process or notice; the judgment sought to be three months before that time, a man, claiming impeached and declared void was obtained by to be John W. Westmoreland, came to his house Monger on a spurious note, and an indorsement and said the object of his call was to ascertain thereof, forged by him or by some one for him whether they were related. He mentioned that and with his privity and consent, and sued out he had sold the note of Shirley to Monger. The in a time of civil war, when his adversary was witness had never seen him before, and never within the lines of the adverse belligerent, and saw him afterwards. The note disappeared in a situation in which he could receive no no- from the files of the court and could not be tice of the institution of the suit, or if by found. There is no proof of any consideration chance he did receive such notice, he could for giving the note, and none of its execution, make no defense to it whatever. It would be a as to time, place or circumstances. The testireproach to the jurisprudence of the country, if mony of John W. Westmoreland was not taken, it failed to provide a remedy in such a case. and there is no proof that a person of that There was no remedy at law, and if it exists at name was or had been in existence, except the all, it must be found in equity. testimony of the David Westmoreland before had a brother so named, who lived and died in mentioned, and his further testimony that he Missouri before the war. Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity from the Circuit Court of the United States for the Eastern District of Tennessee. Shirley was the complainant in the court below. His bill alleges that Monger instituted proceedings against him by attachment in the Circuit Court of Hamilton County, Tennessee, upon a promissory note purporting to be executed by Shirley to John W. Westmoreland, for the sum of $10,000, dated December 15, 1863, payable three months from date and indorsed by the payee to Monger; that a judgment was rendered against Shirley by default; that a large and valuable farm belonging to him was sold under the judgment and bought in by Monger; that Shirley was then absent from Tennessee and was ignorant of the proceedings; that the note and indorsement were forgeries, and that the whole proceeding, culminating in the sale of the farm, was a gross fraud upon Shirley, perpetrated by Monger. It is further alleged that Monger, in certain proceedings in confiscation in the District Court of the United States for the District of East Tennessee, had fraudulently acquired a title to the life estate of Shirley in the farm. The prayer of the bill is, that Monger's title may be annulled, that he may be compelled to account for the rents and profits of the property, and for general relief. Monger answered and denied all the material allegations of the bill. Testimony was taken upon both sides. The court below sustained the bill and decreed accordingly. Monger thereupon removed the case, by appeal, to this court. The power of a court of equity to annul judgments and decrees, and all titles acquired under them, for fraud, where the rights of bona fide purchasers have not intervened, is too well settled to require discussion. Freem. Judg., secs. 486, 489-491; 1 Story, Eq., sec. 252. The facts alleged by Monger are as follows: Shirley sympathized with the rebel cause, and early in the war removed to Georgia, within the insurgent lines. While he was there, a man, claiming to be John W. Westmoreland, came to Tennessee, passed through the lines of the Union Army, and offered to sell the note to Monger for its face in Confederate paper, which was then and there worth ten cents on the dollar. Monger bought the note, underdue, and paid for it accordingly. The deposition of David Westmoreland was taken in December, 1868. He testified that about According to Monger, the seller of the note came secretly and departed secretly. There is Monger. There is no trace of his residence or no proof that at that time he saw anyone but Presence anywhere, before or afterwards. The identifies the stranger who called on him, as deposition of David Westmoreland in nowise the person he assumed to be. The testimony is injurious to Monger. That person, whoever he was, was living in the fall of 1868, while this suit was pending, and more than four years after the alleged transfer of the note to Monger. He was willing to give Monger the benefit of whatever they were worth. his declarations to David Westmoreland for His disappear accounted for only upon the ground that he ance and subsequent non-appearance can be was afraid to put himself within the reach of the law by appearing as a witness. He swears Shirley's deposition was taken. positively that he never executed the note and that he never knew anyone of the name of the payee. Richey, a witness in his behalf, testifies that Campbell and Monger conspired together and The character of Richey for forged the note. truth is shown, by a host of witnesses, to be very bad. The character and testimony of Richey are destroyed by the witnesses called to impeach and contradict him. There is proof that, at the date of the note, Shirley was very ill, and if not then unable to execute a note, certainly gave none. The effect of this evidence is much weakened by the adverse depositions taken by Monger. We have, therefore, laid the testimony of all these witnesses out of view. There is no evidence of the slightest weight that the signature to the note was in Monger's handwriting. The whole superstructure of the case as regards the note rests upon the unsupported declarations of Monger. It is unnecessary to pursue the subject further. The facts of this branch of the case are as free from doubt and difficulty as is the law. They fill the largest measure of conviction in the mind, that the note was a forgery, that Westmoreland, if not a myth, was a party to the crime, and that he has wisely shrunk back and since remained in guilty concealment. But it is insisted that Monger has a valid title to the life estate of Shirley in the farm, derived from the confiscation proceedings, and that, therefore, the plaintiff's case must fail. The life estate was sold in those proceedings, and Monger bought it in for $700. Before the session of the demised premises, and had theresale was confirmed, Monger intervened and rep-in a stock of goods at the time they were adjuresented that before the libel of information dicated bankrupts. Their assignee went into was filed, he had attached the premises, and he possession of the said demised premises, and of insisted that his lien, thus acquired, was para- the stock of the bankrupts, and held and occumount, as well as prior, to that of the govern- pied the real estate until he had accomplished ment. The court decreed that the money he the sale of the chattels and property of the had paid, less the costs, should be refunded to bankrupts thereon. him, and that the Marshal should execute a deed conveying to him the life estate of Shirley. Both were accordingly done. The latter order was an extraordinary feature in the case. The proceedings in behalf of the United States were thus used to pass a title for which they received nothing, and it was conveyed to Monger, who paid nothing for it. If the attention of the court had been called to the error in the entry, it would doubtless have been corrected. Fay v. Wenzel, 62 Mass., 315. The same learned judge who made the order enjoined Monger in this case perpetually from asserting the title. This shows that he attached no importance to it. But conceding that the Marshal's deed did pass the legal title to the life estate, the an swer to the objection is, that under the circumstances, Monger must be held to have taken it, as he took his title, under the attachment proceedings in trust, ex maleficio, for Shirley, and subject to all his equities. It would be a reproach upon the administration of justice, if such a title, thus acquired, could avail to defeat the rights of the complainant, and give triumph to the iniquity which has been practiced upon him. The decree of the Circuit Court is affirmed. J. COOKE LONGSTRETH, Assignee in Bank- v. GEORGE PENNCCK, Executor of Abraham L. Pennock, Deceased, and David Sellers, Surviving Trustee of the Estate of Mary Lewis. (See S. C., 20 Wall., 575-577.) Landlord's lien, when attaches to property of bankrupt. A state statute, which provides that where property of a tenant is seized and sold under execution, for the rent due for a period not exceeding one year, shall be paid first out of the proceeds of the sale, applies to a seizure and sale by an assignee in bankruptcy, and he must pay such rent before distributing the proceeds to creditors. The rent accruing up to the issuing of the warrant in bankruptcy, having been paid to the landlord under a stipulation to restore the same if the assignee was not allowed credit therefor on the settlement of his account, this action is brought to test the right of the assignee in bankruptcy to get back what was so paid for rent accruing prior to the warrant, which was for much less than a year's rent. The circuit court, Justices Strong, McKennon and Cadwalader, all hearing the arguments and concurring in the conclusion, decided that the payment was rightfully made, and that the assignee could not recover it back. Whereupon the plaintiff sued out this writ. error: The priority claimed must rest upon the assumption that the goods passed to the assignee, subject to a lien for rent. That is the ground of decision in In re Wynne, 4 Nat. Bk. Reg., 5, where Ch. J. Chase says: "If a lien for rent existed, it was a lien to be discharged by the assignee and enforced in the United States Court of Bankruptcy. If it did not exist, it could not be brought into existence by any proceedings whatever." The lien must be a perfected lien as in Marshall v. Knox, 16 Wall., 551, 21 L. ed., 481, not one in posse merely, as In re Joslyn, 3 Nat. Bk. Reg., 118, in which Judge Drummond decided that where no distress warrant had been issued prior to the filing of the petition in bankruptcy, the landlord could have no priority or preference over the general creditors. The case In re Butler, C. C. U. S., West. Dist. of Pennsylvania, 6 Nat. Bk. Reg., 501, decided that in the absence of a distress for rent, the Bankrupt Act gives the landlord no lien or preference over the bankrupt's other creditors. The right of distress in Pennsylvania is the common law right. As respects good on demised premises, there is no prohibition against their removal. Grace v. Shively, 12 S. & R., 217. Chief Justice Tilghman states the law thus: "The tenant is not bound to give the notice to the landlord that he is about to remove his goods, nor is he under any obligation not to remove them. It is the landlord's business to be vigilant. He has a right to distrain whenever the rent has become due; and if he neglects it, he runs the risk of losing this extraordinary remedy with which the law has favored him." This would seem to be conclusive on the question of lien, for a lien cannot be devestible at the will of the debtor. Mr. Jos. B. Townsend, for defendants in error: The assumption, that there can be no priority of payment unless there is a lien, is fallacious. The goods and chattels being in or upon any messuage, lands or tenements, which are or shall be demised for life or years, or otherwise taken by virtue of an execution, and liable to the distress of the landlord, shall be liable for the payment of any sums of money due for rent at the time of taking such goods in execution; provided, that such rent shall not exceed one year's rent. Sec. 83, Act of June 16, 1836. After the sale by the officer, of any goods or chattels as aforesaid, he shall first pay the rent so due out of the proceeds of such sale. Sec. 84, Stat. of Pa. (supra). Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania. The assignee acquired his title to the movable property found on the demised premises, subject to the rights of all other persons. Gibson v. Warden, 14 Wall., 244, 20 L. ed. 797. The rent in question was for a period which terminated when the assignee took possession, and the entire period was within a year of that time. Before the commencement of the proceedings in bankruptcy, the defendants in error might have distrained; and it is agreed that the property upon the premises was more than sufficient to satisfy the demand. The 577*] Statute of Pennsylvania, of *June 16, 1836 (see 83 Purd. Dig., 1873, p. 879) provides that where property under such circumstances is seized and sold under execution, the rent due for a period not exceeding one year shall be paid first out of the proceeds of the sale. This case is within the equity of that statute. Sedg. Stat. Law, 296. The question presented is one belonging to the local law of Pennsylvania. We think it was correctly decided by the circuit court. The judgment is affirmed. WILLIAM BASEY et al., Appts., v. JOHN GALLAGHER et al. (See S. C., 20 Wall., 670-686.) Abandoned demurrer-law and chancery jurisdiction in Montana-in equity case, findings of jury not conclusive on court- water rights in Pacific Territories-law applicable to how shown-statutory regulation. 1. Where, in an equity case, a demurrer is filed to the complaint, and the record does not disclose what disposition was made of it, and an answer is subsequently filed, upon which the parties proceed to a hearing, it will be presumed on appeal that the demurrer was abandoned. 2. Although, by the organic Act of the Territory of Montana, common law and chancery jurisdiction is exercised by the same court and, by legislation of the Territory, the distinctions between the pleadings and modes of procedure in common law actions and those in equity suits are abolished, the essential distinction between law and equity is not changed. The relief which the law affords must be administered through the intervention of a jury, unless the jury be waived. The relief which equity affords must be applied by the court itself, and all information presented to guide its action, whether obtained through masters reports or findings of a jury, is merely advisory. 3. The provision in the Statute of Montana of 1867, regulating proceedings in civil cases, declaring "That an issue of fact shall be tried by a jury unless a jury trial is waived," does not require the *Headnotes by Mr. Justice FIELD. NOTE. Right of prior appropriation of watersee note, 30 L. R. A. 065. court in an equity case to regard the findings of a jury, called in the case, as conclusive, though no application to vacate the findings be made by the parties, if, in its judgment, they are not supported by the evidence. 4. In the Pacific States and Territories, a right to running waters on the public lands of the United States for purposes of irrigation, may be acquired by prior appropriation as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country and the necessities of obtains in the Territory of Montana, and is sancthe community, is entitled to protection. This rule tioned by its legislation. 5. By the Act of Congress of July 26, 1866, possession, rights to the use of water for mining. which provides "That, whenever, by priority of agricultural, manufacturing or other purposes have vested and accrued, and the same are recognized decisions of courts, the possessors and owners of and acknowledged by the local customs, laws and such vested rights shall be maintained and protected in the same,' the customary law, with respect to the use of water, which has grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. That law may be shown by evidence of the local customs, decisions of the courts. or by the legislation of the State or Territory or the The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case regulation, the latter, as of superior authority, will of conflict between a local custom and a statutory control. [No. 126.] Irwin v. Phillips, 5 Cal., 140; Bear Riv. Co. v. York Mining Co., 8 Cal., 332; Butte Can. Co. v. Vaughn, 11 Cal., 152; McDonald v. Bear Riv. Co. 13 Cal., 220; Phoenix Water Co. v. Fletcher, 23 Cal., 482; Hill v. Smith, 27 Cal., 476; Smith v. O'Hara, 43 Cal., 371; Lobdell v. Simpson, 2 Nev., 274; Ophir Mining Co. v. Carpenter, 4 Nev., 534; Hobart v. Ford, 6 Nev., 80; Dalton v. Bowker, 8 Nev., 201. If a usage exists recognizing the right to divert and appropriate water, the purpose for which the appropriation may be made is immaterial, provided it be useful or beneficial and not for speculation. Ortman v. Dixon, 13 Cal. 33; Davis v. Gale, 32 Cal., 26; Woolman v. Garringer, 1 Mont., 535. Has this right been recognized by the courts? The cases referred to show that it has been uniformly recognized and established in California and Nevada, and the courts of Montana have, on this subject, followed the decisions of the courts of those States. Caruthers v. Pemberton, 1 Mont., 111; Woolman v. Garringer, 1 Mont., 535; Thorp v. Woolman, 1 Mont., 171; Atchison v. Peterson, 1 Mont., 564. Mr. Justice Field delivered the opinion of the court: This was a suit for an injunction to restrain the defendants from diverting the water of a stream known as Avalanche Creek, in the Territory of Montana, to which the plaintiffs assert a right of prior appropriation for the purposes of irrigation. In their amended complaint, they allege that in the year 1866, they and their predecessors in interest took up for settlement and cultivation certain farms, designated by them as "ranches," on the public lands of the United States, near the creek in the County of Meagher in that Territory; and that they or their predecessors in interest, have ever 672*] since occupied and cultivated the same; that it was necessary to irrigate the land for its successful cultivation, and to raise grain, hay and vegetables; that they, accordingly, during that year and the following spring, constructed at great labor and expense, a ditch by which they intersected the creek a short distance from its junction with the Missouri River, and conveyed its water to their farm and used it for irrigation; that at this time the water was not appropriated by any person and was subject to appropriation by them; that by their ditch they appropriated the water to the extent of five hundred inches according to the measurement of miners; that this amount was necessary to the successful cultivation of the land, and by means of it they and their predecessors in interest were enabled to cultivate their farms and raise large and valuable crops of grain, hay and vegetables. They further allege that, subsequent to this appropriation by them and during the years 1867 and 1870 and the intervening period, the defendants erected dams across the creek above the head of their ditch, and diverted the water of the stream, and thereby wholly deprived them of its use and enjoyment, preventing the cultivation of their farms and rendering them useless; that had the water been permitted to flow unobstructed by the dams of the defendants, there would have been a sufficient supply for irrigating and cultivating the farms. They therefore seek the aid of the court, to restrain the defendants from diverting the water, except so much as may be in excess of the five hundred inches appropriated by them. water of the creek to the extent of thirty-five inches; that these parties, during one of those months, gave the plaintiffs and their predeces sors the right to connect with their ditch and to extend and enlarge the same; that the plaintiffs and their predecessors commenced such enlargement during those months, and increased the capacity of the ditch to two hundred and fifty inches; that White and Porvais afterwards, in 1867, sold their water right and ditch to the defendant, Stafford; that the defendant, Basey, had no interest in privity with the other defendants, and diverted the water for his own used by agreement with the plaintiffs, and that neither of the other defendants had diverted the water to the injury of the plaintiffs previous to the commencement of the action. Upon these special findings both parties moved the court for judgment; the defendants that the complaint be dismissed; the plaintiffs that a decree pass in their favor. On these motions the court heard the whole case, "on the pleadings, evidence and proceedings therein, and the findings of the jury," and rendered a decree adjudging that the defendant, Stafford, was entitled to thirty-five inches of the water, and that as against the defendants, saving this amount, the plaintiffs were entitled to two hundred and fifteen inches of the water, and decreed an injunction against any diversion of the water by the defendants, which would prevent its flow to this extent in the stream to the ditch of the plaintiff. In rendering this decree, the court disregarded a portion of the findings of the jury and adopted others and *this action was ap- [*674 proved by the Supreme Court of the Territory, and constitutes one of the errors assigned here for the reversal of its decree. By the Organic Act of the Territory, the district courts are invested with chancery and common law jurisdiction. The two jurisdictions are exercised by the same court, and, under the legislation of the Territory, the modes of procedure up to the trial or hearing are the same whether a legal or equitable remedy is sought. The suitor, whatever relief he may ask, is required to state "in ordinary and concise "language" the facts of his case upon [*680 which he invokes the judgment of the court. But the consideration which the court will give to the questions raised by the pleadings, when the case is called for trial or hearing, whether it will submit them to a jury, or pass upon them without any such intervention, must de To this complaint the defendants demurred on the grounds: 1, that the cause of action alleged was barred by the Statute of Limitations; and, 2, that the complaint did not state a cause of action. The record does not disclose what disposition was made of the demurrer, but as an answer was subsequently filed upon which the parties proceeded to a hearing, the pre-pend upon the jurisdiction which is to be exersumption is that it was abandoned. The answer filed denied the several allegations of the complaint, except the one which averred the possession by the plaintiffs of their farm. The record before us is a very defective one, and presents the case obscurely. Gathering, 673*] however, what we can from its imperfect statements, it would seem that at the May Term of the District Court of the Territory, in 1871, previous to the final hearing, which was had at the subsequent July Term, a jury was called in the case, to which certain questions were submitted and its answers taken. The jury found, substantially, that parties by the name of White and Porvais, prior to September or October, 1866, had appropriated the cised. If the remedy sought be a legal one, a jury is essential unless waived by the stipulation of the parties; but if the remedy sought be equitable, the court is not bound to call a jury, and if it does call one, it is only for the purpose of enlightening its conscience, and not to control its judgment. The decree which it must render upon the law and the facts must proceed from its own judgment respecting them, and not from the judgment of others. Sometimes in the same action both legal and equitable relief may be sought, as, for example, where damages are claimed for a past diversion of water, and an injunction prayed against its diversion in the future. Upon the question of damages, a jury would be required; but upon the propriety of an injunction, the action of the court alone could be invoked. The formal | ible with any extended diversion of the water distinctions in the pleadings and modes of pro- by one proprietor, and its conveyance for mincedure are abolished; but the essential distinc-ing purposes to points from which it could not tion between law and equity is not changed. be restored to the stream; that the government, The relief which the law affords must still be by its silent acquiescence, had assented to and administered through the intervention of a jury, encouraged the occupation of the public lands unless a jury be waived; the relief which equity for mining; and that he who first connected his affords must still be applied by the court it- labor with property thus situated and open to self, and all information presented to guide its general exploration, did in natural justice aeaction, whether obtained through masters' re- quire a better right to its use and enjoyment ports or findings of a jury, is merely advisory. than others who had not given such labor; Ordinarily, where there has been an examina- that the miners on the public lands throughout tion before a jury of a disputed fact, and a the Paoific States and Territories, by their cusspecial finding made, the court will follow it. toms, usages and regulations, had recognized But whether it does so or not must depend up- the inherent justice of this principle, and the on the question whether it is satisfied with the principle itself was at an early period recog verdict. This discretion to disregard the find- nized by legislation and enforced by the courts ings of the jury may undoubtedly be qualified in those States and Territories, and was finally by statute; but we do not find anything in the approved by the legislation of Congress in 1866. Statute of Montana, regulating proceedings in The views there expressed and the rulings made civil cases, which affects this discretion. That are equally applicable to the use of water on statute is substantially a copy of the Statute the public lands for the purpose of irrigation. of California as it existed in 1851, and it was No distinction is made in those States and 681*] frequently held by the Supreme Court Territories by the custom of miners or settlers, of that State, that the provision in that Act or by the courts, in the rights of the first aprequiring issues of fact to be tried by a jury, propriator from the use made of the water, unless a jury was waived by the parties, did if the use be a beneficial one. not require the court below to regard as conclusive the findings of a jury in an equity case, even though no application to vacate the findings was made by the parties, if in its judgment they were not supported by the evidence. That court only held that the findings, when not objected to in the court below, and the judge was satisfied with them, could not be ques tioned for the first time on appeal. Still v. Saunders, 8 Cal., 287; Goode v. Smith, 13 Cal., 81; Duff v. Fisher, 15 Cal., 376; see, also, Koppikus v. St. Cap. Comrs., 16 Cal., 248; and Webber v. Marshall, 19 Cal., 447. The question on the merits in this case 1s whether a right to running waters on the public lands of the United States, for purposes of irrigation, can be acquired by prior appropriation, as against parties not having the title of the government. Neither party has any title from the United States; no question as to the rights of riparian proprietors can, therefore, arise. It will be time enough to consider those rights when either of the parties has obtained the patent of the government. At present, both parties stand upon the same footing; neither can allege that the other is a trespasser against the government without at the same time invalidating his own claim. In the case of Tartar v. Spring Creek Water & Mining Co., 5 Cal., 397, decided in 1855, the Supreme Court of California said: "The current of decisions of this court go to establish that the policy of this State, as derived from her legislation, is to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner. In evidence of this, Acts have been passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches which were known to divert the water of streams from their natural channels for mining purposes. and others of like character. This policy has been extended equally to all pursuits, and no partiality for one over another has been evinced, except in the single case where the [*683 rights of the agriculturist are made to yield to those of the miner where gold is discovered in his land. The policy of the exception is obvious. Without it the entire gold region might have been inclosed in large tracts under the pretense of agriculture and grazing, and eventually what would have sufficed as a rich bounty to many thousands would be reduced to the proprietorship of a few. Aside from this the legislation and decisions have been uniform in awarding the right of peaceable enjoyment to the first occupant, either of the land or of anything incident to the land." Per Heydenfeldt, J., 5 Cal., 397. In the late case of Atchison v. Peterson, ante, 414, we had occasion to consider the respective rights of miners to running waters on the mineral lands of the public domain; and we there held that by the custom which had obtained among miners in the Pacific States and Territories, the party who first subjected the water Ever since that decision it has been held gen to use, or took the necessary steps for that pur- erally throughout the Pacific States and Terripose, was regarded, except as against the gov- tories that the right to water by prior approernment, as the source of title in all controver-priation for any beneficial purpose is entitled sies respecting it; that the doctrines of the com- to protection. Water is diverted to propel mamon law declaratory of the rights of riparian chinery in flour-mills and saw-mills, and to ir proprietors were inapplicable, or applicable rigate land for cultivation, as well as to enable only to a limited extent, to the necessities of miners to work their mining claims; and in all miners, and were inadequate to their protec- such cases the right of the first appropriator, 682*] tion; that the equality of right recog- exercised within reasonable limits, is respected nized by that law among all the proprietors up and enforced. We say within reasonable limon the same stream would have been incompatits, for this right to water, like the right by |