ance with the views we have presented. The point ruled in that case is that if a mort gage is executed merely to protect property in the hands of the mortgagor from his creditors other than the mortgagee, the mortgagor retaining possession and the right of disposition, and these facts appear upon the face of the mortgage, it would be fraudulent and void as against other creditors, and should be so declared by the court. And the court, to sustain 527*] this proposition, *refer to Freeman v. Rawson, 5 Ohio, 1, a standard authority in this class of cases, for the views we have advanced on this subject. bill of review. To the character of a bill of review, it adds that of an original bill, seeking to set aside the decree in the principal suit, on the ground of inadvertence and mistake on the part of the complainant's solicitor and counsel. The bill was filed by Ezekiel R. Day, the appellee here, to reverse and set aside a decree which had been rendered against him for the sum of $6,230, in the suit referred to, in which John Phelps Putnam, Heman Ely and Stevenson Burke, the appellants here, were the complainants, and the New Albany and Sandusky City Junction Railroad Company, the City of New Albany, Silas C. Day, the said Finally, it is insisted if the mortgage is held Ezekiel R. Day and divers other persons, stockvoid in law, still the delivery of the goods in holders of said railroad company, were the pledge vests a sufficient lien, prima facie, to defendants. The original suit was a creditor's enable the appellants to enforce their lien in bill, filed in the Circuit Court of the United equity. States for the District of Indiana, in January, The answer to this is, that the case made by 1868, by the complainants as judgment eredthe bill does not proceed upon such a delivery itors of the said railroad company, under a at all, but upon the mortgage and seizure un-judgment recovered in the name of certain der it. Besides, if the appellants could turn trustees in the Floyd County Circuit Court of the proceeding into a voluntary pledge by the Indiana, in November, 1857, the beneficial indebtors, it would not help them, for it would terest of which judgment had been assigned to violate the preference clause of the Bankrupt the complainants. The bill was filed against Act, as they got the goods only twelve days be- the City of New Albany, Ezekiel R. Day, and fore the petition in bankruptcy was filed. the other defendants thereto, for the purpose of compelling them, as stockholders of the New Albany and Sandusky City Junction Railroad Company, to pay the amounts alleged to be due and unpaid by them on their stock subscriptions to the said railroad company, so that the amount of said judgment due to the complainants might be paid and satisfied, it being alleged that the said railroad company was insolvent, and that all its property had been exhausted in satisfying other claims. A decree was rendered in July, 1869, adjudging that there was due to the complainants, on their said judgment, upwards of $70,000; and that there was due on the stock subscriptions of said railroad company from the City of New Albany, upwards of $100,000; from the appellee, Ezekiel R. Day, $6,230; and from Silas C. Day $3,026, which sums were directed to be paid and applied pro rata in satisfaction of said judgment. The bill was dismissed as to the other defendants, it being found upon a defense to that effect set up by them, that they were not indebted on their subscriptions, most of their stock having been taken off their hands by the City of New Albany, under provision for that purpose, contained in the orig inal subscriptions. The case of these defendants was considered by this court in Burke v. Smith, 16 Wall., 390, 21 L. ed. 361. The decree of the Circuit Court is affirmed. JOHN PHELPS PUTNAM, Heman Ely, and Heman Ely as Admr., etc., and Stevenson Burke, Appts., v. EZEKIEL R. DAY. Bill of review, what examinable on-answer in *1. On a bill of review in equity, nothing can be examined but the pleadings, proceedings and decree which, in this country, constitute what Is called the record of the cause. The proofs cannot be looked into as they can on an appeal. 2. On such a bill filed by a defendant to set aside the decree, he is bound by the answer filed on his behalf by his solicitor, though he did not himself read it, unless he can show mistake or fraud in filing it. The answers of other defendants cannot be read in his favor. 3. Where the defendant by his answer admits the claim to be due, and prays contribution from other defendants, without setting up any defense to the demand, he cannot, after a decree and on a bill of review, ask to have the decree set aside on the ground of laches, on the part of the complainant in bringing suit. [No. 124.] Argued Jan. 22, 25, 1875. Decided Feb. 15, 1875. A The City of New Albany, in its answer, set Messrs. Porter & Harrison, J. A. Garfield up a defense peculiar to itself, to wit: a com and S. Burke, for appellants. Mr. M. C. Kerr, for appellee. Mr. Justice Bradley delivered the opinion 27 L. ed. U. S. 269. plete settlement and *compromise with [*61 the railroad company in 1857, by which the bonds issued by the city in payment of its stock subscription were surrendered upon its assuming and paying a large amount of debts due by the company; and the city insisted that this settlement was made in good faith, and was for the benefit of the railroad company and its creditors; and that the complainants had lain by and slept on their rights too long to be permitted to disturb so proper and just an arrangement. The case of the city was pending in this court, on appeal, when the present bill of review was filed by Ezekiel R. Day. A decision has since been made in favor of the city, and will be found reported in 11ners, to represent him as his counsel; and that Wall., 96, 20 L. ed. 155. they advised him to file the bill, and ask for Day, the present appellee, did not join the equitable relief, and claim a pro rata contribu other defendants in the defense set up by tion among the stockholders; that he did not them, but filed a separate answer and a cross- see the answer and cross-bill which they prebill, in which he admitted that he had sub-pared, and had no knowledge of the allegations scribed stock in the railroad company to the contained in them; that he was informed that amount of $36,100, and that $3,500 thereof re- the court had acted on his answer and crossmained unpaid. He then stated that the other bill, and that he was out of court; that he defendants, including the City of New Albany, relied principally on Mr. Collins, as Day was were subscribers to a large amount, which he young and inexperienced; but that he never set forth in a list; and he claimed that they consulted Collins but once, though he saw him had not paid as much in proportion on their a second time; that he had no business in the subscription as he had paid on his; and prayed case that needed any further explanation at that they might be compelled to contribute un- the time; that Collins was sick much of the til they had paid an equal proportion to him- time, and died in May, 1869, during the pendself; in which case he alleged there would be ency of the suit; that he saw his attorney, Day, money due to him, instead of money due from occasionally after the suit was brought, and him. His cross-bill, being demurred to, was dis- consulted with him and paid his expenses to missed; and the decree against him was made Indianapolis, when he went there to file the on the admissions of his answer, charging him answer and cross-bill. This was all the matewith the $3,500 admitted to be unpaid, with rial evidence in the case. The circuit court set interest thereon. aside the decree against Day, and the case is before us on an appeal from this decision. The complainant failed utterly, we think, to make out a case of fraud, mistake or want of authority on the part of his solicitors and counsel in filing the pleadings in the original suit, and taking the ground they did on his behalf. Of course fraud is not charged; but the complainant relied on the fact that he never saw the answer or cross-bill, and did not know their contents. This is no ground for allowing him to repudiate them now. It is not alleged that he would have placed his defense on any different ground had the answer and cross-bill been read by him. Indeed, they were drawn in pursuance of the advice received from his counsel and acquiesced in by him. His not having sworn to his answer, or even In January, 1870, the present bill of review was filed, to have this decree set aside as to the appellee, Ezekiel F. Day. In this bill, which, as before noted, was a bill partly original and partly in review, the complainant states, briefly, the proceedings in the former suit; admits the filing of the answer and crossbill before referred to, but alleges that it was filed by his attorney, and was never seen or read or sworn to by himself; and that it did not set up, truly, the facts, or the true grounds of his defense. Ile further states that the truth was, that his stock was taken by the City of New Albany, in the same manner as that of the other defendants, except certain shares which he subscribed, payable in lands; and that he was not indebted to the railroad company for any unpaid portion of stock sub-read it, is no excuse. It was his duty to have scribed by him. He also insisted, as a ground of review, that the decree in the former suit was erroneous, and should be set aside for three reasons specified in the bill of review: First. That Floyd County Circuit Court, in which the judgment had been rendered, had exclusive jurisdiction of the matter. Second. That the original bill did not set out sufficient facts to show an indebtedness on his part. Third. That the complainants were guilty of gross laches and negligence in seeking equitable relief, having lain by and slept on their right to equitable relief, if they had any, for more than nine years. known its contents, if not to have verified it. If his counsel failed to make as good a defense for him as they might have done, it was his misfortune and cannot be rectified after the passing of the decree. Litigation would never come to an end if parties were permitted thus to shift their entire ground of attack or defense, after finding where the pinch of the cause lay. They must be estopped by the record, unless they can show that they were the victims of fraud or mistake. Taking the cause, then, as it stood when the original decree was rendered, does the bill of review show any error for which it can be reversed? The appellants answered this bill, insisting It is to be remembered, that on a bill of re63*] upon the regularity and conclusiveness view the proofs cannot be considered. [*65 of the proceeding, and denying that Day had 2 Dan. Ch. Pr., 1631, 3d ed. If the decree is any defense to the original suit, or that he contrary to these, remedy must be sought by ever assigned his stock to the City of New appeal. Story, Eq. Pl., sec. 407. We are conAlbany. To this answer a general replication | fined, then, to an examination of the pleadings, was put in. Day was, himself, examined as a proceedings and decree, and the pleading of witness, and testified to the transfer of his Day himself is to have controlling effect so stock to the city, except as stated in his bill, far as it contains admissions against his own and to the payment of all dues thereon. He interest. It is apparent that the decree of the also testified as to his employment of an at-circuit court on the bill of review was based torney to represent him in the original suit. on the answers and evidence adduced by the and to the manner in which his answer and other defendants, which tended to show that cross-bill were filed. His testimony on this point was to the effect, that when the suit was instituted, he employed James Collins and his own nephew, Addison Day, who were part22 WALL U. S., Book 22. the appellee's case was similar to theirs. Day's own answer in the case was entirely disregarded. But is it possible to ignore it? Day was not necessarily in the same category with 765 the other defendants. All had an equal opportunity to surrender their subscriptions to the city, and it was claimed by the other defendants in their answers, and admitted and shown, by a stipulation filed in the cause, that they did surrender their subscriptions to the city, and that the city assumed them. But they do not state, and it would not be evidence for Day if they did, that Day surrendered his subscription. On the contrary, in his own answer, which is evidence against him, he clearly admits that he was a large subscriber to the stock, and that there was due on his subscription the amount for which the decree was rendered against him. There is nothing in the bill nor in the report of the master nor in any other part of the record, unless it be the answers of the other defendants, inconsistent with this admission of Day himself. On the contrary, the charges of the bill and the report of the master are in entire conformity with it. As the record stands, no other decree could have been made than that which was made, unless the other errors assigned have some ground to stand on. to the rule that the proofs cannot be examined on a bill of review, and his answer is: "I think not." In this, we think, the court erred. We think the rule to be well established, and a wholesome one, that (as before stated) the proofs cannot be looked into on a bill of review. This was so expressly held in Whiting v. Bk., 13 Pet., 6. It is true that in our practice the final decree does not contain a summary of the facts as it did in the English practice which summary was examinable on a bill of review; but to countervail this absence of statement in the decree, we have adopted the practice of looking back of the decree into the whole record of the pleadings and proceedings, including orders, master's report, etc., together constituting what is generally regarded as [*67 the record in the cause, and necessary to be examined in order to a proper understanding of the decree itself. This makes a record similar to that of a common law action, the decree being the judgment of the law upon the allegations of the parties, and the conclusion which the court deduces from the proofs. But Those errors are not relied on by the court the conclusions of fact deduced from the proofs below. As to the first, namely: that the Floyd are not spread upon the record in extenso, unCounty Circuit Court had exclusive jurisdic-less through the medium of a report made by tion of the case, it is hardly necessary to remark upon it. Surely, a creditor's bill may be filed in a different court from that in which the creditor obtains his judgment; for, other wise, none could have been filed when 66*] *courts of law and equity were separate courts, as they still are in some of the States. The second was clearly groundless. The bill stated the ground of the claim against Day, and the answer admitted it, and supplied the particulars if they were not sufficiently specified in the bill. a master or commissioner. The 86th Rule in equity, adopted by this court, has abolished the recital of the pleadings and proceedings in the decree, and has prescribed the form in which it shall be couched, as follows: "This cause came on to be heard at this term, and was argued by counsel; and thereupon, in consideration thereof it was ordered, adjudged and decreed, as follows, viz.:" here inserting the decree or order. The decree, it is true, may proceed to state conclusions of fact as well as of law, and often does so for the purpose of rendering the judgment of the court more clear and specific. The record thus made up constitutes the basis of examination on a bill of review, but it never contains the proofs adduced in the cause. An examination of the record in this case does not, in our judgment, afford any ground for setting aside the decree made against Ezekiel R. Day in the original cause. The decree of the Circuit Court must be reversed, with directions to dismiss the bill. Dissenting, Mr. Justice Davis. The third error assigned was that the complainants had been guilty of gross laches and negligence in preferring their claim, having waited nine years after the return of their execution unsatisfied before filing their bill. This might have been a proper defense to make to the original bill; but it was not the defense which the appellee made. He did not put himself on that ground. He admitted his liability and prayed that the other defendants might contribute their just share, which he insisted would relieve him. How could the court under such a defense as this have dismissed the bill for laches and delay? A decree has to be founded on the allegata as well as Mr. Chief Justice Waite did not sit on probata of the case. There is nothing in the the argument of this cause, and took no part allegata, which alone are before us, to justify in the decision. different decree from that which was made. The court below evidently relied on its knowledge and estimation of the proofs in the cause. The learned judge in his opinion, in summing up his views of the case, says so, in so many words: "When this court can see by the answer of the association subscribers and the evidence in the original case that there was no just claim on the part of the railroad company against the Days; that they had been released from such claim if any existed, years before the creditor's bill was filed, and even before the judgment was recovered on which it 64*] was founded, and that the court dismissed the bill as to persons equally liable with them, does such a rule apply?" Referring *JOHN M. BERNHISEL, Appt., [*170 บ. DANIEL R. FIRMAN, Assignee of A. R (See S. C., 22 Wall., 170-179.) Usury, effect of-in second security when first valid recovery on original debt. 1. In a State, where there is a statute making usury penal, but not declaring the contract void, a usurious bond and mortgage may be enforced for the amount actually due. 2. If a security founded upon a prior one be fatally tainted with usury, and the prior one were free from it, but given up and canceled, and the NOTE-Usury in renewal contract as affecting original agreement-see note, 33 L.R.A. 628 latter one thereafter be adjudged void, the prior | priate evidence, is neither within the letter one will be revived, and may be enforced as if the latter one had not been given. nor spirit of this section. 3. A vendor's lien may be revived under the same circumstances. In the same suit, wherein there is a failure to recover upon the void security, the valid one, on account of which it was given, may be enforced. [No. 180.] Messrs. C. M. Hawley and T. Marshall, for appellee: The appellant by his proving in the court of bankruptcy, his said two new notes and mortgage, given to him and bearing date Apr. 26, said, and having thereby elected to stand upon Argued Feb. 5, 1875. Decided Feb. 15, 1875. 1872, under said new arrangement as afore Territory of Utah. APPEAL from the Supreme Court of the The facts are stated in the opinion. In 1866, the date of the notes of Wright to Bernhisel and to Pond & Co., there was no law in Utah on the subject of interest. It was, therefore, left to the agreement of the parties and to the rule laid down in 1 Am. Lead. Cas., 5th ed., p. 514; and the rule in Young v. Godbe, 15 Wall., 565, 21 L. ed. 251. After these notes matured, the Legislature of Utah, at its session in 1869 (see Laws of that year, p. 17, ch. 19), enacted, "That it shall be lawful to take ten per cent. interest per annum, when the amount of interest has not been specified or agreed upon;" leaving, as before this law was passed, the right of the parties to agree upon the rate of interest; but when not agreed upon, the right of the obligee to demand ten per cent. This, however, could not be construed retrospectively, and therefore could not apply to past transactions. Apr. 26, 1872, Bernhisel, had a bona fide existing lien on this real estate for more than its actual value, computing the interest at the rate prescribed by the Utah law and thus making the law retrospective, and computing interest according to the custom of Utah, he had a lien of over $10,000. This lien, unless it was lost by consolidating the three claims in one, is protected by section 20 of the Bankrupt Act. The court below held that this lien was discharged by the act of Bernhisel, and that the transaction was fraudulent according to the terms of section 35 of the Bankrupt Act. This section does not prevent an insolvent person from buying, selling and making profit or suffering loss as the business may turn out. Bump, Fraud. Assign., pp. 61-63. And these transactions can only be avoided when the payment, pledge, assignment or conveyance is made in fraud of the Act. In fraud of the Act is essential. How can a payment, a pledge, an assignment or a conveyance be made in fraud of the Act, when the payee, as signee, pledgee or transferee has a vested right to have the property or its avails applied to his use. Again; the act must be done with a view to give a preference to any creditor or person having a claim against him. Simply permitting a creditor or a person having a claim against him, who has a preference, to retain such preference, and recognizing it by appro this new mortgage lien, and having commenced this suit in equity to enforce this particular mortgage lien against the rights and interests of the other creditors, he is precluded from claiming under the original canceled and discharged notes and mortgages. Wiley v. Boyd, 38 Ala., 625; In re Wynne, see 4 Bk. Reg., 5, 6; In re Jordon, 9 Bk. Reg., 416; see, case of Starr v. Ellis, 6 Johns. Ch., 395; Hubbard v. Jasinski, 46 Ill., 160; Woollen v. Hillen, 9 Gil. Md., 185. It was the voluntary act of increasing said stances and facts that existed at the time, and debt and mortgage lien, under the circumthe reception of the same by appellant as shown by the pleadings and evidence, that renders the appellant and the said debtor obnoxious to the charge of fraud against both the Bankrupt Law and the other creditors, and therefore the said notes and mortgages are absolutely void. The extraordinary measures the appellant took to induce his debtor to largely increase the amount of his claim against his debtor without consideration, and then induce him to though the debtor voluntarily gave him the secure the same by new notes and mortgage, preference, as the evidence clearly shows he did do, renders both notes and mortgage absolutely void, especially as to the other creditors See, Kerr, Fraud and M., 195; Garth v. Cotton, 1 Dick., 217; Young v. Waud, 8 Exch., 234. his estate and effects, or the whole with a col"The assignment, by a man, of the whole of orable exception of part only, under such circumstances as necessarily to defeat or delay his creditors, is a fraud within the meaning of those laws, though there be no actual fraud.' Young v. Waud, 8 Exch., 230; Hooper v. Smith, 1 W. Bl., 441; Stanger v. Wilkins, 19 Beav., 626. Mr. Justice Swayne delivered the opinion of the court: of the Supreme Court of the Territory of This is an appeal in equity from the decree Utah. The bona fides of the original indebtedness several mortgages by which that indebtedness of Wright to Bernhisel, and the validity of the ness consisted, (1) Of a note of Wright to was secured, are not questioned. The indebted. Bernhisel for $2,450, dated March 26, 1866, and payable on or before the 26th of March, 1867, with interest at the rate of twenty-five per cent. per annum, and secured by a mort. gage upon a half lot therein described, situate in Salt Lake City. (2) Another note Wright to Pond & Co., for $951, dated May 9, 1866, payable six months after date, secured by a mortgage upon the same premises and transferred to Bernhisel, and (3) A note of Wright to Bernhisel dated May 26, 1866 for $950, payable with interest at the rate of of twenty-five per cent. per annum, on or before maturity down to the same period. Brewster the 26th of May, 1867, and secured by a mort- v. Wakefield, 22 How., 127, 18 L. ed. 303; gage upon the half lot covered by the preceding Young v. Godbe, 15 Wall., 562, 21 L. ed. 250. mortgages. "An Act Relative to Interest," of February It is insisted by Firman, the assignee, that 14, 1868, and the Act upon the same subject these several notes and mortgages were satis- of 1869, both passed by the Territorial Legisfied, and finally extinguished, by a transaction lature of Utah. The implication of the first which involved the giving of two subsequent Act was exactly the same as the affirmation of notes, secured by mortgage upon the same the second. The latter Act was, therefore, unpremises, and that the latter securities were necessary. U. S. v. Babbit, 1 Black, 61, 17 L all avoided by the 35th section of the Bank- ed. 96. Both these Acts fix the rate at ten per rupt Law. cent. where no rate has been agreed upon. What it was in such cases, prior to the taking effect of the first Act, we are not advised. These are the questions upon which the parties are at issue, and these the subjects to be examined. On the 1st of August, 1871, noth- *For the amount due upon the two [*177 ing had been paid on account of the two notes original notes to Bernhisel and upon the one of Wright to Bernhisel. Bernhisel took the to Pond, transferred to Bernhisel, the two note of Wright of that date for $4,440.81, pay- later notes, with the rate of interest stipulated able one year after date, with interest at the in them, and the mortgages securing them, rate of ten per cent. per annum. This note were, aside from the objection arising under was for the arrears of interest alleged to be the Bankrupt Law, unquestionably valid sedue. On the 26th of April, 1872, Bernhisel curities. Wearse v. Peirce, 24 Pick., 141; Abbe bought the note and mortgage of Wright to v. Newton, 19 Conn., 20; Rood v. Winslow, 2 Pond & Co., and paid for it $969.80. On the Doug. (Mich.), 68; Mackey v. Brownfield, 13 same day he and Wright computed the amount Serg. & R., 239; U. S. v. Bradley, 10 Pet., 343. due from Wright upon all these liabilities, In Pennsylvania, where there is a statute makand made it $9,621.74. For this sum Wright ing usury penal, but not declaring the contract gave Bernhisel two notes, both dated August void, a usurious bond and mortgage may be 1, 1871, and secured by a mortgage upon the enforced for the amount actually due. Wycoff same property as the three prior mortgages. v. Longhead, 2 Dall., 92; Turner v. Calvert, 12 One of the notes is for $4,219.81, payable on Serg. & R., 46. the first of June following, with interest from the first of May following, at the rate of twenty-five per cent. per annum, to be paid monthly until the note was paid. The other note was for $5,401.93, payable at the same time as the smaller note, and with interest after the same time specified in that note, at the rate of ten per cent. per annum, to be paid monthly until the payment of the principal. Upon each of the four original notes was written "Settled by new arrangement and notes April 26, 1872," and they were all surrendered to Wright. The several mortgages were also duly canceled of record by Bernhisel. It appears by the deposition of Bernhisel, that he was asked at what rate the interest, upon the several notes of Wright which he held, was computed in the settlement between them, when the notes and mortgages of the 26th of April, 1872, were given. His answer was, "The principal at twenty-five per cent. per annum, and the interest which had accrued up to the first of August, 1871, at the rate of ten per cent. per annum, to the date of the notes of April 26, 1872, there being no interest computed on the Pond & Co. note, in the settlement of 1872, the same being put in the at $969.80, just what I actually paid, which makes up the amounts of the two notes of April 26th, 1872." The bases of the calculation were wrong, and the result was the aggregate amount of the two notes of that date, which was a sum much too large. Bernhisel was then entitled: (1) To the face of the two original notes to him, with twenty-five per cent. interest upon each for one year, and the lawful rate of interest of the Territory where no rate is specified down to the date of the settlement; and, (2) To the face of the note to Pond & Co. with the like lawful rate of interest after its Within less than four months after the 26th of April, 1872, Wright was adjudged a bankrupt. Thereafter Firman, the appellee, was chosen the assignee of his estate. The mortgaged premises have been sold under an interlocutory decree, for $7,300. The proceeds of the sale await the result of this litigation. In order to bring a security for a debt within the provision of the Bankrupt Law, relied upon by the appellee, it is necessary that all the prescribed conditions should concur. If either element of the combination be wanting, there is no infringement of the law. Among them, and the cardinal one, is that the security should be given by the bankrupt within the time specified, "With the view of giving a preference to a creditor or person having a claim against him." Are the securities here in question liable to this objection? The facts must give the answer, and they are undisputed. The several securities upon which the notes and mortgage attacked were founded and for which the later ones were substituted, were given not only more than four months, but more than five years before the filing of the petition in bankruptcy. The later ones were for the same liabilities consolidated, and for nothing else. The mortgage was upon the same property as the prior mortgage, and none other. They were intended to be for the amount due upon the former securities. They were for too much, as we now adjudge the law of Utah to be. In the view of equity they are as if they had been taken for the proper amount. The excess is a nullity. It has no efficacy or validity for any purpose. The bankrupt's estate, to be administered by his assignee, is just what it would have been if the new notes and mortgage had never ex- [*178 isted. The rights of other creditors were in nowise affected by the substitution. The mortgaged premises, when sold, yielded a sum less |