is justifiable because it would distress the debtor to pay it. A voluntary refusal to pay an honest debt is a high offense in a commercial community and is just cause of war between nations. So far as the defense rests upon these principles we find no difficulty in overruling it. There is, however, a grave question of the power of the court to grant the relief asked for. We are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and is exercised, first, to raise money for public purposes only; and, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond 117*] *the power of the Federal judiciary to assume the place of a State in the exercise of this authority at once so delicate and so important. The question is not entirely new in this court. of Missouri, a tax was ordered to be levied by The The case of Lansing v. Treasurer (also cited) arose within the State of Iowa. It fell within the case of Supervisors v. Rogers, and was rightly decided because authorized by the express Statute of the State of Iowa. It offered no precedent for the decision of a case arising in a State where such a statute does not exist. These are the only authorities upon the power of this court to direct the levy of a [*119. tax under the circumstances existing in this case to which our attention has been called. In the case of Supervisors v. Rogers, 7 Wall., 175, 19 L. ea. 162, an order was made by this court appointing the marshal a commissioner, with power to levy a tax upon the taxable property of the county, to pay the principal and interest of certain bonds issued by the county, the payment of which had been refused. That case was like the present, except that it occurred in the State of Iowa, and the proceeding was taken by the express authority of a statute of that State. The court say: "The next question is as to the appointment of the Marshal as a commissioner to levy the tax in satisfaction of the judgment. This depends upon a provision of the Code of the State of Iowa. This proceeding is found in a chapter regulating proceedings in the writ of mandamus, and the power is given to the court to appoint a The plaintiff insists that the court may acperson to discharge the duty enjoined by the complish the same result under a different peremptory writ which the defendant had re- name, that it has jurisdiction of the persons fused to perform, and for which refusal he was and of the property, and may subject the propliable to an attachment, and is express and un-erty of the citizens to the payment of the plainqualified. The duty of levying the tax upon tiff's debt without the intervention of state taxthe taxable property of the county to pay the ing officers, and without regard to tax laws. principal and interest of these bonds was spe- His theory is that the court should make a decially enjoined upon the Board of Supervisors cree subjecting the individual property of the by the Act of the Legislature that authorized citizens of Watertown to the payment of the their issue, and the appointment of the marshal plaintiff's judgment; direct the marshal to as a commissioner in pursuance of the above make a list thereof from the assessment rolls or section is to provide for the performance of from such other sources of information as he this duty where the Board has disobeyed or may obtain; report the same to the court, evaded the law of the State and the peremptory where any objections should be heard; that the mandate of the court. amount of the debt should be apportioned upon the several pieces of property owned by individual citizens; that the marshal should be directed to collect such apportioned amount from such persons, or in default thereof to sell the property. The State of Wisconsin, of which the City of Watertown is a municipal corporation, has passed no such act. The case of Supervisors v. Rogers is, therefore, of no authority in the case before us. The appropriate remedy of the plaintiff was, and is, a writ of mandamus. Riggs v. Johnson Co., 6 Wall., 193, 18 L. ed. 775. This may be repeated as often as the occasion requires. It is a judicial writ, a part of a recognized course of legal proceedings. In 118*] the present *case it has been thus far unavailing, and the prospect of its future success is, perhaps, not flattering. However this may be, we are aware of no authority in this court to appoint its own officer to execute the duty thus neglected by the City in a case like the present. In Welch v. St. Genevieve, 10 Am. Law Reg., N. S., 512, at a Circuit Court for the District' As a part of this theory, the plaintiff argues that the court has authority to direct the amount of the judgment to be wholly made from the property belonging to any inhabitant of the City, leaving the citizens to settle the equities between themselves. This theory has many difficulties to encounter. In seeking to obtain for the plaintiff his just rights we must be careful not to invade the rights of others. If an inhabitant of the City of Watertown should own a block of buildings of the value of $20,000, upon no principle of law could the whole of the plaintiff's debt be collected from that property. Upon the assump not be righted elsewhere, and hence the right must be sustained in chancery. The difficulty arises from too broad an application of a general principle. The great advantage possessed by the Court of Chancery is not so much in its enlarged jurisdiction as in the extent and adaptability of its remedial powers. Generally its jurisdiction is as well defined and limited as is that of a court of law. It cannot exercise jurisdiction when there is an adequate and complete remedy at law. It cannot assume control over that large class of obligations called im tion that individual property is liable for the payment of the corporate debts of the municipality, it is only so liable for its proportionate amount. The inhabitants are not joint and several debtors with the Corporation, nor does their property stand in that relation to the Corporation or to the creditor. This is not the theory of law, even in regard to taxation. The block of buildings we have supposed is liable to taxation only upon its value in proportion to the value of the entire property, to be ascer120*] tained by *assessment, and when the proportion is ascertained and paid, it is no long-perfect obligations, resting upon conscience and er or further liable. It is discharged. The residue of the tax is to be obtained from other sources. There may be repeated taxes and assessments to make up delinquencies, but the principle and the general rule of law are as we have stated. In relation to the Corporation before us, this objection to the liability of individual property for the payment of a corporate debt is presented in a specific form. It is of a statutory character. The remedies for the collection of a debt are essential parts of the contract of indebtedness, and those in existence at the time it is incurred must be substantially preserved to the creditor. Thus a statute prohibiting the exercise of its taxing power by the City to raise money for the payment of these bonds would be void. Von Hoffman v. Quincy, 4 Wall., 535, 18 L. ed. 403. But it is otherwise of statutes which are in existence at the time the debt is contracted. Of these the creditor must take notice, and if all the remedies are preserved to him which were in existence when his debt was contracted, he has no cause of complaint. Cooley, Const. Lim., 285, 287. by section nine of the defendant's charter, Priv. L., ch. 237, p. 667, it is enacted as follows: "Nor shall any real or personal property of any inhabitant of said City or any individual or corporation, be levied upon or sold by virtue of any execution issued to satisfy or collect any debt, obligation or contract of said City." If the power of taxation is conceded not to be applicable, and the power of the court is invoked to collect the money as upon an execution to satisfy a contract or obligation of the City, this section is directly applicable and forbids the proceeding. The process or order asked for is in the nature of an execution; the property proposed to be sold is that of an inhabitant of the City; the purpose to which it is to be applied is the satisfaction of a debt of the City. The proposed remedy is in direct violation of a 121] statute in existence *when the debt was incurred, and made known to the creditor with the same solemnity as the statute which gave power to contract the debt. All laws in existence when the contract is made are necessarily referred to in it and form a part of the measure of the obligation of the one party, and of the right acquired by the other. Cooley, Const. Lim., 285. But independently of this statute, upon the general principles of law and of equity jurisprudence, we are of opinion that we cannot grant the relief asked for. The plaintiff invokes the aid of the principle that all legal remedies having failed, the Court of Chancery must give him a remedy; that there is a wrong which can moral duty only, unconnected with legal obligations. Judge Story says: "There are cases of fraud, of accident, and of trust which neither courts of law nor of equity presume to relieve or to mitigate," of which he cites many instances. 1 Story, Eq. Jur., sec. 61. Lord Talbot says: "There are cases, indeed, in which a court of equity gives remedy where the law gives none, but where a particular remedy is given by law, and that remedy bounded and circumscribed by particular rules, it would be very improper for this court to take it up where the law leaves it, and extend it further than the law allows." Heard v. Stanford, Talbot, Cas. Temp., 174. Generally its jurisdiction depends upon legal obligations, and its decrees can only enforce remedies to the extent and in the mode by law established. With the subjects of *fraud, [*122 trust or accident, when properly before it, it can deal more completely than can a court of law. These subjects, however, may arise, in courts of law, and there be well disposed of. 1 Story, Eq. Jur., sec. 60. A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, or even without the authority of law. It acts upon established principles not only, but through established channels. Thus, assume that the plaintiff is entitled to the payment of his judgment, and that the defendant neglects its duty in refusing to raise the amount by taxation, it does not follow that this court may order the amount to be made from the private estate of one of its citizens. This summary proceeding would involve a violation of the rights of the latter. He has never been heard in court. He has had no opportunity to establish a defense to the debt itself, or if the judgment is valid, to show that his property is not liable to its payment. It is well settled that legislative exemptions from taxation are valid, that such exemptions may be perpetual in their duration, and that they are in some cases beyond legislative interference. The proceeding supposed would violate that fundamental principle contained in chapter 29 of Magna Charta, and embodied in the Constitution of the United States, that no man shall be deprived of his property without due process of law-that is, he must be served with notice of the proceeding, and have a day in court to make his defense. Westervelt v. Gregg, 12 N. Y., 209. "Due process of law (it is said) undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights." Westervelt v. Gregg, supra. In the New England States it is held that a judgment obtained against a town may be levied upon and made out of the property of any inhabitant of the town. The suit in those States is brought in form against the inhabitants of the town, 123*] naming it; the individual inhabitants, *it is said, may and do appear and defend the suit, and hence it is held that the individual inhabitants have their day in court, are each bound by the judgment, and that it may be collected from the property of any one of them. Cooley, Const. Lim., 240-245. This is local law peculiar to New England. It is not the law of this country generally, or of England. Russell | v. Men of Devon, 2 T. R., 667. It has never | been held to be the law in New York, in New Jersey, in Pennsylvania, nor, as stated by Mr. Cooley, in any of the Western States. Emeric v. Gilman, 10 Cal., 408, where all the cases are collected. So far as it rests upon the rule that these municipalities have no common fund, and that no other mode exists by which demands against them can be enforced, he says that it cannot be considered as applicable to those States where provision is made for compulsory taxation to satisfy judgments against a town or city. Cooley, Const. Lim., 246. The general principle of law to which we have adverted is not disturbed by these references. It is applicable to the case before us. Whether, in fact, the individual has a defense to the debt, or by way of exemption, or is without defense, is not important. To assume that he has none and, therefore, that he is entitled to no day in court, is to assume against him the very point he may wish to contest. satisfactory. The plaintiff alleges, however, in the present case, that he has issued such a writ on three different occasions; that, by means of the aid afforded by the Legislature and by the devices and contrivances set forth in the bill, the writs have been fruitless; that, in fact, they afford him no remedy. The remedy is in law and in theory adequate and perfect. The difficulty is in its execution only. The want of a remedy and the inability to obtain the fruits of a remedy are quite distinct, and yet they are confounded in the present proceeding. To illustrate: the writ of habere facias possessionem is the established remedy to obtain the fruits of a judgment for the plaintiff in ejectment. It is a full, adequate and complete remedy. Not many years since there existed in Central New York combinations of settlers and tenants disguised as Indians, and calling themselves such, who resisted the execution of this process in their counties, and so effectually that for some years no landlord could gain possession of his land. There was a perfect remedy at law, but through fraud, violence or crime its execution was prevented. *It will hardly be argued [*125 that this state of things gave authority to invoke the extraordinary aid of a court of chancery. The enforcement of the legal remedies was temporarily suspended by means of illegal violence, but the remedies remained as before. It was the case of a miniature revolution. The courts of law lost no power, the court of chancery gained none. The present case stands upon the same principle. The legal remedy is adequate and complete, and time and the law must perfect its execution. Entertaining the opinion that the plaintiff has been unreasonably obstructed in the pursuit of his legal remedies, we should be quite willing to give him the aid requested if the law permitted it. We cannot, however, find authority for so doing, and we acquiesce in the conclusion of the court below that the bill must be dismissed. Judgment affirmed. Mr. Justice Clifford, dissenting: Again, in the case of Emeric v. Gilman, before cited, it is said: "The inhabitants of a county are constantly changing; those who contributed to the debt may be non-residents upon the recovery of the judgment or the levy of the execution. Those who opposed the creation of the liability may be subjected to its payment, while those, by whose fault the burden has been imposed, may be entirely relieved of responsibility. To enforce this right against the inhabitants of a county would lead to such a multiplicity of suits as to render the right valueless." We do not perceive, if the doctrine contended for is correct, why the money might not be entirely made from property owned by 124*] the creditor himself, *if he should happen to own property within the limits of the Corporation, of sufficient value for that purpose. The difficulty and the embarrassment arising from an apportionment or contribution among those bound to make the payment we do not regard as a serious objection. Contribution and apportionment are recognized heads of equity jurisdiction, and if it be assumed that process could issue directly against the citizens to collect the debt of the City, a court of equity could make the apportionment more conveniently than could a court of law. 1 Story, Eq. Jur., | CHARLES J. CARPENTER, Trustee of Sarah sec. 470, and onwards. We apprehend, also, that there is some confusion in the plaintiff's proposition, upon which the present jurisdiction is claimed. It is conceded, and the authorities are too abundant to admit a question, that there is no chancery jurisdiction where there is an adequate remedy at law. The writ of mandamus is, no doubt, the regular remedy in a case like the present, and ordinarily it is adequate and its results are I dissent from the opinion of the court in this case upon the ground that equity will never suffer a trust to be defeated by the refusal of the trustee to administer the fund, or on account of the misconduct of the trustee, and also because the effect of the decree in the court below, if affirmed by this court, will be to give judicial sanction to a fraudulent repudiation of an honest debt. For which reasons, as it seems to me, the decree of the subordinate court should be reversed. . Also dissenting, Mr. Justice Swayne. S. McCammaut, Plff. in Err., v. court of justice as to whom the certificate, patent | to Bankston without expense to the latter exor confirmation should inure. cept for the necessary conveyances. [No. 188.] of Missouri. This was an action of ejectment, brought by the plaintiff in error, in the Circuit Court of St. Louis Co., Mo. The plaintiff claimed to have derived title by deeds executed in 1855 and 1856, by the heirs of one John Butler. The defendant claimed title under one Bankston, who had a contract with Butler prior to the issue of the patent. Judgment was for the defendant in the State, Circuit and Supreme Courts. The facts are fully stated in the opinion. Mr. Britton A. Hill, for plaintiff in error. Messrs. Glover & Shepley and M. Blair, for defendant in error: Mr. Justice Swayne delivered the opinion of the court: This is a writ of error to the Supreme Court of the State of Missouri. The action was ejectment. The cause was submitted to the court without the intervention of a jury. The court found and gave judgment for the defendant. The plaintiff has brought the case here for review, and is the plaintiff in error in this court. John Butler had an inchoate title derived from the Spanish Government, acting through its authorized agents. Upon this subject there is no controversy between the parties. It is the common source of the derivative titles upon which they severally rely. On the 23d of July, 1801, Butler entered into an agreement with James Bankston to the following effect: Butler leased the land to Bankston for three years from the date of the contract. Banks ton agreed, "during the three years, to erect on said tract all the improvements and establishments to break up the ground, and to make the Royal road and other improvements required by law; to be enabled at the end of three years from the petition for said land to obtain the title of proprietorship from the government of the province.' Butler acknowledged the payment of forty piasters by Bankston. On condition that Bankston, at the end of the three years, should have made the improvements stipulated for, the land was to "belong to him in full proprietorship," and Butler bound himself, his heirs and assigns, "to solicit the title from the government, and to make a regular transfer 141*] of said land to the said James *Bankston without any further cost on his part, except the expenses of the necessary deed," and "Bankston promised to fulfill and execute all the said clauses and conditions, under penalty of the forfeiture of the advantages which might result in his favor." This instrument shows that so far as Butler was concerned the entire consideration of the transaction had been paid. What remained for Bankston to do was wholly for his own benefit, and not for Butler's. If he fulfilled, a perfect title was to be acquired from the governmentnot for Butler, but for himself. It was implied that the title was to emanate in Butler's name. He stipulated to apply for it and to convey it The State of Missouri is a part of a larger territory which belonged to France, then to Spain, and again to France. France ceded it to the United States in 1803. The United States stipulated that the inhabitants of the ceded territory should be protected in the free enjoyment of their property. The law of nations would have given this guaranty if the Treaty had been silent upon the subject, and the result would have been the same if the territory had been acquired by conquest and not by cession. The new government took the place of that which passed away, and was clothed with the same duties and obligations as to all rights of property subsisting when the dominion of the latter was withdrawn. Soulard v. U. S., 4 Pet., 512; Strother v. Lucas, 12 Pet., 436. This Congress, by the Act of March 2, 1805, 2 Stat. at L., 324, provided for the examination and adjustment of claims of title like the one here in question, and created a Board of CommisOther Acts were sioners for that purpose. passed relating to the subject, but it is not necessary particularly to advert to them. title came before the commissioners in the year 1811, and the result of their action is the hinge of the controversy between these parties. The question to be determined is, *whether [*142 it was confirmed to Butler or to Bankston. This renders it necessary to examine that part of the record which relates to the subject. It consists of a transcript of the proceedings of the commissioners and of the evidence before them. We shall itemize as we proceed. (1) "John Butler claims 200 arpents of land in the district of New Madrid, under the 2d section of the Act of Congress made and provided." (2) An order, dated April 16, 1801, from Peyroux to Story, to survey 200 arpents of land for Butler. This was before the date of the contract between Butler and Bankston. (3) A plat of the survey made by Story and a certificate by him that he made it at the request of Butler, who claimed the land by virtue of a grant from Peyroux while commandant of the district of New Madrid, and in virtue of the 2d section of the Act of March 2, 1805. certificate is dated February 2, 1806. This (4) The contract between Butler and Bankston already adverted to. (5) "Friday, April 12, 1811.-Board met; Present, John B. C. Lucas, Clement B. Penrose and Frederick Bates, commissioners. "James Bankston, assignee of John Butler, claiming 200 arpents of land, situate in Cypress Swamp, District of New Madrid, produced to the board an order of survey dated 16th April, 1801, a certified copy of a conditional transfer from Butler to claimant, dated 23d July, 1801, and a plat of survey dated 2d February, 1806. "The Board grant to John Butler or his legal representatives, 200 arpents of land, and order that the same be surveyed as nearly in a square as may be, and so as to include his improvements. "Board adjourned till Monday next, nine o'clock A. M." Signed by the commissioners. "See Board Minute Book, No. 5, pages 145, 148 and 149." (6) "Thursday, June 20, 1811.-Board met: 86 U. S. "Cert. No. 1103, John Butler's legal representatives, Book 5, page 148. "Survey at expense of the United States. Board adjourned till to-morrow, eight o'clock A. M." Signed by the commissioners. "See Board Minute Book, No. 5, page 187, 188 and 193." (7) "Louisiana Commissioners' Certificate No. 1103, June 20, 1811. "We, the undersigned, commissioners for ascertaining and adjusting the titles and claims to lands in the Territory of Louisiana, have decided that the legal representatives of John Butler, original claimant, are entitled to a patent under the provisions of the 2d section of an Act of Congress of the United States, entitled 'An Act for Ascertaining and Adjusting the Titles and Claims to Land within the Territory of Orleans and the District of Louisiana,' passed the 2d day of March, one thousand eight hundred and five, for two hundred arpents of land, situate in the District of New Madrid, Cypress Swamp, and order that the same may be surveyed as nearly in a square as may be, and so as to include his improvements, by virtue of a permission from the proper Spanish officer, and also of actual inhabitation and cultivation prior to, and on, the 20th day of December, one thousand eight hundred and three." Signed by the commissioners. "See certificate on file." So far as the name of Butler appears in these documents, as the claimant, it is to be borne in mind that ne was bound by his contract with Bankston to procure the emanation of the final title for the benefit of the latter. It is shown that Bankston produced to the commissioners a copy of his contract with Butler; that the board granted to Butler or his legal representatives, the land claimed; that it was ordered to be surveyed in the name of "John Butler's legal representatives;" that there were improvements made by permission of the proper Spanish officer, and "actual inhabitation and 144*] *cultivation on and prior to the 20th of December, 1803;" and finally, that the board "decided that the legal representatives of John Butler, original claimant, are entitled to a patent under the 2d section of the Act of Mar. 2, 1805." There is no evidence that Butler or anyone else questioned the claim of Bankston before the commissioners. The Act of Congress of February 17, 1815 (3 Stat. at L., 211), declared that any person owning lands in the County of New Madrid, in Missouri Territory, which land had been injured by earthquakes, might "locate the like quantity of land on any of the public lands of said Territory the sale of which is authorized by law." In the event of such location being made, the title of the owner to the lands injured was to revert to the United States. In the proceedings under this Act the following testimony is found in the record: (1) A, a line in a tabulated statement, showing that Butler claimed that the land in question was injured, and had relinquished the title to the United States. (2) A, a line in a like statement that Butler was the claimant, and that a certificate of injury had been delivered to James Evans. (3) A, a line in a like statement that Butler, or his legal representatives, claimed, and that a patent certificate was prepared accordingly by the recorder of land titles under the Act of 1815 and the supplementary Acts, and that it was delivered to William Smith, of St. Louis. The only other testimony in the record necessary to be adverted to is: (1) A power of attorney from Butler to James Evans, dated February 9, 1819, authorizing him, as the attorney of Butler, to sell "a certificate of location for 200 arpents obtained from the recorder of land titles for the Territory of Missouri, or to locate the same as he should think proper." (2) A deed from Evans, as such attorney, dated January 1, 1819, whereby he assigned the certificate to Henry *Waddle. It is de- [*145 scribed as "a New Madrid certificate, issued by Frederick Bates, recorder of the land titles for the Territory of Missouri, No. 511, dated December 31, 1818, whereby it is certified, among other things, that John Butler, or his legal representatives, is entitled to locate 200 arpents of land." (3) A patent from the United States to John Butler, or his legal representatives, dated March 30, 1863. It recites that, in pursuance of the Act of February 17, 1815, there had been located "for John Butler, or his legal representatives, a certain tract of land, described," etc. A full description is then given. The habendum is "to the said John Butler, or his legal representatives, and to his or their heirs and assigns forever." This is the land in controversy in this case. In the opinion of the court in Hogan v. Page, 2 Wall., 607, 17 L. ed. 855, it is said that at an early period there was difficulty as to the form of patent certificates and of patents, arising out of applications to have them issued in the name of the assignee or present claimant, thus imposing upon the office the burden of deciding as to the validity of the derivative title. The same difficulty, it is said, existed in respect to the Boards of Commissioners appointed to adjust French and Spanish claims. The result, after consulting the Attorney-General, was that the Commissioner of the Land Office recommended that in such cases the patent certificate or the patent should be issued to the original grantee, or his legal representatives, and that this suggestion was adopted by the several boards of commissioners. It is added: "This formula, or his legal representatives,' embraces the representatives of the original grantee of the land by contract, such as assignees or grantees, as well as by operation of law, and leaves the question open to inquiry in a court of justice as to whom the certificate, patent or confirmation should inure." This is decisive of the case before us. There it was argued that "the confirmation to [*146 the representatives of Auguste Condé" inured to his heirs. In the case before us, Butler was living at the time of the confirmation. He and Bankston were before the commissioners; Bankston produced his contract. It does not appear that Butler made any objection to his claim, and the commissioners adjudged in his favor. The omission of Butler's name in the patent certificate, under the circumstances, closed the door finally against any claim there |