611*] *Nearly two years afterwards, in March, 1869, the attachment suit came on for trial. The receiver was then allowed, without objection, to appear by counsel and make proof of the facts we have stated, and produce his appointment as receiver, and the decree dis solving the Bank and forfeiting its rights, privileges and franchises. And thereupon he moved the court to dissolve the attachment, and discharge the levy and that the suit abate. This motion was overruled. The receiver then offered, without objection, the same evidence to the jury, and requested the court to instruct them, among other things, that if they believed the evidence, the suit could not be maintained by the plaintiff, and they must find for the defendant. This instruction the court refused, and the jury gave a verdict for the plaintiff, for the full amount claimed. of Congress authorizing the creation of na- "I cannot distinguish," says Story, in Greeley It is too late for counsel to question in this court the right of the receiver to appear in the state court and move the discharge of the at-law. tachment and the abatement of the suit, or to contest the case at the trial. Whatever informality may have existed in the proceeding, it was waived by the silence of the parties. Objections in matters of form to modes of procedure in the court below cannot be urged here for the first time. But, independently of this consideration, we are of opinion that it was a proper proceeding on the part of the receiver to apply to the court below to discharge the attachment, on proof of the facts presented by him, and the production of his appointment and the decree dissolving the association. Invested with the rights of the Bank to the possession of the property by his appointment, it was his duty to take the necessary steps to remove the levy. That levy was void as against his claim to the property; and, in our judgment, it was error for the court to refuse to discharge it on his application. See also Bk. v. Little, 8 Watts & S., The judgment of the state court must be re- CHARLES S. WOOD, Appt., v. JOHN F. BAILEY, Assignee of Julius A. But in addition to this, the suit had abated by the decree of the District Court of the United States forfeiting the rights, privileges and franchises of the Corporation, and adjudging its dissolution. The Act of Congress provides for such forfeiture whenever the directors themselves violate, or knowingly permit any officers, servants or agents of the association to violate any of the provisions of the Act. The information filed against the Bank by the Comptroller of the Currency disclosed several 615] gross violations of the Act by the *directors; and the justice and validity of the decree were not questioned in the state court. With the forfeiture of its rights, privileges and franchises the Corporation was necessarily dissolved, as the decree adjudged. Its existence as a legal entity was thereupon ended; it was then a defunct institution, and judgment could no more be rendered against it in a suit previously commenced than judgment could be Appeal under Bankrupt Act-practice on-conrendered against a dead man dying pendente lite. This is the rule with respect to all corporations whose chartered existence has come to an end, either by lapse of time or decree of forfeiture, unless, by statute, pending suits be allowed to proceed to judgment notwithstanding such dissolution. The prolongation of the corporate life for this specific purpose as much requires special legislative enactment as does the original creation of the corporation. No such enactment is found in the Act (See S. C., 21 Wall., 640-642.) struction of Act. 1. Under the Bankrupt Act, no appeal will be al- ANN statutes, section, 4981, the words "defeated party" should be construed "opposite party," or "successful party," or "adverse party." [No. 232.] Argued Apr. 22, 1875. Decided May 3, 1875. Alabama. The case is stated by the court. Messrs. P. Phillips, T. H. Herndon and S. Mr. Justice Miller delivered the opinion of the court: This is an appeal from an order of the Circuit Court for the Southern District of Alabama dismissing an appeal which the appellant sought to prosecute from a decree of the district court sitting in bankruptcy. Bailey, the assignee in bankruptcy of Julius A. Wood, had filed a bill in chancery in the district court against Charles S. Wood, the present appellant, and Gaines Whitefield, and Du Bose and wife, in regard to a mortgage held by Wood and a supposed vendor's lien claimed by the other parties on lands owned by the bankrupt and passing to the assignee by the assignment in bankruptcy. The object of the bill was to contest the validity of these means and to have a sale of the land discharged of the claim asserted by defendants. The first petition filed by Bailey, which could hardly be called a bill in chancery, was abandoned and a regular bill in chancery was afterwards filed, in which a subpœna issued which was served on all the defendants, and they appeared, demurred and answered in regular course of chancery procedure. The language of the statute is very strong and admits of no other interpretation. No appeal shall be allowed in any case from the district to the circuit, unless it is claimed and notice given to the clerk, and also to the other party, within ten days after the entry of the decree or decision appealed from. The failure to give notice to the other party within the ten days, whether claimant or assignee, is equally fatal to the appeal, as the failure to give the notice to the clerk that the appeal is claimed. This is in harmony with the policy of the Bankrupt Law, second only in importance, as we have recently said in the case of [*642 Bailey v. Glover, at this term of the court [ante, 636], to the policy of equal distribution, namely: The necessity of speedy disposition In that case this of the bankrupt's assets. same provision for limiting the time for appeals is referred to as evidence of that policy. There is in the statute, as above cited, what seems to us a manifest clerical error, or verbal mistake in the use of words "defeated party" as one to be notified of the appeal, and the error is also found in the Revised Statutes, sec. 4981. The "defeated party in equity" is generally the one who takes the appeal, and does not, therefore, require notice, but must give it. We can see no use or sense in that word in that connection. The purpose of the Act, the remainder of the section in which the word is used, and the impossibility of any other reasonable meaning requires that the word should be construed "opposite party," or "successful party," or "adverse party"-in a word, the party who does not appeal in an equity suit, and who is interested to oppose the appeal. In any event, the party to be notified in this case was the assignee, Bailey, and he was not notified within the time which the statute makes a condition of the right of appeal, and the decree of the District Court dismissing it is affirmed. UNITED STATES, Petitioner. Testimony was taken and a final decree rendered in the district court declaring all the claims of the defendants void as liens on the land. This decree was filed in the court on the 21st day of June, 1871, though dated on the first day of that month. There is found in the record notices of appeal addressed to the *Ex parte in the Matter of THE [*648 clerk of the district court by the counsel for Wood and by the counsel for Whitefield, both of which are dated and filed in the district court on the day the decree was filed. But no notice of this appeal was given to Bailey, the assignee, until October 28, 1871, the date of the Marshal's service of said notice of Charles Wood's appeal. Upon motion of the appellee this appeal was dismissed in the circuit court for want of notice in time, to the assignee. The 8th section of the Bankrupt Act, which provides for this class of appeals, declares that "No appeal shall be allowed in any case from the district to the circuit court unless it is claimed and notice given thereof to the clerk of the district court to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity within ten days after the entry of the decree or decision appealed from." (See S. C., "Vigo's Case," 21 Wall., 648-652.) Appeal from Court of Claims-special act. 1. Where Congress referred a claim to the Court of Claims for judicial determination, and conferred appeal to this court necessarily follows, and this special jurisdiction for that purpose, the right of court will grant a mandamus to the Court of Claims, to direct it to allow an appeal in such a case. [No. 8. Original.] Argued Apr. 23, 1875. Decided May 3, 1875. PETITION for mandamus. The case is stated by the court. If the court below was authorized by the Act of Reference to enter judgment against the United States, the defendants are entitled to an appeal by virtue of the 1st section, Act 25 June, 1868, 15 Stat. at L., 75. We concur with the judge of the circuit court that, for want of service of notice of the ap- By the Act of March 1, 1784 (p. 473, 1 Laws peal on Bailey, the assignee, within ten days of U. S., ed. 1815), the United States, for a of the time of filing the decree in the district consideration moving from the State of Vircourt, the appeal must be disallowed. ginia, assumed inter alia, this debt. This proposition of Congress was acceded to by the State of Virginia, and on the first of March, 1784, here delegates in Congress, in open session, executed a conveyance ceding the said Northwest Territory to the United States, and the whole matter was finally consummated by the famous Ordinance of 1787, with which this court is familiar. Subsequently, several Acts of Limitations shall be re-imbursed. 6 Journal of Congress, were passed, the one most important to this 1780, p. 213. question being Act of Aug. 5, 1790, 1 Stat. at L., 178, 179, which provides that "No claim of any citizen be admitted as a charge against the United States in the account of any State, unless the same was allowed by such State before 24th September 1788." As stated in the opinion of the court below, this claim failed to comply with this condition. "It is, therefore, evident that, without the private Act (8th June, 1872), the claimants had no right of action against the Government, which could have been maintained as a matter of right in a court of law. Congress appears to have recognized this fact, when taking measures to give the parties relief." Opinion of Ct. of Claims. These facts bring this case within the principle laid down in the case of Ex parte, U. S. 17 Wall., 439, 21 L. ed. 696, known as the Atocha Case. In that case this court held that the United States was not entitled to an appeal, on substantially two grounds: 1. That the United States was not primarily liable and, therefore, To quote the language of Mr. Justice Field it was not properly a case against the United in distinguishing the Meade Case from the Ato-States; and, 2. That the private Act did not cha Case, 17 Wall., 439, 21 L. ed. 696, the spec- provide for an appeal from the decision of the ial Act of Congress was passed to remove the Court of Claims. restriction of the 3d section of the Act of 5th August, 1790, and 10th section Act 3d March, 1863, 12 Stat. at L., 765. This claim was thus placed under the jurisdiction of the court, equally as though these sections were not in existence. The present claim is not to be paid out of any fund which the United States holds as trustee or agent for another nation, as in the Atocha case, but is one for which the United States has acknowledged a liability (but for the limitations) for ninety years, this liability being to the citizen mediately through the State of Virginia. Nor is there any unbalanced account between the United States and Virginia, arising out of the negotiations of 1784, to which this payment may be charged by the United States. It may be claimed, however, that the United States is entitled to an appeal in the case of McKee, under the 1st section of the Act of June, 1868. This section, so far as it relates to appeals from judgments rendered in pursuance of any special power or jurisdiction of said court, has been repealed. Sec. 707, p. 132, and § 5596, p. 1091, of the Rev. Stat. Ū. S. It is claimed that the Act of June 8, 1873, "Did not refer the claim to the Court of Claims, that it might enter judgment, but that it might adjust and settle the claim, reserving to Congress the right to revise its decision," etc. To this it is sufficient to say: 1. That the case of McKee v. U. S. is not now in this court, and this court will not assume to review If it be considered by this court that the a judgment not legally before it. 2. If Concourt below was authorized to enter a judg- gress had intended to revise the adjustment ment, which is to be paid out of appropriations and settlement which it authorized the Court for judgments of said court, then the United of Claims to make, it would have used apt States is entitled to an appeal and a re-exam-words to convey that intention. The power to ination of the whole case, as in Meade v. U. S., 9 Wall., 691, 19 L. ed., 687. Another view of the Act of June 8, 1872, is, that Congress did not refer the further claim to the court below that it might enter judgment, but that it might adjust and settle the claim, reserving to itself the right to revise its decision, and giving the court over this case only that jurisdiction which it had exercised under the Act of Feb. 24, 1855. If this view be correct, the court below has transcended its power, and it is the province of this court to set aside said judgment. In order to do this, the record must be brought before the court, either upon appeal or by cer tiorari. Mr. W. Penn Clarke, for respondent: This was a debt for which the State of Virginia was primarily liable. It was a debt contracted by that State in defense of the Northwest Territory, and the payment or re-imbursement of which was assumed by the Resolution of Congress of October 16, 1780, which says that: adjust and settle the claim was conferred upon the court, and Congress doubtless intended that it should adjust and settle it in the manner in which it adjusts and settles all cases which come before it, by the rendition of an order, decree or judgment, showing the finding or conclusion of the court upon the law and facts submitted for its consideration. It is only in this way that any court can settle and adjust any case. Mr. Chief Justice Waite delivered the opinion of the court: On the 8th of June, 1872, Congress passed the following Act: "An Act Referring the Claim of the Heirs and Legal Representatives of Colonel Francis Vigo, Deceased, to the Court of Claims for Adjustment. "Be it Enacted by the Senate and House of Representatives of the United States of America, in Congress Assembled, that the claim of the heirs and legal representatives of Colonel Francis Vigo, deceased, late of Terre Haute, The necessary and reasonable expenses which Indiana, for money and supplies furnished the any State shall have incurred, since the com- troops under command of General George Rogmencement of the present war, in subduing any ers Clarke in the year 1778, during the RevoluBritish posts, or in maintaining forts and gar- tionary War, be and the same is hereby rerisons within and for the defense, or in acquir | ferred, along with all the papers and official ing any part of the territory which may be documents belonging thereto, to the Court of ceded or relinquished to the United States, Claims, with full jurisdiction to adjust and settle the same, and in making such adjust- is the word used in the Act defining the general ment and settlement the said court shall be jurisdiction of the court in respect to claims governed by the rules and regulations hereto- transmitted by either House of Congress. fore adopted by the United States in the set- It also appears that the bar of the Statute tlement of like cases, giving consideration to of Limitations applicable to that court is reofficial acts, if any have heretofore been had moved in this case and that in some respects in connection with this claim, and without the rules of evidence are relaxed. All this regard to the Statutes of Limitation." would have been unnecessary if the court was not to be governed by the general laws regulating its practice and jurisdiction except so far as they might be modified to meet the necessities of this special case. So, too, we find that no provision is made for the payment of any judgment that *might be rendered [*651 or for any report from the court to Congress, although it must have been expected that a judgment against the United States was at least possible. Such an omission would hardly have occurred if it had not been supposed that provision for payment had already been made in the general law regulating the payment of all judgments of that court. On the 31st October, 1873, the heirs of Colonel Vigo filed in the Court of Claims their petition against the United States, under the authority of this Act, and with their petition filed the papers and official documents belonging to the claim. Judgment was rendered in 649*] the action on the 18th *January, 1875, against the United States for $49,898.60. From this judgment the United States asked the Court of Claims for the allowance of an appeal to this court, which was refused. The present application is for a mandamus from this court, directing the judges of that to allow the appeal. From all this we think it manifest that Congress intended to refer this claim to the court for judicial determination and to confer special power and jurisdiction for that purpose. Such being the case, the right of appeal necessarily follows: The Court of Claims, by the terms of the Act under which it is organized, has jurisdic- | tion, among other things, to hear and determine all claims which may be referred to it by either House of Congress. 10 Stat. at L., 612; R. S. § 1059. All petitions and bills praying or providing for the satisfaction of Atocha's Case, 17 Wall., 439, 21 L. ed. 696, private claims founded upon any law of Con-is materially different from this. In that, gress, or upon any contract, expressed or im- the claim of Atocha was against Mexico, and plied, with the Government, are required to be the obligation of the United States for its paytransmitted, with all the accompanying docu- ment grew out of the Treaty of Guadalupe Himents, to the Court of Claims, by the Secretary dalgo. By that Treaty the United States exonof the Senate or the Clerk of the House of Rep-erated Mexico from all demands of their citiresentatives, unless otherwise ordered by a zens, which had previously arisen and had not Resolution of the House in which they are in- been decided against that Government, and entroduced. 12 Stat. at L., 765; R. S., § 1060. gaged to satisfy them to an amount not exceed650*] In all cases of final judgments by the ing $3,250,000. They also stipulated for the Court of Claims, the sum due thereby is to be establishment of a Board of Commissioners to paid out of any general appropriation made ascertain the validity and amount of the by law for the payment and satisfaction of claims, and provided that its awards should private claims, on presentation to the Secre- be final. On the 14th of February, 1865, Contary of the Treasury of a copy of the judgment. gress passed a special Act for the relief of 12 Stat. at L., 766; R. S., sec. 1089. By the Atocha, and in it directed the Court of Claims Act of June 25, 1868, 15 Stat. at L., 75, in to examine into his claim, and if found to be force when the proceedings in the Court of just and within the Treaty, to fix and deterClaims were commenced in this case, it was mine its amount. The Act also directed that provided that an appeal should be allowed on the amount adjudicated and determined by behalf of the United States "From all final that court should be paid out of any money judgments of the said Court of Claims adverse in the Treasury not otherwise appropriated, to the United States, whether the said judg- but the amount to be paid was in no event ment shall have been rendered by virtue of the to exceed the balance of the moneys provided general or special power or jurisdiction of said court." This Act is substantially re-enacted in section 707 of the Revised Statutes, and, as we think, gives to the United States the right of appeal from the adverse judgment of the Court of Claims in all cases where that court is required by any general or special law to take jurisdiction of a claim made against the United States and act judicially in its determination. Upon an examination of the Act of Congress under which the court took jurisdiction in this case, we find that the claim, "along with all the papers and official documents belonging thereto," was referred to the court "with full jurisdiction to adjust and settle the same." It is a fact of some significance that the word "referred" is here employed, inasmuch as that 692 in the Treaty for the payment of such claims which remained unapplied to that object. The Court of Claims was of the opinion "That it was the intention of Congress that the court should proceed, not as a court in trying an action against the United States, but as commission similar to that provided by the Treaty." And this court construed the Act as referring the matter "To the court to ascertain a particular fact to guide the Government in the execution of its treaty stipulations," and held that "as no *mode was pro- [*652 vided for a review of its action, it must be taken and regarded as final." We think that the return of the judges of the Court of Claims to the alternative writ in this case is not sufficient, and a peremptory mandamus is ordered. AR U. S The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas., not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing. case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: Atl. Atlantic Reporter, Pac. Pacific Reporter, N. E. Northeastern Reporter, N. W. Northwestern Reporter, So. Southern Reporter, S. W. Southwestern Reporter, S. Ct. Supreme Court Reporter. We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books. U. S. Notes 21 Wallace. 22 L. ed. 692-120 p. EDITOR. ANN |