fort was given or intended to be given to the | dominated by the Confederate states, were
Rebellion, when the functions necessarily re-
posed in the state for the maintenance of civ-
il society were perverted into the manifest
and intentional aid of treason against the
government of the Union, that their acts are

From these cases it may be deduced

not to be regarded, for that reason only, as invalid, it is difficult to perceive why a different principle should be applied to the investment by a guardian of his ward's Confederate notes or currency in Confederate bonds-both guardian and ward residing at that time, as they did from the commencement of the Civil War, within the Confeder ate lines and under subjection to the Confederate states.

That the transactions between persons actually residing within the territory dominated by the governn:ent of the Confederate states were not invalid for the reason only As to the question of the intent with which that they occurred under the sanction of the this investment was made, all doubt is relaws of that government or of any local gov-moved by the agreement of the parties at the ernment recognizing its authority; trial that the investment was bona fide, and

That, within such territory, the preserva- that the only question made was as to its tion of order, the maintenance of police reg-legality. We interpret this agreement as ulations, the prosecution of crimes, the pro- meaning that the guardian had in view only tection of property, the enforcement of con the best financial interests of the ward in the tracts, the celebration of marriages, the set-situation in which both were placed, and that tlement of estates, the transfer and descent he was not moved to make the investment of property, and similar or kindred subjects, with the purpose in that way to obstruct the were, during the war, under the control of United States in its efforts to suppress armed the local governments constituting the so-rebellion. We are unwilling to hold that the called Confederate states; mere investment in Confederate states bonds

That what occurred or was done in respect-no actual intent to impair the rights of the of such matters under the authority of the United States appearing-was illegal as belaws of these local de facto governments tween the guardian and ward. should not be disregarded or held invalid *It is said, however, that any such conclu-[402) merely because those governments were or- sion is inconsistent with the decision in Laganized in hostility to the Union established mar v. Micou, 112 U. S. 452, 476 [28: 751, by the national Constitution; this, because 760]. That was a suit in the circuit court the existence of war between the United of the United States for the southern disStates and the Confederate states did not re-trict of New York, having been removed lieve those who were within the insurrection- thereto from the supreme court of that state. ary lines from the necessity of civil One of the questions arising in that case was obedience nor destroy the bonds of 80- as to the liability of a guardian for moneys ciety nor do away with civil govern- belonging to his wards which were invested ment or the regular administration of the by him during the Civil War in bonds of the laws, and because transactions in the ordi- Confederate states. This court said: "Other nary course of civil society as organized with moneys of the wards in Lamar's hands, arisin the enemy's territory, although they may ing either from dividends which he had rehave indirectly or remotely promoted the ends ceived on their behalf or from interest with of the de facto or unlawful government or- which he charged himself upon sums not inganized to effect a dissolution of the Union, vested, were used in the purchase of bonds of were without blame "except when proved to the Confederate states, and of the state of have been entered into with actual intent to Alabama. The investment in bonds of the further invasion or insurrection;" and, Confederate States was clearly unlawful, and [401] *That judicial and legislative acts in the re- no legislative act or judicial decree or decispective states composing the so-called Con- sion of any state could justify it. The sofederate states should be respected by the called Confederate government was in no courts if they were not "hostile in their pur- sense a lawful government, but was a mere pose or mode of enforcement to the authority government of force, having its origin and of the national government, and did not im- foundation in rebellion against the United pair the rights of citizens under the Consti- States. The notes and bonds issued in its tution." name and for its support had no legal value Applying these principles to the case before as money or property, except by agreement us, we are of opinion that the mere investor acceptance of parties capable of contractment by Hunter, as guardian, of the Con-ing with each other, and can never be refederate funds or currency of his ward in garded by a court sitting under the authorbonds of the Confederate states should be ity of the United States as securities in which deemed a transaction in the ordinary course trust funds might be lawfully invested. of civil society, and not, necessarily, one con- Thorington v. Smith, 8 Wall. 1 [19: 361]; ceived and completed with an actual intent Head v. Starke, Chase, 312; Horn v. Lockthereby to aid in the destruction of the hart, 17 Wall. 570 [21: 657]; Confederate government of the Union. If contracts be-Note Case, 19 Wall. 548 [22: 196]; Sprott v. tween parties resident within the lines of the United States, 20 Wall. 459 [22:371]; Fretz insurrectionary states, stipulating for pay- v. Stover, 22 Wall. 198 [22: 769]; Alexander ment in Confederate notes issued in further-v. Bryan, 110 U. S. 414 [28: 195]. An inance of the scheme to overturn the authority fant has no capacity by contract with his of the United States within the territory guardian or by assent to his unlawful acts to

and that a joint and several money judgment | defendants and overruled, when answers were [443]be entered against them for the sum of $400, filed denying in general the allegations of the 000, with legal interest thereon from the bill. The court subsequently entered judg time of such loss. ment against the three directors, but, being The defendants answered the bill, denying unable to determine the proper amount, apthe allegations as to negligence on their part. pointed a referee to take proof of the amount Upon the cause being submitted to the appearing to be due and owing to the bank court, a judgment was "entered in favor of from certain named individuals. Upon such the plaintiff and against Richard P. Thomas, report having been made, a stipulation was Robert R. Thompson, and Robert A. Wilson,” entered into between the plaintiff stockholdand the case was referred to a master, wholer and the defendants Thompson and Wilfound the actual loss of the bank to be $166,-son, whereby the plaintiff renounced and 919. Before a final judgment was rendered withdrew his action against such defendants, by the court, however, the suit was dismissed and the court, upon such stipulation, entered by the plaintiff as to Robert R. Thompson a judgment dismissing the action against and Robert A. Wilson, from whom had been them. The court thereupon made a finding collected the sum of $27,500, thus leaving a of all the facts in the case, among which was net loss to the bank of $139,419, and judg-one to the effect that there had been collected ment for this amount was rendered against Richard P. Thomas.

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Thereupon, Thomas appealed to the supreme court of the state of California, by which court the judgment was reversed, and the case remanded to the trial court, with directions to enter a judgment in favor of the defendant Thomas. (113 Cal. 414.)

The plaintiff thereupon sued out a writ of error to this court, assigning as the principal ground to give this court jurisdiction that the judgment of the supreme court of the state was rendered without due or any process of law, and deprived the plaintiff of its property without due process of law, contrary to the Constitution, etc., and Revised Statutes, 5136, relating to national banks.

Messrs. Robert Rae, E. G. Knapp, and John Chetwood, Jr., for plaintiff in


Mr. A. H. Ricketts for defendant in er


Mr. Justice Brown delivered the opinion

of the court:

Unless the plaintiff in error was denied some right under the Constitution or statJutes of the United States, "specially set up and claimed" by it, this writ of error must be dismissed.

of the two defendants Thompson and Wilson the sum of $27,500, leaving a net loss to the bank of $139,419, for which judgment was entered against the defendant Thomas. Thomas thereupon appealed to the supreme court of the state from the judgment so entered.

*That court was of opinion that the com-[445] plaint, though entitled "a bill in equity for the accounting and settlement of a trust," contained nothing more than a charge er delicto against the directors for a breach and nonperformance of their duties. It did not consider it necessary to dispose of the objec tions to the complaint; but assumed, without deciding, that the complaint was suffi cient to state a cause of action in its averments of misconduct. It then proceeded to decide (1) that the complaint was one sounding in tort, and that the defendants were charged as joint tortfeasors; that their negligence was pleaded as their joint neglect to perform duties, not individually imposed members of the executive committee; that in upon them, but collectively undertaken as the findings of fact no mention was made of any dereliction of duty on the part of Thomp son and Wilson, and that there was an abso lute failure by the court to find upon the most material issues of the case-the joint negligence of the three defendants, which The bill of complaint, filed in the superior alone, it was alleged, had occasioned loss to court of San Francisco by a stockholder of the bank. "Such," said the court, "is the the California National Bank, sought to cause of action pleaded in the complaint. charge three directors of the bank with neg- The findings, if it be conceded that they give ligence in the performance of their trust, evidence of a meritorious cause of action and particularly in failing to comply with against the defendant Thomas, do so because certain by-laws of the bank, by which large of a showing that he was negligent, not with amounts of money were lost to the bank, the other defendants and as member of the which the bill prayed that the defendants executive committee, but that he was individ might be decreed to make good and restore. ually and separately negligent in the perThe bank was chartered under the national formance of his duties as president. But banking act and the by-laws were adopted this is not the cause of action pleaded against in pursuance of Revised Statutes, section him, and it is well settled that, where the 5136, which authorizes associations in-case made out by the findings is a different corporated under the act to define the duties case from that presented by the pleadings, of the president and other officers and to reg- the judgment will be reversed; for the relief ulate the manner in which its general busi- decreed must be the relief sought, and a va ness shall be conducted. Certain transac- riance, even if it be such as could have been tions of the directors are also alleged to be cured by amendment, is fatal to the validity infractions of Revised Statutes, section 5200, of the judgment." The court further held for which the directors are made liable in (2) that, as the defendants in error were section 5239, although no violations of this sued jointly for a tort, a withdrawal of the section are specifically alleged in the bill. action in favor of Thompson and Wilson ope rated also to release the defendant Thomas.

Demurrers were interposed by the several

This was in fact the main reason given for

State of California to review a decision of
that court reversing an order made by the
Superior Court of the City and County of
San Francisco denying a motion to require
the plaintiff Chetwood to appear and show
cause why moneys collected of defendants
Thompson and Wilson and certain stock and
other securities should not be turned over
to Thomas K. Stateler as agent of the stock-
holders of the California National Bank and
directing the trial court to enter the order
prayed for, after allowing plaintiff for his
costs, etc. On motion to dismiss. Dis-
See same case below, 113 Cal. 649.

ERROR to the Supreme Court of the

its conclusion. The court thereupon ordered the judgment to be reversed, and the cause remanded with directions to enter judgment in favor of the defendant Thomas. 46] In all this record there was no Federal right specially set up or claimed by the plaintiff in error until after the judgment in the supreme court, when a petition for writ of error was filed by the California National Bank, a codefendant with Thomas in the original action, in which various allegations were made of a denial of Federal rights. But assuming that a Federal question might be extorted from the allegations of the complaint, it is sufficient to say that the case was not disposed of upon the merits of such complaint, which was treated as sufficient, but upon a variance between its allegations and the proofs, and upon the settlement made with the defendants Thompson and Wilson, and the_withdrawal of the action against them. These were purely questions under the law of the state, as to which the opinion of the supreme court was conclusive. Not only was no suggestion of a Federal question made to the trial court or to the appellate Pending the insolvency and winding-up court, but there was nothing to indicate that proceedings of the California National Bank, the judgment rendered could not have been and subsequent to the appointment of a regiven without deciding a Federal question.ceiver by the Comptroller of the Currency, Indeed, the opinion shows that the cause the petitioner Stateler was elected "agent" was decided, as it might well have been, by the stockholders pursuant to the act of solely upon grounds not involving such ques


Whether a judgment should be ordered in favor of Thomas for a dismissal of the action against him or simply for a new trial, involved merely a question of the procedure under the law of the state. The court might have been, and probably was, of the opinion that an action would lie upon the separate liability of Thomas, and have reserved for future consideration the question whether the dismissal of this action upon a joint liability would operate as estoppel against a new action upon his individual liability. There was no Federal question involved in the disposition of this case, and the writ of error is therefore dismissed.

147] CALIFORNIA NATIONAL BANK et al., Plffs. in Err.,



(See S. C. Reporter's ed. 447–449.)

What is not a final order.

Statement by Mr. Justice Brown:
This was an intervening petition by State-
ler in the case just decided of the California
National Bank v. Thomas [ante, 231] to ob-
tain the possession of the sum of $27,500
paid to the plaintiff Chetwood by the de-
fendants Thompson and Wilson in the settle-
ment of the suit of Chetwood against them

as codefendants with Thomas.

Congress of August 3, 1892 (27 Stat. at L.
345). As this act provided that the per-
son so elected agent "shall hold, control, and
dispose of the assets and property of such
association which he may receive under the
terms hereof, for the benefit of the share-
holders of such association," Stateler ap-
plied by affidavit to the superior court of the
city and county of San Francisco, in which
the Chetwood action was then pending, for an
order upon the plaintiff Chetwood to appear
and show cause why the moneys collected of
Thompson and Wilson, as well as certain
stock and other securities, should not be
turned over to the affiant as such agent.

The motion was opposed upon the ground
that of the whole number of 2,000 shares,
1,020 shares only were voted to elect State-
ler as agent of the bank, and that they were
either owned or controlled by Richard P.
Thomas, the former president, against whom
there was a judgment outstanding in favor [448]
of the stockholders in the amount of $139,-
419, besides an unpaid assessment of $20,-
000 levied upon him as a stockholder by the
Comptroller of the Currency.

Upon affidavits read at the hearing of the motion the court denied the order prayed for, whereupon Stateler appealed to the supreme court of the state. That court held that the An order directing the trial court to enter regularity of the appointment of the agent an order for turning over certain moneys and could not be questioned in a proceeding of this securities received from certain persons, aft-kind, inasmuch as it had been approved by er making reasonable allowances for "costs, the Comptroller of the Currency, and that templated by law, is not a final order for the the agent's demand to have the money paid

disbursements, and attorneys' fees" as con

purpose of a writ of error.

[No. 37.]

over to him should have been granted. The
court thereupon reversed the order "with di-
rections to the trial court to enter the order
prayed for, after making reasonable allow-

Bubmitted May 4, 1898. Decided October ance to the plaintiff Chetwood for his costs,

17, 1898.

disbursements. and attorney's fees in said

National Bank of Commerce and Smith and Fougeray reported them a part of 500,000acre survey, Robert Morris patent, known as the 'Robert E. Randall land,' and that a suit was pending in the circuit or district court of the United States for the district of West Virginia, and that proceedings to sell the same under said formal proceedings had been enjoined. Said commissioner is advised that an error was made in said matter, and that no suit was pending in said United States court with reference to said 500,000-acre survey. The said commissioner of school lands would further report that it has come to his knowledge from Henry C. King, the present owner and claimant thereof, that a tract of 500,000 acres of land, lying partly in this county and partly in the counties of Logan and McDowell, and the greater portion in the states of Virginia and Kentucky, was at the April term, 1883, of the circuit court of this county redeemed from a former forfeiture by Robert E. Randall, trustee, and all the taxes thereon paid prior to and including the year 1883; that since said redemption the said land has been omitted from the land books of this county for five consecutive years, to wit, for the years 1884, 1885, 1886, 1887, and 1888, and thereby the same has been forfeited to the state in the name of Robert E. Randall, trustee. The said commissioner of school lands further reports that each of said tracts hereinbefore mentioned are liable to be sold for the benefit of the school fund of this state on account of the forfeiture herein stated; all of which is respectfully submitted."

a tract of 500,000 acres of land, or any part
thereof, or any other tract forfeited for any
cause in the name of either Robert E. Randall,
Robert E. Randall, trustee, A. D. Mau-
pertures, Jno. R. Reed, John R. Reed, trustee,
John V. LeMoyne, David W. Armstrong, or
Henry C. King; that there were no lands
from any of those counties entered on the
record of forfeited lands of his office for either
of those years in the name of either or any of
those parties; that he had carefully ex-
amined the record books of delinquent lands
returned and kept in his office, as required by
law, for the counties of Logan, Mingo,
Wyoming, and McDowell, West Virginia,
from and including the year 1883 to date,
and there did not appear on such record books
a tract of 500,000 acres of land or any part
thereof or any other tract delinquent for any
cause *in the name of either Robert E. Ran [409)
dall, Robert E. Randall, trustee, A. D. Mau-
pertures, John R. Reed, John R. Reed, trustee,
John V. LeMoyne, David W. Armstrong, or
Henry C. King; and that there were no lands.
from any of those counties entered on the
record of delinquent lands of his office for
either or any of those years in the name of
either or any of those parties.

The plaintiff further offered evidence tending to prove that all taxes of the state of West Virginia charged or chargeable upon said tract of land up to and including the year 1883 had been fully paid and discharged by Robert E. Randall, trustee, under whom plaintiff claimed title, and proved further that plaintiff was a purchaser of said tract for a valuable consideration and without knowledge or notice of any alleged forfeiture thereof or outstanding title thereto in West Virginia, or of any of the facts set out in the auditor's certificate, shown and referred to in plaintiff's bill of exceptions, except such notice as the land books and records duly re-kept, disclosed.

3. A certited copy of an order of the cir[408]cuit court of Logan county, West Virginia, made April 1, 1889, showing the appointment of U. B. Buskirk as commissioner of school lands of that county, and his annual report, as such commissioner, of all tracts and parcels of land in Logan county theretofore ported for sale for the benefit of the school fund to the clerk of the circuit court of that county under §§ 1 and 2 of chapter 105 of the Code of West Virginia, and all lands in that county not theretofore reported, which in his opinion were liable to sale for the benefit of

that fund.

4. A certified copy of an order of the circuit court of Logan county, West Virginia, ordering suit to be brought in the name of the state for the sale of the lands mentioned in the report of commissioner Buskirk.

At the instance of the defendants the court instructed the jury "that the title to the land claimed by the plaintiff, granted to one Robert Morris by the commonwealth of Virginia, by patent dated June 23, 1795, was (prior to the date of the deed made by John V. LeMoyne to Henry C. King, under which the plaintiff now claims), under the provisions of the Constitution of the state of West Virginia, forfeited to and vested in said state, and was so forfeited at the time this suit was instituted, and that therefore the plaintiff took and has no title to said land, and the jury are further instructed to render a verdict in favor of the defendants."

The defendants having rested their case, the plaintiff to prove that no forfeiture of the land or outstanding title thereto existed or was claimed by the state of West Virginia, To this instruction the plaintiff objected and that there was no record of any for- upon the ground that the provisions of the feiture where the same would be found if it Constitution of West Virginia for the forexisted, introduced and read in evidence a feiture of lands were repugnant to the 14th certificate of the auditor of the state, dated Amendment of the Constitution of the United October 30, 1895, certifying that he had care- States, and to article 3, §§ 4, 5, 9, 10, 20, and fully examined the record books of forfeited article 5, § 1, of the state Constitution; and lands returned and kept in his office, as re- upon the further ground that if there were a quired by law, for the counties of Logan, forfeiture of said land to and an outstanding Mingo, Wyoming, and McDowell, West title in the state, such title could not be set Virginia, from and including the year 1883 to up against the plaintiff in this action, he bedate, and there did not appear on such books ing a purchaser for value without knowledge

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