[45] these provisions, taken in connection with the Messrs. Wm. B. Webb and Enoch Tot. Mr. Chief Justice Waite delivered the opin [46] ion of the court: But the learned counsel for the plaintiff in error fails to show that an unrecorded transfer of shares has ever been held invalid as against a subsequent attachment by a creditor who has notice or knowledge of the transfer. The language and the reasoning of the opinions in the very cases that he cites clearly imply the contrary And under the early Massachusetts Registry Act of 1783, chap. 37, § 4, which provided that no unrecorded deed of lands should "be good and effectual in law to hold such lands against any other person or persons but the grantor or grantors and their heirs only," it was always held that, the intent of the statute being to give notice to subsequent purchasers and attaching creditors, a deed was valid, without record, against those who had notice or knowledge of it. Farnsworth v. Childs, 4 Mass. 637; Priest v. Rice, 1 Pick. 164. Judgment affirmed. James H. McKenney, Clerk, Sup. Court, U. S. BROOKE MACKALL, JR., Appt., v. ALFRED RICHARDS. (See S. C., Reporter's ed., 45-48.) 1. An appeal will not be entertained from a decree 2. Where one appeal was taken for the sole purpose of correcting a certain error, it is proper to construe the mandate as in effect nothing more than an order for such correction, leaving the remainder of the decree to stand. 3. Where, since the original decree, the rights of the parties have so changed as to make it improper to carry the decree into execution, relief can only be had through some form of original proceeding. It cannot be had by way of defense before decree upon the mandate. 4. The decree in this case, although rendered at Submitted Dec. 8, 1885. Decided Dec. 14, 1885. court from a decree entered in a circuit court or other inferior court in exact accordance with our mandate upon a previous appeal. Such a decree when entered is in effect our decree, and the appeal would be from ourselves to ourselves. If such an appeal is taken, however, we will, upon the application of the appellee, examine the decree entered and, if it conforms to the mandate, dismiss the case with costs. If it does not, the case will be remanded, with appropriate directions for the correction of the crror. This suit was begun in the Supreme Court of the District of Columbia, May 2, 1871, to subject to the payment of certain judgments so much of lot 7, in square 223 of the City of Washington, as had not been been conveyed by the Marshal of the District of Columbia to Alfred Richards by deed bearing date October 7, 1870. A decree was entered in favor of the complainants, at special term, on the 23d of May, 1873. This decree was affirmed at general term, October 16, 1873, and by this court, March 19, 1877. Under the decree, a sale was made and reported to the court below; but upon the return Mackall filed exceptions because the property sold had not been sufficiently described. Upon hearing, these exceptions were sustained and the sale set aside. The court then took steps to fix the boundaries of the property, and on the 11th of December, 1879, a decree was entered at special term directing that the sale be made according to a certain description. From this an appeal was taken to the general term, where the decree was affirmed April 5, 1881, in all respects, except that one of the two trustees who had been appointed to make the sale was removed at his own request, and the other directed to proceed alone. An appeal was thereupon taken to this the boundaries of the property had been errocourt, where the only error assigned was that neously fixed. At the last term this appeal was heard and the cause remanded, with directions to set aside the der ree from which this appeal is prosecuted, and to order the sale in satisfaction of complainant's demands, and in such mode as may be consistent with the practice of the court and with law, of all of lot seven (7) outside of that on which the building known as Palace Market stands." Mackall v. Richards, 112 U. S. 369 [Bk. 28, L. ed. 737]. On the production of this mandate, the court below entered a decree at general term in all material APPEAL from the Supreme Court of the respects like that appealed from, exceptande to District Columbia. On motion to dismiss. The history, facts, and case sufficiently appear in the opinion of the court. description of the property, which was made Upon examination, therefore, we are satisfied that the decree as entered is in accordance with [47] ous. [No. 67.] the mandate. As no complaints were made on | utes against usury, the latter is not illegal or usuri- Argued Nov. 18, 1885. Decided Dec. 14, 1885. APPEAL from the Circuit Court of the United Kand The decree upon the mandate, although rendered at general term, was still the decree of the Supreme Court of the District. Richards v. Michail, 113 U. S. 540 [Bk. 28, L. ed. 1132]; and the order on the trustee to report his sale to this court can work no injury. The order to take possession was part of the original decree; and as no objection was taken to it on the former appeals, it ought not to be permitted DOW. States for the District of Iowa. Statement of the case by Mr. Justice Woods: This was a suit in equity brought by Henry H. Palmer, the appellee, against Asa C. Call, the appellant, to foreclose a mortgage on the land of the latter given by him to secure his note for $11,000. The record disclosed the following facts: Albert C. Burnham, residing in Illinois, was a partner in the firm of Burnham, Ormsby & Co., bankers, at Emmetsburg, Iowa. He had in his hands for investment $10,000 belonging to his relative, one Mrs. Davidson. Call applied in writing to Burnham, Ormsby & Co. for a loan of $10,000. Soon after the application was A motion was made by Mackall in the court made Call met Burnham at Emmetsburg, Iowa, below after the mandate was received, for and they entered upon a treaty for the loan. leave to file what was called a "supplemental Burnham, thinking Call's proposition to be a fabill" but which was in reality a supplemental vorable one, decided to accept it for Mrs. Davidanswer to the original bill, setting up new de- son; and after his return to Illinois sent the fenses growing out of matters occurring since money to Burnham, Ormsby & Co., at Emmetsthe original decrees. This was properly denied. burg, to be lent to Call on the terms proposed No discretion was left in that court to grant by him. Burnham, Ormsby & Co. took the note such a motion. The order of this court was in of Call dated in November, 1872, for $10,000, efect to enter the precise decree which has payable to A. C. Burnham, or order, on Nobeen made. If since the original decree the vember 1, 1875, with 10 per cent interest, pay. debts have been paid or anything else has hap-able semi-annually, which Call secured by a pened which makes it improper to carry the mortgage on certain of his real estate in Iowa. decree into execution, resort must be had to Call received from Burnham, Ormsby & Co. some form of original proceeding appropriate $8,000 for his note, they retaining $2,000 as a to relief on that account. It cannot be done by compensation for their services in negotiating way of defense before decree upon our mandate. the loan. No part of this sum was paid to Mrs. The order of this court places the case where it Davidson; she did not know that it had been will be if the original decree had been what deducted from the $10,000 lent by her to Call, and she never authorized Burnham dr Burnun-ham, Ormsby & Co. to lend her money at a greater rate of interest than 10 per cent, or to retain any commission or bonus out of the sum lent. In short, she received no benefit from the usury and had no knowledge of it. A. C. Burnham held the note as the agent and trustee of Mrs. Davidson, but subject to her control. Afterwards the appellee, Palmer, who lived in New Jersey, bought of Burnham the $10,000 note of Call, with five coupon notes of $500 each, not then due, given by the latter for interest thereon. The notes were indorsed by Burnham to Palmer in September, 1873, and Palmer paid therefor in cash to Burnham for Mrs. Davidson the face of the principal note, $10,000, and the accrued interest. In this purchase 13 DOW. It follows that the appeal must be dismissed ASA C. CALL, Appt., 0. HENRY H. PALMER See S. C., Reporter's ed., 98-103.) [nery, what constitutes—intent—new securityunauthorized acts of agent. thereby rendered usurious. To constitute usury, within the prohibition of Palmer acted for himself without the interven- -Umory-acts of agent of lender; when render 1. Heirickson, 13 Neb., 157. [98] [99] [100] I e ze ved 'tem is a me s supuint Dec. 24. I : mai e iscertained in any སྐྱུགས་ཕུལ་བ་ན་ཚངས་འགྱུར་ ན་ ཡང་གནད་དོན་ འཁྲིག་ LET VITAct nat a rate of inpal for greater than is marter, ter directly or Pranery, he same sball en ents in the hundred umount of such contract De county in which the te paintif shall have sum, without either 3 * 28. Nerang n his chapter shall be El sent the proper assignee fath and vittout notice of any usuri Nevvero inst the usurer the ecure. Fien, 3. 390. Prcell - mom te nasteridion paid by him low tre: The T. Tim Vri ir a uma ess Le amount of the prinP: In T. Viaton, 7 V 257 ritme T nem nut the same may be recovered of Barn. Mses. 5: Timrod & Lodog 1 be worn de poeta con before any court Iowa, 157: Fruleume. Para. It lv 141reen ursdiction. Churman 7. Fuick. 3. & 1. T Temon trat under these sections, names ut auministered by the Supreme Cove of Town, we tenuse of usury was not The Went o Nail Burnham was the money of Mr. Darsan; and the note taken terelor, soos man in the name of Burnhar, maa her zama Conceing that Burnham d. 490: Edwards. B. & N. 351, and wathor, acted a ber are 1 masing the loan, it does ities here nted. Cuthbart▾ H STR00; not follow Ms Davison is chargeable Chaoman Black, 2 B. & AML 588. with making a BALTVis 2ontract. It was said by this court in Bont of Crital States v. Wag gener, 9 Pet 397 347. S. 3. 9. L. ed. 170, 171], "That in constring the usury laws the uniform construction England has been (and it is equally applicable here that, to constitute usury, within the prohibitions of the law, there must be an intention knowingly to contract for or to take usurious interest. *** Where the contract on its face is for legal interest only, there it must be proved that there was some cor tion of rupt agreement or device or shift to cover usury, and that it was in the full contemplation of the The Statute of lows acts upon the original extract or consideration, without reference to the form which that contract may subsequently assume, or the writings by which it is evidenced, Smith. Coopers, 9 Iowa, 383; Garth v. Coop er, 12 Iowa, 383; Burronce ▼. Cook, 17 Iowa,441; Bacon v. Lee, 4 Iows, 494; French v. Ronce, 15 Iowa, 376; Dicely v. Cedar Falls. 21 Iowa, 569. Mr. M. P. Morris, for appellse. Mr. Justice Woods delivered * the court: parties. * There must be an intent to take illegal interest." To the same effect are the cases of Lloyd v. Scott, 4 Pet. 205 [29 U. S. bk. Led. 833]; Condit v. Baldwin, 21 N. Y. 219; and Jones v. Berryhill, 25 Iowa, 289. It is clear, therefore, that Mrs. Davidson cannot be charged with taking or reserving usurious interest, unless she was bound by the acts of her agent, Burnham. But she was not so bound. It is settled that when an agent who is authorized by his principal to lend money for lawful interest exacts for his own benefit more than the lawful rate, without authority or knowledge of his principal, the loan is not thereby rendered usurious. Dagnel v. Wigley, 11 East, 43; Solarteev. Melville, 7 Barn. & C. 427; Barrettov. Snowden, 5 Wend. 181; Condit v. Bald, 21 N. Y., 219; Bell v. Day, 32 N. Y. 165; Conoter v. Van Mater, 18 N. J. Eq. 486; Boers v. Buckingham, 33 Conn. 81; Gokey v. Knapp, 44 Iowa, 32; Wyllis v. Ault, 46 Iowa, 46; Brigham v. Myers, 51 Iowa, 397. In Gokey v. Knapp, ubi supra, the Supreme Court of Iowa said: "Although Danforth may have been the agent of Knapp for the purpose of laning the money, and may have contracted for more than 10 per cent interest, yet the loan was not necessarily usurious. An authority to loan money at a legal rate of interest does not cide, by implication, the authority to loan at an illegal rate. An authority to violate the i will never be presumed. When Danforth eted, in addition to the 10 per cent interest Which was embraced in the note,something for the benefit of himself, he went outside the legitmate purposes of his agency, and as Knapp not authorize it expressly or by implication, be should not be affected thereby." in Brigham v. Myers, 51 Iowa, 397, it was bed to be well settled that when an agent for kating money takes a bonus or commission to himself beyond the legal rate of interest, withthe knowledge, authority or consent of his cipal, it does not affect with usury the loan of the principal." These decisions seem to be founded on plain ples of justice and right; for when two pers, the agent and the borrower, conspire Aber and for their own purposes violate the 4, how can punishment for their acts be justly sed on the innocent third party, the lender? The fact on which stress is laid by counsel defendant, that Burnham in his treaty with (all did not disclose his agency but professed he acting for himself, appears to be an imLara circumstance. The misrepresentation Burnham did not injuriously affect any ff Call, unless it can be said that he was d to know who the real lender was, so as sce himself in a position to plead usury at her. It can hardly be contended that Denalties imposed for a violation of the aws are intended as a reward to the bor Aling to the principles of jurisprudence By administered, and especially as apy the Supreme Court of Iowa under the aw of that State, if suit had been brought Ma Davidson herself to enforce the pay of the note given by Call to Burnham for ber, the defense of usury would have failed. It , therefore, bold as against Palmer. must fail for another reason. For it is settled that where the promisor in a usurious contract makes it the consideration of a new contract with a third person not a party to the original contract, or to the usury paid or reserved upon it, and the new contract is not a contrivance to evade the statutes against usury, the latter is not illegal or usurious. Cuthbart v. Haley, 8 T. R. 390; Bearce v. Barstow, 9 Mass. 48; Powell v Waters, 8 Cow. 669; Kent v. Walton, 7 Wend. 257; Houghton v. Payne, 26 Conn. 396. This rule is recognized by the Supreme Court of Iowa. Thus, in Wendlebone v. Parks, 18 Iowa, 546, it was held in substance that when the maker of a usurious note, which was secured by a deed of trust, borrowed money of a third party to pay the same, and, instead of executing new securities for the money so borrowed, caused the note to be transferred by the payee to the lender, as evidence and security for the new debt, the note was not tainted with usury in the hands of the second holder. The authorities cited are conclusive against Call on both the grounds noticed. As the propositions upon which Palmer relies to defeat the plea of usury have both been sustained by the Supreme Court of Iowa while the present law against usury was in force, it is unnecessary to construe or discuss the statute. The result of the decisions of the Supreme Court of the State is that there is nothing in the statutes of Iowa which, upon the facts of this case, is a bar to the relief demanded by Palmer in his bill. Decree affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. *ANGUS M. CANNON, Piff. in Err., V. UNITED STATES. (See S. C. Reporter's ed. 55-80.) Polygamy-construction of Act of March 22,1882 -indictment, sufficiency of. a habits" with more than one woman, when, holding 1. Under the Act of March 22, 1882, a man "coout to the world two or more women as his wives, by his language or conduct or both, he lives in the same house with them and eats at the table of each portion of the time, although he may not occupy the same bed, sleep in the same room or actually have sexual intercourse with either of them. 2. Objections, that the indictment does not allege that the defendant is a male person and does not allege a cohabitation with the women as wives or as persons held out as wives, cannot be raised after the defendant has pleaded to it, especially as no substantial right was thereby prejudiced. cient to charge the offense in the words of the stat3. In an indictment for a misdemeanor it is suffiute, unless they fail to cover every element of the offense charged. the defendant in this case was unlawful, it cannot 4. While this court can say that the conduct of undertake to indicate in advance what the conduct of a polygamous husband towards his plural wives of the law. must be, in order to conform to the requirements [No. 1169.] Argued Nov. 20, 23, 1885. Decided Dec. 14, 1885. ERROR to the Supreme Court of the Ter ritory of Utar But the defense of usury set up in this suit time been raised and discussed in the parallel case *The question of jurisdiction having for the first 561 [55] The Listory mi facts of the case pearlity of the marriage de oven of be cut. in day 10. So we nu avg amissed the wt if er namiar ase. I ATOMT 1 4. for want otriction T called the mandate and tiamissed he wi erar i hus ase in M- Franklin S. Richarris, or paintf Mr. John Goode, Solicitor-Yen, for te fendant n error. Ir Iratice Blatchford telivered he pin on if he aur: agne Cannon was indicted or to any person by roason of any former marmage which shall have been fissolved by a mat tecree of a competent court: nor to any persua by reason of any former marriage which sha have been pronounced void by a valid decree of a competent court, on the ground of nullity of the marriage contract. Sections 2 to 3 inclusive, of the Act of 1889, ure is follows: et ufect the prosecution or punishment of any "See. That the foregoing provisions shaH fense uready committed against the section amended by the irst section of this Act. and in he District Court of the Turi Jutical Startet in and for the Tentory of Jan. or other place over which the United See. 3. That if any male person, in a TerriFebriar 1985 for a relation of senon or he States have exclusive jurisdiction, hereafter coAct of Congress inproved flaren 2. Sez, Chan. laints with more than one woman, he shall be 47 entitied an act to amend Jerion Feemed pulty of a misdemeanor, and on conThree Hundred and Fitty-Two or he esection hereof shall be punished by a tire of States of the United rates, in Reference 0 not more than $300, or by imprisonment for not Bigamy and for Other Purposes. Stat. # more than ax months: or by both said punishL. 31. Section of the Act mendis erion 1852 nents, in the fiscretion of the court. of the Revised States, which vas a e-enact ment of section if he Act of Suv 1. 12. chan. 1931 Star. at L. 501: and, inter hat the amendment may be understood, he orginal and new sections 1372 are here placed side by side, the parts in each which differ from the other being in italic: Original *Every person huming a husband or wire ing, who marries another, Whether married or angle, in a Territory or other place over which the United States hune exciumare furtaliction, is rulty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonmens for a term not more than five years: but this section shall act extend to any person by reason of any former marriage whose husband or wife by such marriage is absent for five succes give years, and is not known to such person to be living: nor to any per son by reason of any former marriage which has been dissolved by decree of a competent court; nor to any person by reason of any former marriage which has been pronounced void by de Cree of a competent court, on the ground of Jew. “Eva - Jerson eño as Ler TULITIES inucier. angte, and thy man who of Snow v. U. S. reported in book 30, in the order the court: ton of fenses named in sections 1 and 3 of this Act Sec. 4. That counts for any or all of the ofmay be joined in the same information or infitment. Sec. 5. That in any prosecution for bigamy, polygamy or unlawful cohabitation, under any starate of the Caited States, it shall be suffi cient cause of challenge to any person drawn or summoned as a juryman or talesman, first, that he is or has been living in the practice of bramy, polygamy or unlawful cohabitation with more than one woman, or that he is or has been guilty of an offense punishable by either of the foregoing sections, or by section 5359 of the Revised Statutes of the United States, or the Act of July 1, 1862, entitled An Act to Punish and Prevent the Practice of Polygamy in the Territories of the United States and other Places, and Disapproving and Annulling certain Acts of the Legislative Assembly of the Territory of Utah; or, second, that he believes it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman; and any person appearing or offered as a juror or talesman, and challenged on either of the foregoing grounds, may be questioned on his oath as to the existence of any such cause of challenge, and other evidence may be introduced bearing upon the question raised by such challenge; and this question shall be tried by the court. But as to the first ground of challenge before mentioned, the person challenged shall not be bound to answer if he shall say upon his oath that he declines on the ground that his answer may tend to criminate himself; and if he shall answer as to said first ground, his answer shall not be given in evidence in any criminal pros ecution against him for any offense named in sections 1 or 3 of this Act; but if he declines to answer on any ground, he shall be rejected as incompetent. Mr. Justice BLATCHFORD delivered the The decision in Snow v. United States [118 U.S. p. 846), dismissing the writs of error for want of jurisdiction, shows that there was no jurisdiction of the writ of error in this case. As the decision, reported In 116 U. S. 55 [above case], was made at the present term, the judgment rendered on the 14th of December, 1885, affirming the judgment of the Supreme Sec. 6. That the President is hereby authorCourt of the Territory of Utah, is set aside and va-ized to grant amnesty to such classes of offendcated; the mandate is recalled; and the writ of erers guilty of bigamy, polygamy or unlawfu ror is dismissed. cohabitation, before the passage of this Act, True comes. McKenney, Clerk, Sup. Ct. U. s. on such conditions and under such limitations Test: |