and duly notified to neutral powers, the same as in open and public war."

In Thorington v. Smith, 8 Wall., 10, 19 L. ed., 363, this court placed the Confederate Government among that class of governments de facto of which the temporary governments at Castine and Tampico were examples, and said speaking through Chief Justice Chase, that "To the extent of actual supremacy, however unlawfully gained, in all matters of government within its military lines the power of the insurgent government cannot be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government, upon the re-establishment of its authority. But it made obedience to its authority in civil and local matters not only a necessity, but a duty. Without such obedience, civil order was impossible." With these authorities before me, I should unhesitatingly have said-but for the fact that a majority of my associates differ from me, and the presumption is that they are right and I am wrong that it was impossible for any court to come to the conclusion that a government thus organized, having such immense resources and exercising actual supremacy over such vast territory and millions of people, did not possess the power to acquire and to transfer the title to personal property within its territorial limits.

Our Government in its efforts to reach the property of the extinct Confederacy has asserted a very different doctrine from that announced in the court below, and, so far as the cotton seized in this case is concerned, approved here. 473*] It has alleged in the courts of England that that Confederacy did acquire property to a vast amount and attempted to reach it in the hands of its agents. In U. S. v. McRae, 8 L. R. Eq. Cas., 69, it filed a bill in the Court of Chancery in England to obtain an account of all moneys and goods which came to the hands of the defendant, as agent or otherwise, on behalf of the Confederate Government during the insurrection, and the payment of the moneys which on taking such account, might be in his hands, and a delivery over of the goods in his possession. The bill alleged that the Confederate Government possessed itself of divers moneys, goods, and treasure, part of the public property of the United States, and that other moneys and goods were from time to time paid and contributed to it by divers persons, inhabitants of the United States, or were seized and acquired by that Government in the exercise of its usurped

the United States, and which were seized by the rebels, still continued the moneys, goods and treasure of the United States, their rights of property and rights of possession being in nowise devested or defeated by the wrongful seizure. But that, with respect to property which had been voluntarily contributed to or acquired by the insurrectionary government, and impressed in its hands with the character of public property, the right of the United States [*474 was that of a successor of the Confederate Government; and that they could recover such property from an agent of that Government, but subject, however, to the same rights and obligations, to which that Government would have been subjected, had it not been overthrown.

In the case of U. S. v. Prioleau, 2 Hem. & Mill. Ch. Cas., 559, the same court again held that the Government of the United States could recover the property of the Confederate Government, as its successor or representative in the hands of its agents, but that they must take it subject to all the liens and conditions arising from the contract upon which the property was received by the agents. Neither the United States, in the prosecution of these suits, nor the courts of England in deciding them, expressed the slightest doubt that the title to the property, not originally owned by the United States, had been acquired by the Confederate Government, which was in the hands of its agents. And I submit, that a response by those courts to the claim of the United States, that the insurgent government, being illegal in its origin and continuance, could neither take, hold nor transfer title to personal property, would not have been acquiesced in, nor deemed respectful by our Government. And I submit, respectfully that the earnest denunciation of the wickedness of the rebellion, contained in the opinion of the majority, is no legal answer to the demand if the claimant for the proceeds of his property seized and sold by our Government, when that Government long since pardoned the only offense of which that claimant was guilty, and thus gave him the assurance that he should stand in the courts of his country in as good plight and condition as any citizen, who had never sinned against its authority.

I am, therefore, of opinion that the judgment of the Court of Claims should be reversed.

persons in England large amounts of money o be laid out in purchasing goods for its use, and had sent there large quantities of goods to be sold: that it had thus sent large sums of money and large quantities of goods to the defendant, and that on the dissolution of that

Miller, Plffs. in Err.,

บ.

SARAH M. GRISWOLD.

(See S. C., 20 Wall., 486-488.)

-form of.

1. Under the Civil Practice Act of Montana, in an action to recover personal property, there can be no judgment for the value if there can be a delivery of the property; but a judgment is not necessarily erroneous if the alternative is not expressed upon its face.

2. The court must be satisfied that the delivery cannot be made, before it can adjudge absolutely the payment of money. But, if so satisfied, it may

Suit was brought in the District Court of Montana, in Lewis and Clarke County, by the defendant in error, to recover certain personal property. Judgment having been given for the plaintiff and affirmed upon appeal by the Supreme Court of the Territory, the defendants sued out this writ of error.

The case is sufficiently stated by the court. Messrs. J. Hubley Ashton and N. Wilson, for plaintiffs in error:

The provision of the Montana Practice Act appears to be identical with section 277 of the New York Code, which prescribes the form of judgment to be taken in actions to recover the possession of personal property.

The Court of Appeals of New York has decided that neither a plaintiff nor a defendant, in an action to recover the possession of personal property, can take judgment for the value of property, except as an alternative; and if a judgment is taken for the value, alone, and no alternative judgment is entered for the return of the property, it will be erroneous; and for this error the judgment for the value will be reversed by an appellate court.

Dwight v. Enos, 5 N. Y., 472; Fitzhugh v. Wilman, 9 N. Y., 563.

Messrs. Robert Leech, W. F. Sanders and G. G. Symes, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

All errors assigned on this record were abandoned at the argument except the first, which relates to the form of the judgment. The action was for the recovery of the possession of personal property. The Civil Practice Act of Montana provides that the judgment in such an action may be for the possession of the property, or the value thereof, in case a delivery cannot be had, and damages for the detention.

The judgment as entered recites a verdict in favor of une plaintiff for $3,800 damages, and the recovery was in accordance therewith. The claim now is that a judgment for the value is erroneous, except as an alternative upon the non-delivery of the property. It is true that there can be no judgment for the value if there can be a delivery of the property; but it is not true that a judgment is necessarily erroneous if the alternative is not expressed upon its face. The court must be satisfied that the delivery cannot be made before it can adjudge absolutely the payment of money. But, if so satisfied, it may so adjudge. A special finding to that effect is not necessary. An absolute judg ment for the money is equivalent to such a finding.

In one part of this record it appears that the verdict was for the return of the property, or, in case that could not be made, for $3,000, the value, and $800 damages for the detention. The judgment was for the money, and the presump488*] tion *is, in the absence of anything in the record to the contrary, that before it was rendered the court had become judicially satisfied that the property could not be returned. In

a court of error every presumption is in favor of the validity of the judgment brought under consideration. Error must appear affirmatively before there can be a reversal.

The judgment of the Supreme Court is af. firmed.

CHARLES T. POLLARD, Plff. in Err.,

v.

JOHN F. BAILEY, Assignee in Bankruptcy of Fowler & Sommerville.

(See S. C., 20 Wall., 520-527.) Stockholder, liability of, for debts of corporation -form of remedy.

1. Where each stockholder of a bank is bound for the debts in proportion to his stock, his liability is not limited to the par value of his stock, neither is he bound absolutely for the payment of the full amount of that.

2. Where the provision for the liability is coupled with a provision for a special remedy, that remedy, and that alone, must be employed.

3. In such case, a creditor of the bank cannot sue a stockholder at law, to recover the whole amount of his stock and apply it to his debt.

[No. 46.]

Argued Oct. 30, 1874. Decided Nov. 9, 1874. N ERROR to the District Court of the Unit

defendant in error, as a holder of certain bills Suit was brought in the court below by the upon an insolvent bank, to recover their par value from the defendant as a stockholder of the bank.

The facts agreed to between the parties show that Bailey the plaintiff in the court below, produced bills of the Central Bank of the State of Alabama, for the amount described in the verdict. That this bank became insolvent in 1865, and ceased to do business in 1869 and previously thereto; that C. T. Pollard is an owner of two hundred shares of stock, of the par value of $20,000; that the plaintiff demanded payment of these bills of him; that the capital stock subscribed for by individuals was $900,000 of the $1,000,000 mentioned in the charter, and that the issues of the bills of the bank are $700,000 unpaid.

Upon these facts on a clause in the charter of the bank, "That the State and individual stockholders, or any copartnership or body politic having shares in said bank, shall be bound respectively for all the debts of the bank in proportion to their stock holden therein," the plaintiff claims a judgment for his entire de mand in a suit at law against Pollard.

This was allowed by the court in the charge to the jury.

Judgment having been given for the plaintiff accordingly, the defendant sued out this writ of error.

Messrs. John A. Campbell, R. T. Merrick and G. W. Goldthwaite, for plaintiff in error: The error in this decision arises from a misapplication of the clause of the charter referred to, to the facts.

We agree that the clause creates a liability if taken alone or in connection with others; that this liability is a separate, distinct liability; that this liability is for a certain proportion of the debts.

NOTE.-Individual liability of stockholders for corporate debts-see note, 25 L. ed. U. S. 8S5.

the person whose heirs the complainants are admitted to be; held, not established.

2. There is great doubt whether the identity of a man can be established by proving that a paper, whose origin is disputed, looks like one which he is proved to have signed.

3. Evidence by comparison of handwritings is very unreliable.

[No. 14.]

Argued Oct. 15, 1874. Decided Nov. 16, 1874. PPEAL from the Circuit Court of the UnitAed States for the District of California.

The case is fully stated by the court. Messrs. Henry Beard, B. S. Brooks, N. P. Chipman, W. W. Chapman and C. T. Botts, for appellants.

Messrs. J. B. Harmon, E. Janin, E. L. Goold and J. P. Hoge, for appellees.

Mr. Justice Hunt delivered the opinion of the court:

The appellants are the children of John Hardy. They allege that to their ancestor; under the assumed name of Thomas M. Hardy, the Mexican Government issued a grant, October 23, 1843, for the premises in controversy; that the appellees, purchasers under a void sale of Hardy's interest, procured the commission under the Act of the 3d of March, 1851, to confirm to them the lands so granted as aforesaid to Hardy. The bill prays that the appellees may be compelled to convey to the appellants.

A demurrer to the bill was interposed upon the ground that the defendants were innocent purchasers, having no knowledge of the fraudulent character of the administrator's sale under which the confirmees purchased. The Associate Justice of the Supreme Court, who heard and decided the demurrer, overruled it, on the ground that, under the allegations of the bill, the sale at which the appellees purchased was absolutely void.

The demurrer having been overruled, an answer was put in which denies that the complainants (the appellants here) are the legal representatives of the Hardy to whom the grant was made; denies the alleged frauds; denies all knowledge or notice on the part of the defendants of such frauds, if they were committed, and all knowledge or notice of the invalidity of the proceedings in the Probate Court, under whose order of sale they became purchasers.

This answer raised issues of fact and of law; of fact, as to the identification of the Hardy to whom the grant was made, with the Hardy whose heirs the complainants are admitted to be; of law, whether purchasers at a sale made by a court having no jurisdiction of the person or subject-matter, can shield themselves under a plea of purchase in good faith, without notice of the invalidity of the decree under which the sale was made.

The district judge, sitting as a circuit judge, entered a decree dismissing the bill, upon the ground that the defendants were purchasers of parties holding the legal title; that is, the patent of the United States; and that they had no notice of the invalidity of the title of their vendors, upon which the confirmation was made.

From this decree the complainants appeal to this court.

The points of law raised are.

First. That the complainants (children of John Hardy), at the date of the death of Hardy, in California, in 1848, were aliens and incapable

of taking his real property by descent; and this both by the common law and the Mexican law.

Second. That the defendants are innocent bona fide purchasers for value without notice from the patentees and are, therefore, protected in their possession. Upon this point the district judge sitting as circuit judge, held with the defendants and dismissed the bill.

The question of fact is the identity of the two Hardys described in the evidence, or rather the union of the names of John Hardy and Thomas M. Hardy in one man, and that one man, John Hardy, the father of the complainants. The question of fact lies at the bottom of the If it should be held that aliens may incase. herit, that would be of no influence should it be decided that the complainants are not the children of the man who called himself Thomas M. Hardy.

Should it be held that the defendarts are in

nocent purchasers without notice, or that if such, that fact does not constitute a defense to the action, we should make no step towards a conclusion, unless we also decided that the complainants were the children of the man entitled to the grant.

If it is found that the complainants are such children, the other questions arise. If it is found that they are not, the case is ended. In any aspect the question of identity arises and must be decided, and it is manifest from the suggestions already made, that it is the point that should be first determined. We proceed to its consideration.

A person describing himself as Thomas M. Hardy died in California in 1848, having received a land grant as a soldier in the Mexican service.

The children of John Hardy, of Canada, undertake to show that this person was their father.

John Hardy was a mechanic, born in the year 1801, who left Canada in the year 1831 and never returned. His wife had died not long before, leaving three young children, of whom the plaintiffs are survivors.

In seeking a solution of the question before us, the inquiries at once present themselves: Why did he leave Canada? Was there any reason for changing his name?

He left Canada, in the language of the old tales, to seek his fortune. His wife, the daughter of a respectable clergyman, had died. Although not in want or destitution, he was not as successful in business as he wished to be. The disposition of her property by his mother did not please him. He had sought to interfere with it more officiously than pleased the mother, and she had given it to her other children, omitting to give him any portion. It was rumored also, that he desired to marry a sister of his deceased wife, and that his offers in this respect were declined. These, we believe, are the only reasons for his leaving Canada.

These circumstances furnish the answer to the other inquiry suggested, and show that no reason existed for a change of name. He had committed no crime which compelled him to conceal his departure. There was no case of affection betrayed, of which he desired to escape the consequences. He left openly, without concealment, with the knowledge of his friends, and with no attendance of crime, disgrace or