peyton, 87. 2. To be evidence, they must have, been made when the declarant was pohiting out or raarkhig tlie bonndaries, or discharging some duties relating thereto. Id. II. Copies op Xbeasuby Kecobds. 3. The account of a delinquent revenue officer, or other person ac- countable for public money, as finally adjusted by the proper officers of the Treasury Department, to be admissible as evidence under sec- tion 886 of the Revised Statutes, sliould be certilied and authenticated to be a transcript from the boolcs and proceedings of the department. It is not sufficient that tlie certificate states the account or accounts off'ered as evidence to be copies of originals on tile. The latter is the form of certilioate used In reference to mere copies of bonils, con- tracts, or other papers connected with the final adjustment, and which, duly certified and authenticated, have the same effect as the originals would have if produced in court. United States v. Morris, 431. III. Experts. 4. In a controversy as to what constituted an approach to a railroad bridge, where the land adjoining the river bankwas lowaud often over- flowed, and tlie track was, in consequence, elevated anil ripnippeil, and as to whether such ripraps and dykes constituted part of the ap- proach, tlie opinions of expert engineers are admissible and entitled to due weight. Railroad Company v. Clopper, 491. IV. * Interest in Suit. 0. The words "parties" in the proviso to section 858 of the lie- vised Stiitutes prohibiting parties from testifying as to transactions or stateipeuts made by certain classes named in the said section, refers only to tho.se who are parties on tlie record, and not to those who, though not parties, have an interest in the result of the suit. Potter V. Bank, 124. V. One Transaction Shown by Series of Letters. 6. Where all but one of a series of letters relating to one transaction were admitted by the plaintiff in error without objection, the court acted properly in ovei-rnling an objection to that one letter and ad- mitting it to explain the others. Id. VI. Relevancy. 7. A deed professing to convey the property in controversy by the parties against whom the attachment lan before the writ of attachment was issued, is relevant to an issue as to the ownership of the propertj^ at the date of the levy of the \\v\t, although its acknowledgment may be defective. Bank v. Winslow, 28. Nil. When State laws of, applicable to Federal courts. Potter v. Bank, 124. VIII. See Corporations ; Exceptions, Bill of; Negotiable Instruments. Partnership, Patents. Index. 619 EXCEPTIONS, BILL OF. 1. A I'ule of court prescribed that "no bill of exceptions would be signed unless presented to the judge within five daj's after the close of the trial, unless f urtlier time be allowed b)- the court." A bill of excep- tions was presented eleven days after the close of tlie trial and signed by the judge, who at the same time entered an order extending till then the time for tiling it. It was in tlie power of the judge lo malie such an ordei', and the bill of exceptions was filed in time. Hunni- cutt V. Peyton, S7. •2. Suing out a writ of error before a bill of exceptions was signed, is not a waiver of such unsigned bill of exceptions. Id. 3. Where additional time after the close of a trial is granted by the court for filing a bill of exceptions, it is not necessary tliat the bill purport to have been signed nunc pro tunc as of tlie day of the trial. Id. 4. Where a bill of exceptions does not purport to give all the evi- dence adduced before the jurj', but stated tliat there was evidence tending to show the facts set forth in the charge, tliis court will pre- sume that there was such evidence offered to the jury. Potter \ . J^ank, 124. .T. An exception to the admission of irrelevant testimony is can- celled when the court, before the final submission of tlie case to tlie jnry, distinctly instructs them to disregard such evidence. The pre- sumption should be, so far as this court.is concerned, that tlie jury based their verdict upon legal evidence only. Pennsylvania Co? v. Roy, 166. 6. Where there are exceptions to a series of findings of a referee as a whole, and any one of these findings is correct, tlie exceptions iniist be overruled. Boogher v. Insurance Co., 564. 7. See Error and Appeal. FEDERAL QUESTION. See Constitutional Ldvi^ FRAUD. I. Particularity Required in Alleging. 1. A bill in chancery to set aside a judgment or decree of a court of competent jurisdiction, on the ground of fraud, must set out distinctly the particulars of the fraud, the names of the parties who were engaged in it, and the manner in which the court or the party injured was misled or imposed on. United States v. Atherton, 267. . 2. So, aUo, a bill to set aside or annul a patent of the United States for public lands, or'to correct such a patent on account of fraud or mistake, must show, by like averments, the particulars of the fraud and the character of the mistake, and how it occurred. Id. ir. How Available in Common-law Action. 3. The only fraud that can be set up as a defense to a bond iii a cum- 620 Index. moii-law action, is fraud toiioliiiig its execution, not fraud in its pvo- cnrement. O&erge v. Tate, 402. S^Xjt ^^.-^<,**0 FRAUDULENT CONVEYANCES. 1. A corporation, when but little in debt, conveys certnin realty to a party, who conve}-s it to the president and two directors of the cor- poration. Three years afterwards subsequent creditors .obtain judo^- ment against the corporation, and then attack tlie above convp.yances on the ground of fraud. Tlie corporation itself never attacked tlie transaction, but, on the contrary, confirmed it. Such subsequent cred- itors cannot question the transaction. Oraham v. Railroad Co., 68. 2. Wliere a debtor does not attack a transaction alleged to be fraud-' ulent as to him. liis subsequent creditors oi' purchasers have not suffi- cient privity to attack it. Tlie mere naked right to sue, unaccom- panied by a conveyance of the property itself, is not assignable. Id. 3. The above principles apply as well to corpoi-ation debtors as to individual debtors. Id. GOVERNMENT DEBTORS. Section 3624 of the Revised Statutes of the United States applies ■ only to parties who have moneys of the United States in tlieir liands — not to those who are merely debtors of the government for stamps. Failure to pay such a debt before suit does not, thGi-efore,.work a for- feiture of the discounts or commissions allowed by law in the pur- chase of stamps. United States v. Ooldhack, 478. GUARANTY. See Negotiable Instruments. HOMESTEAD, r. Forced Sale op. Under the Texas Constitution forbidding the forced sale of the liomstead for debt, where the homestead had been mortgaged, an action of ejectment in the United States court by the party holding the legal title under the mortgage, brought to gain possession, Is as much within the prohibition as a forced sale under judicial pro- cess. Lanahan v. Sears, 297. INCOME TAX.' See Taxation. INFANTS. 1. A written representation by an infant, at the time of entering into the contract, that she is of age, does not operate as an estoppel to prevent her .from disaffirming the contract. Sims Y.Everhardt, 12. 2. Semble that mere inertness or silence by an infant, continued for a period less than that prescribed by the statute of limitations, unless accompanied by afBrmative acts manifesting an intention to as- sent to the conveyance, will not bar the infant's right to avoid it. Id. Index. 621 INSTRUCTIONS TO JURY. [. Assumptions of Fact in. An instruction assuming tliat .a noto was depositpcl as collafeial vlieii the evidunci! dirt not sustain sucli iissnmptioii, was immaterial, anil was pi-operly refused. Bank\. White, 117. II. See Exceptions, Bill of. INSURANCE. 1. The form of policy of an insurance company contains a provis- ion that the policy "shall not take effect and become binding on the company till the premhim be actually paid, during the life-time of the person whose life is assured." The plaintiti' applied to the com- pany for an insurance. The company, after consideration, made out the policy and sent it to their local agents three weeks after the date of the plaintiflf's application. One week after liis application the plaintiff was taken sick, and a month after the application lie died. The policy was not called for during his life, hut two months after his death his personal representatives tendered tlie premium to tlie local agents, and on their refusal to deliver tlie policy bronglit suit: Held— 1. That the contract of insurance had not been coiisnmmated, the minds of the contracting parties not having met, and ttie pay- ment of the premium btiing a condition precedent. 2. That his personal representatives could not act for him to complete such a contract by a tender, &c. *3. That equity could give no relief, tlie payment of the piemiuni being a condition precedent, and not having been performed. Oiddings v. Insurance Company. 34. 2. See Conver.Hion, Missouri. INTERNAL REVENUE. 1. On September 16, 1864, a collector of internal reven^ne gave a, bond, with sureties, conditioned to account for stamps delivered and. to be delivered under "the act of Congress to provide internal reve- nue for the support of the government, approved March 3, 1S63.'" The said act of 1863 was repealei by the act approved June 30, 1804. The sureties are liable for the stamps delivered under the act of 1863- only, and not for any delivered under the act of 1864. United States. V. Hough, 60. 2. Under the act of July 20, 1868, the Commissioner of Internal Revenue was authoris'.ed to adopt and prescribe for use such instru- ments for ascertaining the strength and quantity of spirits subject to tax as he thought proper. He prescribed the use of the TIce meter, requiring the distillers to pay tlie manufacturers for tlieni and to bear all expenses connected with them. They did not work properly, and by ttie act of June 6, 1872, their use was abandoned. The distillers 622 Index. have no riglit of action agtiinst tlie United States for the monej' paid for tlie meters, either on the ground of an implied warranty, or undur oonnts for money puid and money had and received. Finch v. United States, 237. 3. When a distiller applies, imder section 3311 of the U. S. Revised Statutes, for a reduction of capacity wliile the distillery is in opera- tion, and tlie reduclion is made gi'adnally, the distiller cannot he assessed for the quantity remaining on liand in masli over and above tlie amounts allowed on the first days of tlie reduction but wliieii is under tlie amount of tlie original capacity before reduction. The reduction dates from the last day occupied in inaliing it. Weiizel v. Babe, 422. 4. In an action upon a distillei''s bond, conditioned to comply with tlio provisions of law in relation to the duties of distillers, and pay all fines and penalties imposed for a violation of anj' such provision, the plaintili's petition alleges that by means of the omission of a certain specified duty the petitioner was enabled to defraud the government. Tlie sureties on such bond are not liable for a loss arising to the gov- ernment, not by such omission, but from other causes. United States v. Chouteau, .593. 5. Sureties on a distiller's bond are not liable for the penalty at- tached to the commission of an offense when the principal has effected a full compromise with the government of prosecutions based upon the same offense and designed to secure the same penalty. Id. JUDGMENTS AISTD DECEEES. I. Final ok Interlocutory. 1. A judgment of the Supreme Court of South Carolina decreeing, under the provisions of a State statute, tlie possession of a railroad in tlie State to tlie Comptroller-General of the State, as against a receiver appointed by another court, but leaving all questions of priorities of lien unsettled, and remanding for such orders as may he necessar.y to give effect to its judgment, is not such a final judgment as to author- ize a writ of error. Hand v. Hagood, 1. 2. An order of a court imposing a flue for violation of an interlocu- tory injunction, is intei'locutory only. Hayes v. Fischer, 47. 8. A decree dismissing a petition of tenants of property, which prayed that a receiver of tlie court granting tlie decree be enjoined from dispossessing them bj' a writ of assistance, is not a linal decree, and therefore not reviewable. Hentig v. Page, 210. 4. A judgment denying a uiaiidamus aslied for to require a tax col- lector to receive certain tax-receivable coupons in payment of taxes without deduction, is sucli a final judgment as to be reviewable. Hartman v. Greenhow, 549. 5. Such a judgment is reviewable though rendered by an equally divided court, the effect of wliich is to deny the petition, and though on account of such division not authority in other cases. Id. Index. 623 6. Such a jiiclginont is reviewable on the ground specified In the twenty-flfth section of the judiciary act, (Revised Statutes U. S., sec- tion 709,) as well when rendered in original proceedings in the State courts of last resort, as wlien rendered in appellate proceedings. Id. II. Certainty requibbd in. 7. A verdict for the "full amount of tlie policy, .with six per cent, interest and ten per cent, damages for vexatious delay," leaving the calculation to the court, is sufficiently certain to support a judgment. Belfe v. Wilson, 264. III. Collateral impeachment of. 8. The record of a partition suit contains an order appouiting com- missioners to make partition, (which recited that it was proved to the satisfaction of the court that the required notice by publication had been given,) the repoit of the commissioners, and a confirmation of it, but no petition of tlie applicant for the partition. Such an omission does not render tlie proceeding void, but voidable only, if of any ellect at all, and the proceeding cannot be collaterally attacked. Hall v. Law, 393. JUDICIARY ACT. See Judgments and I)eci'ees, JURISDICTIOJSr. I. Given by Possession op res. Where a Circuit Court of tlie United States had entertained a suit for the foreclosure of a mortgage on a railroad, and had taken possession of all the railroad property by its i-eceiver and still retained possession of the same, and a suit was subsequently instituted in a State court in which the same lailroad was seized by attachment process, which subsequent suit was then removed into the United States Circuit Court: Held — That although the citizenship of the parties was not such as to confer jurisdiction on the United States court, yet that it had jurisdiction by reason of its having possession of the res, or sub- ject-matter of litigation. Bank v. Winslow, 23. II. See Constitutional Law, Courts of tlie United States. JURY. Waiver of. 1. Where the defendant waived a jury, but, after the allowance of an amendment to the plaintiff's declaration, pleaded to the amended declaration and then demanded a jury, the refusal of such demand by the court was a matter in its discretion, and which did not in this case prejudice the defendant's rights. Bamberger v. Terry, 581. 2. Although to authorize a review of the decision of a court without a jury there must be a written stipulation waiving a jury, yet where facts in the record would seem to indicate it, the existence of such a stipulation may be presumed. Boo'gher v. Insurance Co., 564. 624 Index. 3. The withdiawal of a juroi- after the trial was begun, and tlie con- sent to a referee appearing from the record, is snfflcient to give I'ise to such a presumptioa. Id. LACHES. See Infants; Limitations, Statutes of ; Married Women. LAND GKANT8 AND PATENTS. 1. As, under Texas law, purchasers under the 24th section of Mex- ican laws of 1825 can alienate their grants as soon as the concession has been made to them, and a formal act of sale by the original grantee ■with a power to the- purchaser to obtain the title of possession con- stitutes the purchaser the absolute owner of the pi'operty when put into possession, the title in this case, through the original grantee by a deed of bargain and sale to the party appointed by him as his attor- ney to solicit possession and title, and through that party to the ancestor of the defendant in eri'or, is a good legal title. Hiinnlcuit v. Peyton, 87. 2. Hanrick v. Barton, 16 Wall., 106, distinguished. Id. 3. The description in tile lirst panigraph of the opinion of the court held a snflScient identification. Id. 4. As between two claimants under conflicting grants, where the one holding the older grant is in possession, and, tlie one holding the junior grant enters, the elder grantee is disseized only to the extent of the land actually occupied by the junior grantee, and not to the extent of all the land claimed in the juuior grant. Id. 5. The grant of the sixteenth and thirty-sixth sections of public lands to the State of California by the act of March 3, 1S53, was not intended to cover mineral lands, but such lands were excluded from that grant, as they were from all others, by the settled policy of the general government on that subject. Ivanhoe Company v. Keystone Company, 129. 6. The settlement I'equired by the seventh section of the act of 1853, . which defeats the grant of those sections for school purposes, need not be precisely the same, either in regard to the acts to be done or the character o:^ tlie settler, as is required under the general pre-emption law of 1841. The settlement on the school lands under the act of 1853 is governed by that act. Id. . 7. Whenever there exists, at the time the government survey is made of such a section, a settlement, by dwelling-house or cultivation, on any portion of said section, on which some one is i-esiding and as- serting claim to it, the title of the State to that portion does not vest, but the alternative right to other land as indemnity does. Sherman V. Buick, 93 U. S. K., 209, and Natoma Water Company v. Bugby, 96 U. S. E., 165, commented on and explained. Id. , S. When a patent to a citizen for a part of the public lands has been regularly signed by the President, and sealed with tlje seal of the gov- Inpex. 625 enimeut, coiiiitei'sigiied by the recoixlci' and duly recorded, the rio'ht .to its possession by the grantee is perfect, and a writ of mandamus will lie to the officer in whose possession it is to compel its delivery. McBride v. Schurz, 299. 9. In the progress of the proceedings to acquire, nnder the laws of the United States, a title to the public lands, there must, in all cases where the claimant is snceessfu], come a period when the power of the executive officers, who constitute the Land Department, over those proceedings ceases. That period is precisely when the last of- ficial act has been performed which is necessary to transfer the title from the government to the citizen. Id. 10. Title by patent from the United States is title by record, and ■ delivery of the instrnment to the grantee is not essential to pass the title, as in conveyances by private persons. Id. 11 . Therefore, when the officers whose action is rendered by the laws necessary to vest tVie title in the claimant have decided in his favor, an'd the patent has been dulj' signed, sealed, countersigned, and recorded, the title of the land has passed to the grantee, and there remains noth- ing more to be done by the land office but the ministerial duty of de- livering the instr'ument, which can be enforced by mandamus. Id. 12. An acceptance of the grant will, in such case, be prtj.sumed from the efforts of the grantee to secure the favorable action of the department, and especially from the demand for possession of the patent. Id. 13. Newhall v. Sanger, 92 U. S., 761, approved and followed. McLaughlin v. Fowler, 350. 14. See Fraud. LIMITATIONS, STATUTE OF. I. Effect of, in Equity. A claim asserted by bill in chancery to the possession of real estate becomes stale at the expiration of the time which would bar ejectment, courts of equity in such cases acting in analogy to the periods prescribed to the common-law courts. Hall v. Law, 393. II. See Infants. LIMITED LIABILITY ACTS. See Constitutional Law, sub- Commercial Clause. MANDAMUS. See Constitutional Law, Corporation Securities, District of Columbia, Judgments and Decrees, Land Grants. MARRIED WOMEN. I; Disaffirmance of Contracts by. 1. A married woman who has made a deed of her lands during lier infanc3' and coverture need not disaffirm it on coming of age, if her 626 Index. coverture still sontiniies. A disaffirmance after the end of the cov- ertnre is not too late. Sims v. Everliardt, 12. 2. Under the circumstanoes of this case a disHffirmanoe tvventj'-one years after the date of the deed and two months after the close of tlie coverture, is in a reasonable time. Id. 11. Separate Estate of. 3. Wiiere a husband and wife, in the District of Colnmbia, had united in a trust deed on certain real estate previously conveyed to the wife by the husband without any express words creating it her separate estate, the court affirmed certain questions of fact decided by the lower court. Kaiser v. Sticlcney, 346. MATTER m DISPUTE. See Courts of the United States. MINING PARTNERSHIPS. See Partnership . MISSISSIPPI. See Corporation Securities. MISSOURI. Section 1, chapter 90 of the General Statutes of Missouri, revised in 1865, allowinoj damages against insurance companies for vexatious refusals to pay policies, is not repealed by tlie act of March 10, 1S69. Relfe v. Wilson, 264. MORTGAGE. The instrument set out in opinion construed to be a mortgage and not a conditional sale, and therefore held to require registry, under the Missouri statute, to protect tlie propei'ty therein mentioned from the creditors of the grantee. Heryford v. Davis, 226. MUNICIPAL CORPORATIONS. See Corporations, Corporation Securities. NATIONAL BANKS. 1. The liability of tlie stockholders of a national bank for its debts is several, and not joint. National Bank v. Knox, 248. 2. Accordingly, where an assessment was made of 70 per cent, of the par value of their shares on the stockholders, which would have paid off, if collected in full, the bank's debts, but which was only partly collected, owing to the insolvency of many of tlie stockholders, the solvent stockliolders are not liable for any further assessments to make up the deficiency. Id. 3. Semhle that a court of equity has power to restiain, by injunc- tion, the Comptroller from making assessments on stockliolders pal- pably illegal. Id. Index. 627 4. Keiinetly K. Gibson, 8 Wiill., 49S, and Casey v. Galli. 96 U. S., .673, approved. Id. 5. The point decided in National Baul; v. Graham, 100 U. S., 699, tliat a national banlv is liable for gross ne«lig'eiice in tlie los.s of special deposits, reaffirmed. WMtney v. National Bank, 263. NEGLIGENCE. The owner or occupant of land who, by Invitation, express or im- plied, indnces or leads others to come upon his premises, tor any law- ful purpose, is liable in damages to such persons — they using due care — for injuries occnsioijed by the un.=afe condition of the land or its appi'oaches, if such condition vras known to him and not to tliem, and was negligently suffered to exist witliout timely notice to tlie public or to those wlio were likely to act upon such invitation. Bennett v. Railroad Co., 481. NEGOTIABLE INSTRUMENTS. 1. Where persons not parties to a note place their names on its back at the time it is made, and are sued tliereon, and an instruction to the jury is given holding them guarantors, whilst one asked by tlieni which would have made tliem indorsers is refused, and tlie in- strnction went on and detailed the circumstances under which tliey would not be liable as indorsers, sucli an instruction, if error .at all, is an error in their favor from which they could not appe.al. Andreios V. Congar, 29. 2. The Illinois statute i-equiring proof of execution of an "instru- ment in writinji, upon which any action may have been brought, i£ the defendant denying it verities his plea by affidavit," requii-es proof of execution of the guaranty only, and not of the note itself. Id. 3. /SemftZc that an indorsement to an indorsee " for account of the iudorser" does not transfer the title to the negotiable paper, but makes the indorsee a mere agent for collection, and that its meaning is too plain to allow parol proof or proof of usage to contradict it. White V. National Batik, 498. 4. But where the indorsee and indorser both appeared from the evidence to think that the title had passed, and the indorsee p.aid to the indorser value for the paper, the indorsee may recover back the money so paid under a count for money paid to defendant's use. Id, 5. See Trusts and Trustees. NEW TBIAL. Kefusal to grant, not reviewable. Springer v. United States, 535. NOTICE. See Trusts and Trustees, OFFICE. See Constitutional Law, sub-Obligation of Contracts. 628 Index. OSAGE VALLEY AND SOU'rHERN KANSAS RAILROAD. 'I'lie amoiidraeiit (adopted in 1871) to the cluirter of tlio Osage Val- lej- and Soi|tliei-n Kansas Railroad Company, (granted in 1857,) does not create a new cliai'ter, nor extingnish the power granted to the connties by the original charter to subsciibe to its stock. Benton County V. Rollens, 262. PARTNERSHIP. 1. In this case the conrt passes upon certain questions of fact in- volved in the settlement of acconnts of n partnersliip between the partners, and remands for fnrther te.?timony to be taken in reference thereto. Groaty. 0?Hare,'ii. 2. A refusal to allow one of a partnership to testify as to the exist- ence of a private agreement between the partners limiting the an- tliority to incur liabilities for the firm, was correct. Andrews v. Cougar, 29. Mining Partneeship, 3. Mining partnei'sliip.«, unlilce oidinary partnerships, are not dis- .'iolved by the death or bankruptcy of one of its members, or the as- signment of Ills interest. Kalin v. Smelting Company, 574. 4. Where two of three co-tenants of a mine assign their interest, there is a sutiicient co-tenancy between the remaining co-tenant and such assignees to enable him to maintain a suit against them for an accounting. Id. PATENTS. I. NoVBJiTY AND MbKE MECHANICAL SKILL. 1. The patent granted to Shubael Cottle, issued February 24, 1874, numbered 5,774, claiming as new and useful (1) '"an ornamental cliain for necklaces, &c., forme'd of alternate closed links and open links, and (2) an open spiral link formed of coils of tubing," is void for want of novelty and for want of patentability. Pearce v. Mulford, 7. 2. A patent for combining two large tanks with an oi'dLnapy rail- way car as a permanent part of it, so as to carrj' the desired substance in bulk instead of in separate vessels or packages, the tanks being attached directly over the. oar tracks bj^ means of cleats, &c., held void because the evidence showed that similar contrivances had been in use before the issue of the patent, and because not requiring a sufficient exercise of tlie' inventive faculty to render it patentable. Densmore v. Scojield, 271. II. Vabianoe between Original and Reissue. 3. The reissue No. -J, 026 of the patent granted to Hosea Ball on September 25, 1856, for a new and useful Invention In ovens, is void, because the reissue appears on its face to be for a diflferent invention from that described in tlie original patent. Ball v. Baumgai-den, 64; Garneau v. Dozier. 113. 4. The patent issued to Asa M. Swain on May 15, I860, reissued Index. . 629 November 19, 1872, must be coiistnied in vefei-ence solely to tlie original patent, and so cnnstrned the infringement cliargefl is not proved. Turbine Co. v. Ladd., 320. 5. The indisoriminate practice of reissuing patents animadverted on. Id. III. iNPEINaEMENT. 6. A patent for a baliing-ohamber communicating with the furnace by means of flues, and admitting the products of combustion into tlie baking-cliamber only at intervals, is not infringed by tlie use of a baking-chamber not separated by any partition from the furnace and without flues. Garneau V. Dozier, U.S. 7. The Cummings patent for the manufacture of plates of artificial teeth out of hard rubber or vulcanile, or its equivalent, is not infringed by the manufacture of such plates out of celluloid or solid collodion. Goodyear Co. v. Davis, 14.5. 8. Tiie pi'ocess of vulcanization being construed under the claim and specifications to be an essential part of the Cummings Invention, and It not being an essential part of the manufacture of celluloid, the latter is not an equivali;nt for hard rubber or vulcanite. Id. IV. Evidence in. 9. Although previous correspondence between the applicant for a patent and tlie Commissioner of Patents is not admissible to enlarge, diminish, or vaiy tlie language of a patent afterwards Issued, yet when a patent bears on Its face a particular construction, that con- struction may be confirmed by correspondence of tlie applicant show- ing his understanding of it. Id. V. In General. • 10. The patent granted on June 8, 1869, to the plaintiff, for a cer- tain description of revenue stamps, construed not to be infringed by a stamp used by the defendant, a collector in New York, the question beinj;' merely one of construction of that special patent, and involving no legal principle, ^letcher W/;Blake, 39Q PirOTAGE. See Constitvtional Law. PRACTICE. 1. When the appeal bond given was uisiifiicient because containing no security for costs, the court did not dismiss the apj^eal, but granted further time in which to file a proper bond. Seward v. Comeau, 4. 2. A petition for a rehearing in this court can be filed only during tlie term at which the judgment was rendered. Broohs v. Railway Co., 45. 3. A motion to set aside a submission made under the twentieth rule of the Supreme Court and restore a cause to its place on the docker, granted. Smelting and Refining Co. v. Kemp, 215. 630 ■ Index. 4. In this case the court refuses to dismiss a writ of error where it had not been dool