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l as to it, such a mortgage is void, andar to this, uses this language: "It (the mortthat possession in the mortgagor is a badge gage) is certainly invalid as to the after_acquired property," citing cases in New York and Wisconsin.

of fraud.

The cases of Briggs v. Parkman, 2 Met., 258; Jones v. Huggeford, 3 Met., 515; Barnard v. Eaton, 2 Cush., 294; Codman v. Freeman, 3 Cush., 306, are leading cases.

Briggs v. Parkman is very much in point here. It was a mortgage to secure payment thereof, of the principal part of the said Loring's stock in trade in Boston, he to continue in possession, and make sale of said mortgaged stock in the ordinary course of business and apply the proceeds to his own use.

. Justice Wilde, said:

"Such a possession is only a badge or presumptive evidence of fraud. On this question there have been many conflicting decisions in other courts, but the question is now settled in the State of New York, in conformity with the doctrine held in this Commonwealth, and such appears to be the doctrine as now held in England."

Bissell v. Hopkins, 3 Cow., 166; Seward v. Jackson, 8 Cow., 406; Kid v. Rawlinson, 2 Bos. & P., 59; Martindale v. Booth, 3 B. & Adol., 498; Hinde v. Longworth, 11 Wheat., 199; Arundell v. Phipps, 10 Ves., 140; Latimer v. Batson, 4 Barn. & C., 652.

In Massachusetts, we find that Jones v. Richardson, 10 Met., 481, furnishes a clear exposition of the law on this subject.

Wilde, J., speaks as follows: "That a person cannot grant or mortgage property of which he is not possessed, and to which he has no title, is a maxim of the law too plain to need illustration, and which is fully supported by all the authorities." The court then proceeds to overrule Mitchell v. Winslow, 2 Story, 630; Macomber v. Parker, 14 Pick., 497, and Abbott v. Goodwin, 20 Me., 408, the identical cases relied on by the appellants in this appeal. Rice v. Stone, 1 Allen, 569; Jones v. Richardson, 10 Met., 481; Mody v. Wright, 13 Met., 17; Codman v. Freeman, 3 Cush., 309; Otis v. Sill, 8 Barb., 102; Edgell v. Hart, 9 N. Y., 213; Gardener v. McEwen, 19 N. Y. 123; Milliman v. Neher, 20 Barb., 38.

The later cases in Maine support the same doctrine. Abbott v. Goodwin, 20 Me., 408, cited by appellants, has been expressly overruled in that State by the more recent cases. The court, in Sheldon v. Conner, 48 Me., 589, in referring to Abbott v. Goodwin, used this In the case of Bissell v. Hopkins it was set-language: "The soundness of this decision tled, after an examination of the principal has been questioned and the case may be authorities, that the possession of goods re- deemed to have been overruled by Head v. maining in the vendor after sale, was only Goodwin, 37 Me., 181, and Chapin v. Cram, 40 presumptive evidence of fraud, which might Me., 561." be explained by other evidence.

"The general rule, undoubtedly, is that a Messrs. William E. Niblack, J. M. Shack-person cannot grant or mortgage property of elford, Azro Dyer, George Palmer and R. D. which he is not possessed and to which he had Richardson, for appellee: no title."

The general doctrine is, that the mortgage is void as to after acquired property, except where the mortgagor has a present actual interest in it or concerning it. There must be something in præsenti of which the thing in futuro is to be the product, or with which it is to be connected, as necessary for its use or as an incident to it, constituting a tangible existing basis for the contract. The future property must be an accretion to the property already owned by the mortgagor, either by adding the future to the present or by growth. This idea of accretion runs through all the cases. It is contemplated all the time, that the present property is to be retained, and that the future property is not to be substituted, but merely added; thus, one may sell all the wool which shall grow for a term of years on sheep owned by him at the time, but not the wool to be grown on so many sheep, if he does not own them.

Grantham v. Hawley, Hob., 132.

No Indiana authority is in conflict with this rule.

So far from deriving any comfort from Chissom v. Hawkins, appellants will, on a careful examination, find that case in direct conflict with their theory of the law.

In Coe v. McBrown, 22 Ind., 252, the facts were these. Coe held a trust deed or mortgage on the railway from Jeffersonville to Indianapolis, owned by the Jeffersonville Railroad Company, with the superstructure, rails and

other materials used thereon.

Com. Dig., Grant, D; Jones v. Richardson, 10 Met., 481.

Morrill v. Noyes, 56 Me., 458, is a case of marked ability. We respectfully ask the attention of the court to this authority, as furnishing an able discussion of this important question.

The court of Appeals of Kentucky does not appear to have expressly decided the question, but in Wilson v. Seibert, 8 Am. Law Reg., N. S., 608, the subject is examined and settled by the Louisville Chancery Court. After a thorough consideration of a large number of authorities in the United States and England, Woolley, Chancellor in an opinion of unusual clearness and vigor, holds the mortgage void as to after acquired property, except when it has the nature of an accretion or growth.

In Wisconsin, there has been an unbroken line of decisions, establishing the rule that a mortgage of after acquired chattels is void.

Chynoweth v. Tenney, 10 Wis., 397, a masterly case, declares that a chattel mortgage is inoperative to pass any title, either legal or equitable, to any specific property, to be acquired by the grantor after the execution and delivery of the instrument.

A similar doctrine prevails in Ohio. “A chattel mortgage purporting to create a lien on stock in a grocery, and also on such as should be subsequently acquired by the mortgagor, creates no lien on the subsequently acquired property."

Chapman v. Weimer, 4 Ohio St., 481. In the District Court of the United States Coe v. Col. P. & Ind. R. Co., 10 Ohio St.. 372, for Wisconsin (In re Kahley, 2 Biss., 383), approves and follows Chapman v. Weimar, citJudge Hopkins, in discussing a mortgage simi-ing Congreve v. Evetts, 10 Exch., 298.

We submit that, although the question may, goods, furniture and fixtures. The mortgage, appear to some extent an open one in Indiana, after reciting the liability of the firm to the the judicial mind of the nation has ascertained and fixed the rule that after acquired chattels are not subject to lien by way of mortgage. Appendix of State Authorities.

New York:

Divver v. McLaughlin, 2 Wend., 596; Wood r. Lowry, 17 Wend., 492; Griswold v. Sheldon, 4 N. Y., 581; Edgell v. Hart, 13 Barb., 380, on appeal, 9 N. Y.. 213; Delaware v. Ensign, 21 Barb., 85; Gardner v. McEwen, 19 N. Y., 123; Ford v. Williams, 24 N. Y., 359; Conkling v. Shelley, 28 N. Y., 360; Miller v. Lockwood, 32 N. Y., 293; Russell v. Winne, 37 N. Y., 591; Mittnacht v. Kelly, 3 Abb. App., Dec., 301; 3 Keyes, 407; Yates v. Olmstead, 65 Barb., 43.

These last two cases are the latest New York decisions we have seen, and are expressly in point.

Massachusetts:

appellant, Robinson, on the notes indorsed by him, seven in number, all maturing between the 25th of July and the 6th of October of the same year, states that it is contemplated that in order to take up said several notes or some of them, it may become necessary to renew the same or discount other notes, to enable the said mortgagors to take up said notes, or raise money therefor. The recital of the indebtedness to the appellant, Mrs. Sloan, by note at four months with interest, is also made, with the statement that, if not convenient to pay it at maturity, it may be renewed from time to time as the parties may agree.

After these recitals and a mutual understanding of the parties, concerning the continuance of the indebtedness, the property is conveyed upon the express agreement that until default be made in the payment of some one of said notes, or some paper in renewal thereof, the mortgagors may remain in possession of 3|the goods and sell them as heretofore, and supply their places with other goods, and the goods substituted by purchase for those sold shall, upon being put into the store now occu

v.

Harris v. Sumner, 2 Pick., 133; Platt
Brown, 16 Pick., 553; Robbins v. Parker.
Met., 117; Crowninshield v. Kittridge, 7 Met.,
520; Kimball v. Thompson, 4 Cush., 446.
New Hampshire:

Putnam v. Osgood, 51 N. H., 192, 52 N. H., pied by them, or any other in Evansville in

148. Ohio:

Collins v. Myers, 16 Ohio, 547; Freeman v. Rawson, 5 Ohio St., 1; Harman v. Abbey, 7 Ohio St., 218.

These Ohio cases have been recognized as sound in Indiana.

New Alb. Ins. Co. v. Wilcoxson, 21 Ind., 355.
In Tennessee:

Tennessee Bank v. Ebbert, 6 Am. L. T., 72; and in the Federal Courts.

Re Manley, 2 Bond, 261; and Re Kahley, 2 Biss., 383.

Wisconsin:

Place v. Langworthy, 13 Wis. 629.
Illinois:

Davis v. Ransom, 18 Ill., 396; Read v. Wil son, 22 Ill., 377; Barnet v. Fergus, 51 Ill., 352. Georgia:

Nichols v. Hampton, 46 Ga., 253.

Mr. Justice Davis delivered the opinion of the court:

This is an appeal from a decree of the Circuit Court for the District of Indiana, dismissing a bill in chancery filed by the appel

lants:

The bill makes substantially this case: John T. and Seth A. Coolidge were partners in the retail dry goods trade in Evansville, Indiana, from 1863 to the 7th of August, 1873, when one of the partners died. During the greater part of this time Andrew L. Robinson, one of the complainants, was the accommodation indorser for the firm to the first National Bank of Evansville, from whom they obtained loans of money at different times as their convenience required, and Julia R. Sloan, the other complainant, also loaned them money as they needed it. The money thus borrowed was put into the business of the firm, and became part of their capital stock.

The indebtedness to the bank on the 7th of July, 1871, was $7,600, and to Mrs. Sloan $3,174. On this day the partners executed a mortgage to the appellants, on their store of

which they may be put for sale, be subject to the lien of the mortgage. The instrument then concludes with separate powers to the mortgagees, on default in payment of their respective claims, to seize and sell sufficient goods to satisfy the same. It is averred in the bill that all the debts owing by the firm at the date of the mortgage, other than those secured by it, have been paid, except $3,500 due Alfred Cooley for borrowed money.

The mortgagors remained in possession of the property, and bought and sold as they had been accustomed to do, from the 7th of July, 1871, to August 7, 1873, when Seth A. Coolidge died. During this interval of twenty-five months, the interest and less than $100 of the principal of Mrs. Sloan's debt was paid, and the interest and about one third of the principal of the bank debt. The note of Mrs. Sloan's was not renewed, but was past due about twenty-one months. Robinson continued to indorse for the firm. Immediately after the death of Seth A. Coolidge the property of the firm, consisting of the old stock, goods subsequently purchased, and debts due the firm, was inventoried and appraised, and found to be very little in excess of the debts owing by the firm. This inventory and appraisement was completed on September 15, and the following day the appellants seized the goods, but were prevented from selling them on account of proceedings in bankruptcy having been menced against the surviving partner, who was adjudged a bankrupt on the 4th day of October.

com

On the 15th of November the defendant was appointed assignee, and demanded the goods from the appellants, who refused to deliver them.

The bill concludes with a prayer that an account may be taken of what is due the appellants, and for a sale of the goods.

The circuit court sustained a demurrer to the bill, and rendered a decree dismissing it, which are the errors complained of.

There are few subjects which have been

more discussed in the courts of this country, twenty-two sections. The 10th relates to the regwith less uniformity of decision than that of istration of chattel mortgages; the 17th enacts sales and mortgages of personal goods, without that every assignment, etc., of any estate in delivery of possession. In Indiana the Statute | lands, or of goods, made with intent to hinder. of 13th Elizabeth has been adopted, and two delay or defraud creditors, shall be void; and provisions applicable to this case engrafted on the 21st declares that the question of fraudulent it. The first declares that "No assignment of intent, in all cases arising under the provisions goods by way of mortgage shall be valid of this Act, shall be deemed a question of fact. against any other person than the parties It will thus be seen that the last section applies thereto, when such goods are not delivered to to conveyances of land as well as to assignthe mortgagee, or assignee, and retained by ments of goods by way of mortgage. In Jenhim, unless such assignment or mortgage" ners v. Doe, 9 Ind., 461, the question was shall be duly recorded. And the second says, whether a deed of trust on certain lands was "That the question of fraudulent intent in all void as to creditors who did not consent to it. cases shall be deemed a question of fact." The court of original jurisdiction held the Prior to the incorporation of these provisions deed void upon its face as a question of law. in the statute it was necessary to the validity It was contended that this ruling was erro521*] of chattel mortgages in *Indiana that neous, and that in all cases the instrument there should be a manual delivery of the mort- must be referred to the jury in connection with gaged property to the mortgagee who should the facts. But the Supreme Court held the ruling continue to hold the same in his possession. to be correct. They say that the provisions emThese provisions changed the law in this par- braced in the 17th and 21st sections of the ticular, and permitted the retention of the pos- statute have declared, not changed, the law session of personal property by the mortgagor on the subject; that the court must, in the in a chattel mortgage given as a security for first instance, determine upon the legal effect the payment of debts. And there can be no of a written instrument, and if that be to dequestion that in Indiana a mortgage, which lay creditors it is rejected. If, however, on simply allows the mortgagor to retain the its face it conforms to the law, it is received possession and use of the property until breach in evidence, and the question of the intent with of the condition is, when duly recorded, prima which it was executed is an open one for the facie valid. But it is insisted that the effect jury. It would seem to be the view of the of these provisions is also to make a mortgage court in this case, as well as in the preceding of a stock of goods, containing a provision au- one in the same volume, of Nutter v. Harris, thorizing the mortgagor to retain possession that the 21st section applies to cases of actual for the purpose of selling in the usual course or meditated and intentional fraud, and is not of trade, prima facie valid, and that the court applicable to written instruments which the cannot, as a matter of law, pronounce it fraud-law adjudges to be fraudulent on their face ulent. This, we think, is going beyond what and, consequently, void. the Legislature intended. If registration was intended, as we think it was, as a substitute for delivery of possession, it was not meant to be a protection for all the other stipulations contained in a mortgage. If so, it could be used as a cover for any fraudulent transaction, which would have to be treated, on the theory advanced, as valid, until the contrary was shown.

It is true the law conferred on the parties the right to agree that the possession of the property could remain with the mortgagor, provided the mortgage be recorded; but if the mortgage contains other provisions, which, on legal principles, vitiate the whole instrument, it is difficult to see how recording it could make it even prima facie valid. The Bill of Sales Registration Act in England makes void all bills of sale not filed as required, if unaccompanied by possession. An eminent writer in speaking of this Act says: "Of course the mere fact of due registration of a bill of sale, under this Act, does not necessarily make it good against creditors. The Act was not passed with a view of making good a title which was not good before, but for the protection of creditors." May, Fraud. Conv., p. 120. And to the same effect is Wood v. Lowry, 17 Wend., 495, 496.

522*] *It is argued, however, that there can be no such thing in this class of cases as constructive fraud, because under the statute the question of fraudulent intent is one of fact. But the Supreme Court of Indiana has decided the question differently. The statute of that State for the prevention of frauds embraces

There is, therefore, nothing in the way of the consideration of the main question [*523 involved in this controversy on its merits.

If chattel mortgages were formerly, in most of the States, treated as invalid unless actual possession was surrendered to the mortgagee, it is not so now, for modern legislation has, as a general thing (the cases to the contrary being exceptional), conceded the right to the mortgagor to retain possession, if the transaction is on good consideration and bona fide. This concession is in obedience to the wants of trade, which deem it beneficial to the community that the owners of personal property should be able to make bona fide mortgages of it, to secure creditors, without any actual change of possession.

But the creditor must take care in making his contract that it does not contain provisions of no advantage to him, but which benefit the debtor, and were designed to do so, and are injurious to other creditors. The law will not sanction a proceeding of this kind. It will not allow the creditor to make use of his debt for any other purpose than his own indemnity. If he goes beyond this, and puts into the contract stipulations which have the effect to shield the property of his debtor, so that creditors are delayed in the collection of their debts, a court of equity will not lend its aid to enforce the contract. These principles are not disputed, but the courts of the country are not agreed in their application to mortgages, with somewhat analogous provisions to the one under consideration. The cases cannot be reconciled, by any process of reasoning, or on

plish such objects is, to say the least of it, constructively fraudulent.

In truth, the mortgage, if it can be so called, is but an expression of confidence, for there can be no real security where there is no certain lien.

any principle of law. As the question has never before been presented to this court, we are at liberty to adopt that rule on the sub- Manifestly it was executed to enable the ject which seems to us the safest and wisest. mortgagors to continue their business and apIt is not difficult to see that the mere retention pear to the world as the absolute owners of and use of personal property until default is the goods, and enjoy all the advantages resultaltogether a different thing from the retentioning therefrom. It is idle to say that a resort of possession accompanied with a power to to the record would have shown the existence dispose of it for the benefit of the mortgagor of the mortgage, for men get credit by what alone. The former is permitted by the laws they apparently own and possess, and this ownof Indiana, is consistent with the idea of se-ership and possession had existed without incurity, and may be for the accommodation of terruption for ten years. There was nothing the mortgagee; but the latter is inconsistent to put creditors on their guard. On the con524*] with the nature and character of a trary, this long continued possession and apmortgage, is no protection to the mortgagee, parent ownership were well calculated to and of itself furnishes a pretty effectual shield create confidence and disarm suspicion. But to a dishonest debtor. We are not prepared to apart from this, security was not the leading say that a mortgage under the Indiana Statute object. If so, why does Mrs. Sloan's note rewould not be sustained which allows a stock main overdue for twenty-one months, and why of goods to be retained by the mortgagor, and does Robinson continue to indorse? This consold by him at retail for the express purpose duct is the result of trust and confidence, of applying the proceeds to the payment of the which as Lord Coke tells us, are ever found to mortgage debt. Indeed, it would seem that constitute the apparel and cover of fraud. such an arrangement, if honestly carried out, would be for the mutual advantage of the mortgagee and the unpreferred creditors. But there are features engrafted on this mortgage which are not only to the prejudice of cred- Whatever may have been the motive which itors, but which show that other considerations actuated the parties to this instrument, it is than the security of the mortgagees, or their manifest that the necessary result of what they accommodation even, entered into the contract. did do was to allow the mortgagors, under Both the possession and right of disposition cover of the mortgage, to sell the goods as their remain with the mortgagors. They are to deal own, and appropriate the proceeds to their with the property as their own, sell it at re- own purposes; and this, too, for an indefinite tail, and use the money thus obtained to re- length of time. A mortgage which, in its plenish their stock. There is no covenant to very terms, contemplates such results, besides account with the mortgagees, nor any recog- *being no security to the mortgagees [*526 nition that the property is sold for their ben- operates in the most effectual manner to ward efit. Instead of the mortgage being directed off other creditors; and where the instrument solely to the bona fide security of the debts on its face shows that the legal effect of it is then existing, and their payment at maturity, to delay creditors, the law imputes to it a it is based on the idea that they may be in- fraudulent purpose. The views we have taken definitely prolonged. As long as the bank of this case harmonize with the English compaper could be renewed, Robinson consented mon law doctrine, and are sustained by a numto be bound, and in Mrs. Sloan's case it was ber of American decisions. In the American not expected that the debt would be paid at editor's note to Twyne's case; Smith, L. Cas., maturity, but that it would be renewed from p. 52, n, 7th Am. ed., most of the cases in time to time, as the parties might agree. It this country on the subject are collected and is very clear that the instrument was executed classified. See also Mittnacht V. Kelly, 3 on the theory that the business could be car- Keyes, 407; Yates v. Olmsted, 65 Barb., 43: ried on as formerly by the continued indorse- Barnet v. Fergus, 51 Ill., 352; In re Manly, 2 ment of Robinson, and that Mrs. Sloan was Bond, 261; In re Kahley, 2 Biss., 383. indifferent about prompt payment. The cor- It is contended by the appellants that the rectness of this theory is proved by the subsequent conduct of the parties, for the mortgagees remained in possession of the property, and bought and sold and traded in the manner of retail dry goods merchants, from July 7, 1871, to August 7, 1873. During this period of twenty-five months Robinson indorsed as usual, and Mrs. Sloan was content with the payment of a small portion of the principal 525*] of her debt. Instead of getting it renewed, as contemplated by the mortgage, she seems to have been willing to let it remain dishonored, and the fair inference from the averments of the bill is that Robinson would have continued to indorse, and Mrs. Sloan exhibit the same easy indifference on the subject of her indebtedness, if the death of Seth A. Coolidge had not dissolved the firm and compelled an inventory and appraisement, showing the desperate condition of the mortgagors. It hardly need be said that a mortgage which, by its very terms, authorizes the parties to accom

rulings of the Indiana courts are in favor of the validity of this mortgage, and the main case relied on to support this position is Maple v. Burnside, reported in 22 Ind., 139. The facts of this case are stated in the opinion of the court in a way to render it difficult for any practitioner outside of the State to understand the application to them of the legal rules which are discussed; but there is nothing to show that the mortgage there considered contained any provision permitting the mortgagor to remain in possession of the property and deal with it as his own, nor does the judgment of the court involve any such question. The case would seem to be chiefly valuable as an authoritative exposition of certain points of nisi prius practice. Although we have been unable to find any case from Indiana of similar facts with the one at bar, yet the decision in the Ins. Co. v. Wilcoxson, 21 Ind., 355, would seem to imply that when such a case did arise it would be decided in accord

Finally, it is insisted if the mortgage is held void in law, still the delivery of the goods in pledge vests a sufficient lien, prima facie, to enable the appellants to enforce their lien in equity.

The answer to this is, that the case made by the bill does not proceed upon such a delivery at all, but upon the mortgage and seizure under it. Besides, if the appellants could turn the proceeding into a voluntary pledge by the debtors, it would not help them, for it would violate the preference clause of the Bankrupt Act, as they got the goods only twelve days be fore the petition in bankruptcy was filed. The decree of the Circuit Court is affirmed. JOHN PHELPS PUTNAM, Heman Ely, and Heman Ely as Admr., etc., and Stevenson Burke, Appts.,

ance with the views we have presented. The bill of review. To the character of a bill of point ruled in that case is that if a mort-review, it adds that of an original bill, seeking gage is executed merely to protect property in to set aside the decree in the principal suit, the hands of the mortgagor from his creditors on the ground of inadvertence and mistake on other than the mortgagee, the mortgagor re- the part of the complainant's solicitor and taining possession and the right of disposition, counsel. The bill was filed by Ezekiel R. Day, and these facts appear upon the face of the the appellee here, to reverse and set aside a mortgage, it would be fraudulent and void as decree which had been rendered against him against other creditors, and should be 'so de- for the sum of $6,230, in the suit referred to, clared by the court. And the court, to sustain in which John Phelps Putnam, Heman Ely and 527*] this proposition, *refer to Freeman v. Stevenson Burke, the appellants here, were the Rawson, 5 Ohio, 1, a standard authority in complainants, and the New Albany and Santhis class of cases, for the views we have ad- dusky City Junction Railroad Company, the vanced on this subject. City of New Albany, Silas C. Day, the said Ezekiel R. Day and divers other persons, stockholders of said railroad company, were the defendants. The original suit was a creditor's bill, filed in the Circuit Court of the United States for the District of Indiana, in January, 1868, by the complainants as judgment creditors of the said railroad company, under a judgment recovered in the name of certain trustees in the Floyd County Circuit Court of Indiana, in November, 1857, the beneficial interest of which judgment had been assigned to the complainants. The bill was filed against the City of New Albany, Ezekiel R. Day, and 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 of their stock having been taken off their were not indebted on their subscriptions, most hands by the City of New Albany, under provision for that purpose, contained in the original subscriptions. The case of these defendants was considered by this court in Burke v. Smith, 16 Wall., 390, 21 L. ed. 361.

v.

EZEKIEL R. DAY.

(See S. C., 22 Wall., 60-67.)

Bill of review, what examinable on—answer in -proper relief.

*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 can

not 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.

A

[No. 124.]

Argued Jan. 22, 25, 1875. Decided Feb. 15, 1875.
PPEAL from the Circuit Court of the Unit-
ed States for the District of Indiana.
The case is stated by the court.
Messrs. Porter & Harrison, J. A. Garfield
and S. Burke, for appellants.

Mr. M. C. Kerr, for appellee.

Mr. Justice Bradley delivered the opinion

of the court:

This is a case in equity which, in the court below, came up on a bill, in the nature of a *Headnotes by Mr. Justice BRADLEY.

NOTE. Bill of review; nature of; when may be brought; who may maintain; time within which rhat it should contain-see note, 8 L. ed. U. S. 890.

Right to maintain bill of review as dependent on interest-see note, 36 L.R.A. 385.

When may be brought, and for what-see note,

27 L. ed. U. S. 269.

The City of New Albany, in its answer, set up a defense peculiar to itself, to wit: a complete 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

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