wife, on or before Mar. 1, 1853, $2,350.18. To paper at par in payment and discharge of the secure this he executed a trust deed of certain bond. Stover filed his answer, admitting the land, dated Apr. 8. 1861, to Samuel Chilton. settlement and execution of the bond and deed Chilton had been the attorney of Fretz in the of trust, and the payment in Virginia bankabove mentioned suits and, as alleged in the notes and confederate treasury notes, as bill, this bond and deed of trust were left with charged; but denied that these payments were Chilton; the deed of trust for record, and the the result of an unlawful and fraudulent combond for collection at its maturity. Stover and bination between the respondents and Chilton. Chilton were residents of Virginia, while Fretz He insists, however, that they were in law a was a resident of Pennsylvania. Soon after full discharge and satisfaction of the debt and the delivery of this bond and deed of trust trust deed. But if this were not so, that to the war broke out, and Fretz had no communi- the extent of the compensation due by Fretz cation with Chilton or Stover until after the and wife to Chilton for professional services, close of the war. he should not be compelled to pay a second time. After this answer was filed, the deposition of Isaac Fretz was taken by the complainants, which is the only evidence in the cause. Subsequently, Charles Stover died, and a bill of revivor was filed to make Ralph Stover, the sole devisee and legatee of Charles Stover, and also the executor of his will, a party defendant. Ralph Stover appeared and answered; admitting the character imputed to him by this bill, but setting up new defenses, not made in the answer of Charles Stover to the original bill. On the hearing the bill was dismissed, and this appeal is brought to reverse that decree. Dec. 30, 1862, Stover paid to Chilton $1,100 on the bond in question, in notes of the banks of the State of Virginia. Jan. 15, 1863, he paid $1,266 in Confederate treasury notes, and the bond and deed of trust were delivered up to Stover by Chilton. The principal question of the case was, whether or not these payments were binding on Fretz. The facts bearing upon this question are further stated in the opinion. Messrs. H. A. and J. S. Wise, for appellant. Mr. W. Willoughby, for the appellees. Mr. Justice Davis delivered the opinion of the court: The controversy in this case grows out of a bond executed by Charles Stover to Fretz and wife, on the 8th day of April, 1861, for $2,366.18, payable on or before the first day of March, 1863. The bond was executed in Fauquier County, Virginia, where Stover lived, and was secured by a deed of trust on land in that County, both of which were delivered to Samuel Chilton by Stover, on the day of their date. The execution and delivery of these obligations were in pursuance of a settlement made in the preceding month of February, at Warrington, Virginia, by Fretz and Stover, of a long pending litigation in the courts of Virginia, originally commenced against Abraham Stover, the guardian of Fretz's wife; and to which Charles Stover had succeeded as the sole legatee and devisee of Abraham. Within a day or two after the settlement, Fretz left Virginia for his home in Bucks County, Pennsylvania, leaving Chilton, who had been his attorney in conducting the litigation, to receive this bond and to have the deed of trust recorded. The war of the rebellion ensued soon after this settlement and all communication ceased, and indeed became unlawful, between Virginia and Pennsylvania. After the war had closed, on inquiry it was found that Stover, a short time before the bond matured, and in satisfaction of it, had paid to Chilton, Virginia | bank-notes and confederate paper, at their nominal or par value, and got possession of the bond and deed of trust. Naturally, Fretz and wife were dissatisfied with these proceedings, and in repudiation of them they filed their bill in chancery to set up the deed of trust and have it enforced, on the ground that Chilton had no authority to receive payment in such paper, nor Stover the right to make it. The bill charges actual fraud between Chilton and Stover in this, that Stover, taking advantage of Chilton's great pecuniary necessity, induced him to receive the At the outset of this case we are met with the objection that there is no replication in the record; but this objection, *on the au- [*204 thority of Clements v. Moore, 6 Wall., 310, 18 L. ed. 788, should have been made in the court below. Not having been made there, it will be considered as having been waived. It would work great injustice in this case to allow it to be taken here for the first time, for manifestly the submission was not on bill and answer, for proofs were taken, and it is to be presumed, in the absence of anything in the record to the contrary, that they were considered by the court in the disposition of the cause. So far as the answer to the bill of revivor was concerned, no formal replication was required to avoid its effect as evidence in the cause. Nothing could be brought into the litigation by the bill of revivor besides the mere question whether the brother, brought in on the bill of revivor, was the executor of the will of Stover, and his legatee and devisee, for Catharine Fretz had been made a party to the original suit before answer was made to it. Story, Eq. Pl., sec. 377. The new defenses, therefore, set up in the answer to the bill of revivor, were not pertinent to it, and cannot be considered in the case. Gunnell v. Bird, 10 Wall., 308, 19 L. ed. 915. We are brought, therefore, directly to the question whether the payments by Stover to Chilton were, under the circumstances rounding the parties, of any validity. sur It is argued by the appellants that the bond was not left with Chilton for collection at all, but only for safe-keeping until it matured; but the bill avers the fact to be otherwise, and naturally, it must have been so. Chilton had been the attorney of Fretz and wife through a protracted and angry litigation and, as the evidence shows, assisted at the compromise of it. This compromise was effected in February, 1861, and contemplated several transactions which could not be completed until after to collect it when due, in bank-bills which were current in Virginia at the time, this authority was conferred in ignorance of and without reference to the contingency of war, and in the nature of things was revoked when war broke the power to remit, and this it was impracticable, as well as unlawful, to do. Besides this, the authority to receive bank-bills at all, in the collection of debts, only rests on the theory that they pass as money at their par value by the common consent of the community, and can be used by the principal where he lives in the common transactions of life. But when this is not the case, and war has disturbed the country to that extent that the paper used in Virginia to pay debts is of no value in Pennsylvania, there is no longer any authority to take it by an agent living in Virginia in discharge of a debt due a citizen of Pennsylvania. If it were otherwise, then, as long as the war lasted, every Northern creditor of Southern men was at the mercy of the agent he had employed before the war commenced, and his condition was a hard one. Directed by his government to hold no intercourse with his agent and, therefore, unable to change instructions which were not applicable to a state of war, yet he was bound by the acts of his [*207 Fretz's return to Pennsylvania. Among these was the execution of the bond and deed of trust in question. As Fretz could not in person see that the papers were properly drawn, 205*] he confided that duty to Chilton and the additional duty of having the deed re-out. The authority to collect was based on corded. It was undoubtedly expected at the time that before the bond matured Fretz would hold frequent communications with Chilton, and this may account for nothing being said on the subject of collecting the bond. There was no necessity for it, as the bond had a long time to run and, besides, no trouble was anticipated about the collection of it. It is, however, fairly to be inferred from the relation between the parties that Chilton had authority to collect and transmit, in the absence of any specific directions on the subject. And if war had not intervened, and he had not been told to collect the bond in legal currency alone, he would have been authorized to receive payment in current bank-bills which passed at their par value in business transactions at the place where the contract was to be performed. But if this rule holds good when the country is at peace and undisturbed by civil commotion, it has no application in a state of war like that of the late rebellion. That rebellion effected a change in the status of the parties to this contract, and in the relations between the appel-agent in the collection of his debts the same lants and Chilton. Although the country was unquiet when these parties, in February, 1861, settled their differences, yet it would be a violent presumption to suppose that they anticipated the changed condition of things which If Chilton could not receive payment of the soon after occurred. They doubtless acted on bond in confederate paper and Virginia bankthe belief that the difficulties which threat-notes, neither had Stover the right to pay them. ened the peace of society would be adjusted, It was a void act on his part to attempt to and the monetary affairs of the country remain discharge his debt in this way, as well as a as they were. On this theory they concluded fraud in Chilton to suffer him to do so. His their agreement, and Fretz repaired to his obligation when the bond fell due was to pay home in Pennsylvania, leaving Chilton to see it in the legal currency of the United States, that Stover performed his part of it. It may and yet he tries to discharge it in paper worthbe that it was not expected that the bond which less to Fretz, and with knowledge that, worthChilton obtained from Stover would be paid less as it was, it could not be sent to him. If in specie, but at least it was expected that it it be true that he did not represent Fretz, would be paid in current bank-notes, redeem- still he had no right to do an act of gain to able on presentation at the counter of the himself, but of no benefit to Fretz. Besides, banks issuing them. At any rate, it was exe- what ground had he for supposing that Fretz cuted with reference to the standard of value gave authority to Chilton to make such a sacthen existing in the United States. rifice? As a sensible man, he must have known that this could not be so, especially as the debt was secured by a deed of trust on a valuable farm. It is impossible to escape the conviction that there was collusion between Chilton and Stover in the transaction, but whether this be so or not, the transaction itself was invalid. The war occurred, and Fretz was prohibited by the law of the government under which he 206*] lived from holding *communication with Virginia. If some persons did take the risk and cross the line in order to save their property, certainly Fretz, who did not choose to break the law and encounter the danger, cannot be held responsible for not going to Virginia and withdrawing the bond and deed of trust from the hands of Chilton. When, in 1864, he first heard from Chilton, he was told his papers were safe and would be kept so, as nothing but confederate money could be collected, which was valueless. And not until 1866 did he learn the truth, although after the war closed he had frequent personal interviews with Chilton. This conduct of Chilton's shows his consciousness that he had attempted to wrong his principals and his unwillingness to disclose his culpability. But it is of no importance what he attempted to do, for his principals are not bound by his wrongful acts. If he was authorized when he received the bond as if peace prevailed. It would be a reproach to the law if creditors, without fault of their own, could be subjected to such ruinous consequences. In recognition that this might be the judg ment of the court, Stover asks that his payments may be applied towards the debt for professional services due Chilton from the appellants. Without stopping to inquire whether this could be done, if the appellants owed Chilton anything, it is enough to say that the evidence shows that the indebtedness is the other way. It is claimed that the Virginia bank-notes at least should be treated as payment pro tanto, but, as we are advised, the difference between their market value and that of confederate bonds and notes was merely nominal during the war, and when it ended the banknotes were worthless, being only secured by confederate bonds. See the ordinances adopted by the Convention of Virginia in June and July, 1861, after the State had seceded. Apart 208] from this, the evidence shows they were, when paid, equally with confederate paper, valueless in Pennsylvania. and Abandoned Property Act together, full ef- If the correct view of the legislation is that The views taken of this case accord with Ward v. Smith, 7 Wall., 451, 19 L. ed. 209, and are supported by the Court of Appeals of Vir-it was the object of Congress to give to parties ginia in Alley v. Rogers, 19 Gratt., 381. It dealing with the Government the same profollows, from what has been said, that the bond tection of the judiciary as was offered to dealgiven by Charles Stover to Isaac Fretz and ings between individuals, it follows that any Catharine, his wife, has not been paid, or any counter claim which the Government had part of it, and that the deed of trust to secure against O'Grady should have been presented it is still a subsisting security in full force before the court was called to adjudge the and effect. original claim, and thus enable the claimant to contest its validity or justice, and have that it is a violation of the spirit as well as the letter of the law, for the Secretary to withhold his counterclaim, the character of which was fully known to him, to permit a judgment to be rendered in favor of the claimant, the finality of which is declared by statute, and then to refuse payment thereof, without the party should allow a reduction of an asserted claim on the part of the Government, the amount and validity of which should be determined by his own judgment. It is, therefore, ordered that the decree of the Circuit Court dismissing the bill be re-judicial action upon the same. We submit versed and that this cause be remanded, with instructions to enter a decree for Catharine Fretz, survivor of her husband, in conformity with this opinion. UNITED STATES, Appt., v. DOMINICK O'GRADY'S EXECUTORS. (See S. C., 22 Wall., 641-648.) When United States cannot deduct tax from claim allowed by Court of Claims-conclusive judgment. 1. Where a claimant recovered in the Court of Claims the proceeds of cotton sold under the Captured and Abandoned Property Act, and the United States did not appeal from the judgment of Court of Claims, but acquiesced in the judgment, the Secretary of the Treasury, in paying the judgment, cannot deduct from it the amount due to the Government for an internal revenue tax on such cotton. no appeal is taken to this court, are absolutely conclusive of the rights of the parties, unless a new If, then, the Government had any right to the tax, it was bound to assert that right in the course of litigation, and having failed to do so, has thereby forfeited it. Mr. Justice Clifford delivered the opinion of the court: Jurisdiction was vested in the Court of 2 The judgments of the Court of Claims, where Claims by the Act of 24th of February, 1855, to hear and determine all claims against the United States founded upon any law of Congress, or upon any regulation of an Executive Department, or upon any contract, express or implied, with the Government of the United Argued Feb. 3, 1875. Decided Feb. 15, 1875. referred to said court by either House of ConStates, and also of all claims which may be trial is granted by that court, and are not subject to revision by any one of the executive depart[No. 177.] ments. APPEAL from the Court of Claims. The case is stated by the court. Mr. C. H. Hill, Asst. Atty. Gen., for lant: gress. 10 Stat. at L., 612. Well founded doubts were entertained whethappel-er that Act conferred the power upon that court to allow the United States to file set-offs It has been decided that the Government in such cases, and to hear and determine such held this property as trustee for the owners. matters as usually practiced in common law U. S. v. Klein, 13 Wall., 128 (80 U. S., XX., actions between private parties. Congress, ac519). cordingly, in order to remove those doubts, This being so, it is but a reasonable con-enacted "That the said court shall also have struction of the statute to hold that the pay-jurisdiction of all set-offs, counterclaims or ment of an excise tax, due upon the property claims for damages, whether liquidated or unand made a lien thereon, was a lawful expense attending the trust, which the Secretary was justified in deducting. The deduction of the tax may be assumed to be made at the time of the payment of the proceeds of the sale of the cotton into the Treasury, and as the statute makes the amount due certain, no technical assessment of the tax was necessary. Dollar Savings Bank v. U. S. ante, 80. Besides, it is not to be presumed that the statute intended that the owner should be paid the amount of the proceeds of the cotton and the Government lose its lien for the tax. The sale of the cotton by the Government would entirely destroy the lien, unless one subsisted on the proceeds in the Treasury; and construing the Act imposing the tax and the Captured liquidated, or other demands whatsoever, on 12 Provision is also made by the Act of the 12th of March, 1863, that any person claiming to have been the owner of any abandoned or captured property described in that Act may, at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and on proof to the satisfaction of said court of his ownership of the property, of his right to the proceeds thereof, and that he has never given any aid or comfort to the late rebellion, to receive the residue of such proceeds, after the deduction of any purchase money which may have been paid, together with the expenses of transportation, and any other lawful expenses attending the disposition thereof. 12 Stat. at L., 820. Pursuant to that Act, the claimants instituted a suit in the Court of Claims against the United States, to recover the net proceeds of four hundred and fourteen bales of cotton; and it appears by the record that the claimants, on the first of April, 1872, by the consideration of that court, recovered judgment against the defendants for the sum of $72,450, as the net proceeds of the cotton described in the petition; that the petitioners, after the expiration of ninety days from the day of the rendition of the judgment, procured from the elerk's office of the court a duly certified copy of the judgment, and that they presented the same to the Secretary of the Treasury, and requested payment of the amount in due form of law. Instead of paying the judgment, the Secretary made an indorsement upon the transcript, to the effect that the net proceeds of the cotton, after the deduction of two cents per pound for internal revenue, amounted to the sum of $68,268.60, and he referred the claim to the First Auditor, with direction to report the same to the First Comptroller, as payable out of the proceeds of captured and abandoned property reserved and set apart for that purpose. as the Court of Claims, on motion, might grant a new trial in such a case, if it appeared that any fraud, wrong or injustice had been done to the United States. 15 Stat. at L., 75. But the United States did not appeal from the judgment of the Court of Claims, nor does it appear that any application in their behalf was made to that court for a new trial, as expressly authorized by an Act of Congress. On the contrary, it appears that the United States acquiesced in the *judgment and [*647 claimed to deduct from it the amount now in controversy as due to the Government for the internal revenue tax. Such a power is not vested in the Secretary of the Treasury, nor in any other executive officer of the Government, even if it could be; and it is clear that the judgments of this court, rendered on appeal from the Court of Claims, if no such power is conferred by an Act of Congress, are beyond all doubt the final determination of the matter in controversy; and it is equally certain that the judgments of the Court of Claims where no appeal is taken to this court, are, under existing laws, absolutely conclusive of the rights of the parties, unless a new trial is granted by that court as provided in the before mentioned Act of Congress. Ex parte Russell, 13 Wall., 664, 20 L. ed. 632. By the Act of the 3d of March, 1863, it was provided that no money shall be paid out of the Treasury for any claim passed upon by the Court of Claims till after an appropriation therefor shall be estimated for by the Secretary of the Treasury, which provision was of course as applicable to the judgments on appeal, rendered by this court, as to the original judgments rendered by the Court of Claims, as the subject-matter of the suit in either case is one "passed upon by the Court of Claims.” 12 Stat. at L., 768. By the findings of the court it also appears that the defendants claimed to deduct $4,181.40 as the internal revenue tax of two cents per pound on the cotton, for the net proceeds Either party, by virtue of that Act, was alof which the judgment in the cause was ren-lowed an appeal to the Supreme Court, but dered, and that the Secretary of the Treasury refused to pay any part of the judgment, unless the attorney of the claimants should consent that the deduction claimed should be made; and that the attorney accordingly signed the writing set forth in the transcript, subject to the condition that the rights of all the parties in respect to the tax shall be reserved and remain subject to the decision of the Supreme Court without prejudice. Payment of the residue was duly made to the claimants, but the Secretary of the Treasury reserved and detained the amount claimed as the internal revenue tax on the cotton; whereupon the claimants instituted the present suit, and the Court of Claims rendered judgment in their favor for the whole amount so reserved and detained; and from that judgment the United States appealed. Judgment was recovered by the claimants for the whole amount of the net proceeds of the cotton in the original suit, and it is not even suggested that the United States filed any set-off or counterclaim in that case, nor would it now make any difference if the claim of set-off or counterclaim had been filed in that case, for if filed and rejected the appropriate remedy of the United States was by appeal to the Supreme Court. Appeal to this court in such a case undoubtedly would lie; nor was that the only remedy left to the United States, the Supreme Court declined to take jurisdiction of such appeals, chiefly for the reason that the Act practically subjected the judgments of the Supreme Court rendered in such cases to the re-examination and revision of the Secretary of the Treasury. Gordon v. U. S., 2 Wall., 561, 17 L. ed. 921. Subsequently Congress repealed the provision conferring that authority upon the Secretary of the Treasury, and since that time no doubt has been entertained that it is proper that the Supreme Court should exercise jurisdiction of appeals in such cases. 14 Stat. at L., 9. Judicial jurisdiction implies the power to hear and determine a cause and, inasmuch as the Constitution does not contemplate [*648 that there shall be more than one Supreme Court, it is quite clear that Congress cannot subject the judgments of the Supreme Court to the re-examination and revision of any other tribunal or any other department of the Government. Opposed to that is the suggestion that the internal revenue tax is a lien upon the property taxed, and that the lien, when the property is sold, is transferred to the proceeds of the sale, as in the case of a maritime lien when the res is sold and the proceeds of the sale have been paid into the registry of the court. Whether that is so or not is not a question in this case; but suppose the question is presented, ERROR to the Circuit Court of the United it is a sufficient answer to the suggestion, that|IN States for the Western District of Pennthe United States, if they desire to enforce such a right, must seek some other remedy sylvania. than the one pursued in the case before the The Hempfield Railroad Company was incourt, as it is clear that when such a claim as corporated by an Act of the Legislature of that preferred by the claimants in the original Pennsylvania, approved May 15. 1850, with aupetition passes into judgment in a court of thority to locate, construct and operate a railcompetent jurisdiction it ceases to be open, road from Greensburgh to some point on the under any existing Act of Congress, to re- western boundary line of Donegal Township. vision by any one of the executive departments This Act conferred no power upon the Comor of all such departments combined. Reme-pany to borrow money, nor did it vest in the dies, such as have been suggested, if season- Corporation express power to mortgage its able, may be pursued in a proper case, but it will be time enough to decide the question whether any remedy now remains when the question is properly presented. franchises. Section 12 of an Act of the Pennsylvania Legislature, approved Apr. 12, 1851, referring to this Company, provided as follows: "That the said Company shall have the power Should it be suggested that the judgment in to borrow money on the credit of the Corporaquestion was rendered in the Court of Claims, tion, not exceeding its authorized or increased the answer to the suggestion is that the judg-capital stock, at a rate of interest not exceedment of the Court of Claims, from which no ing six per cent. per annum, and may execute appeal is taken, is just as conclusive under ex- bonds or promissory notes therefor, and to seisting laws as the judgment of the Supreme cure payments thereof, may pledge the propCourt, until it is set aside on a motion for new erty and income of said Company." trial. Judgment affirmed. May 27, 1853, the Company entered into a contract with Richard Fox to construct and finish all the gradation, culverts, etc., on sec EDWARD FOX, Exr. of Richard Fox, De- tion 34 of said road, as located under the char ceased, Plff. in Err., v. JOSEPH H. SEAL, William Workman and W. O. Hughart, Trustees of the Hempfield Railroad Company, and The Wheeling, Pittsburgh & Baltimore Railroad Company, Impleaded with The Hempfield Railroad Com pany. (See S. C., 22 Wall., 424-444.) Mechanic's lien, priority of—effect of mortgage -lien, when extinguished-Pennsylvania Act-mortgage sale. 1. By the Joint Resolution of Jan. 21, 1843, the Legislature of Pennsylvania intended to give to an unpaid contractor a priority of claim to the property of a railroad company over every right that could be acquired under a mortgage, if the mortgage was made after the debt to the contractor was incurred. ter. Fox commenced work and continued it until Sep. 24, 1854, when the Company informed him that it was unable to comply with its part of the contract, and notified him to quit work. Feb. 17, 1855, Fox brought an action against the Hempfield Railroad Company (No. 52, May Term, 1855) in the Circuit Court of the United States for the Western District of Pennsylvania, and recovered judgment at November Term, 1860, for $33,491.25. Fox died September, 1861. Jan. 29, 1867, Edward Fox, executor of Richard Fox, was substituted upon the record as plaintiff. Feb. 1, 1867, a scire facias was issued upon the above judgment, and Mar. 14, 1867, judgment was entered in favor of the plaintiff for $46,162 and costs. (No. 23, May Term, 1867.) Feb. 23, 1871, a writ of scire facias quare executionem non, etc., was issued (No. 11, May Term, 1871), upon the last named judgment, and Joseph H. Seal, William Workman and William O. Hughart, Trustees, etc., in a mort 2. The resolution in effect declared that, while his claim against the company exists, a subsequent mortgage or sale under it cannot defeat the contractor's resort to the property, and his superior right to have it applied to the payment of the debt 3. The contractor's lien continues a prior incum-gage hereafter described, were joined as co-debrance, so long as the debt which it was given to secure remains unsatisfied. 4. A judgment thereon does not extinguish the contractor's right to have the property first applied due him. to the satisfaction of his debt. 5. If the lien of the judgment expired, that of the debt remained, and a revived judgment gives new lien, which follows the property into whosesoever hands it comes. 6. A mortgagee is not a terre-tenant entitled to notice of the revival of a judgment. 7. Under the Pennsylvania Act of Apr. 4, 1862, all that is necessary to enable a contractor to proceed by scire facias against a company claiming to hold the real or personal estate of the debtor to such contractor, by virtue of a mortgage, is that he has obtained a judgment against the indebted company which gave the mortgage. It is not required that his judgment shall be a lien on the property, because the lien of the debt remains so long as the debt remains unsatisfied. 8. A sale under a decree to foreclose a mortgage does not devest the contractor's lien, and he need not look to the proceeds of the sale for payment. [No. 151.] fendants and terre-tenants. Afterwards the Wheeling, Pittsburgh, & Baltimore R. R. Co., having, in the meantime, purchased the real estate and franchises of the Hempfield R. R. Co., were brought into court and made defendants in this sci. fa., by rule to show cause, etc., issued July 29, 1871. On this scire facias judgment was entered against the Hempfield R. R. Co., on default for $59,187.37, with costs. The other defendants appeared and pleaded to the sci. fa. Upon the trial of this issue the alleged errors, now complained of by the plaintiff in error, were committed. obtained a charter from the Legislature of The Hempfield Railroad Company had also Virginia, authorizing it to construct a road from Wheeling to connect with the Pennsylvania Corporation road at its termination on the boundary line between Pennsylvania and Virginia, in Donegal Township. Argued Jan. 27, 1875. Decided Feb. 15, 1875. June 27, 1855, the Pennsylvania and VirNOTE.—Mechanics' liens; when superior to earli-ginia Corporations, without the written consent of this plaintiff, executed a mortgage on the er mortgages-see note, 14 L.R.A. 305. 774 89 U. S |