shown to be the law in such cases, as to the inference which may be made from the face of the bond, of its having been regularly executed by the party having authority to do it, that we are relieved from the task of considering much of the argument made to us by counsel; and from examining the special pleas which were put in by the defendant, or the reasoning of the court upon the third and fourth pleas upon which it rested its judgment for the dismissal of the plaintiff's case. If the contract and bonds are considered in connection with the authority of the Board of Commissioners of Miami County to issue them, it must be obvious that several of the points presented to us by the counsel of the defendant do not arise in the case. For instance, whether the Board of Commissioners of Miami County had power to issue them at the time and for the purpose for which it was done or that the bonds and interest warrants, by having been indorsed to the plaintiff by the Railroad Company were subjected to the Revised Statutes of Indiana, making certain promissory notes, &c., negotiable by indorsement thereon, so as to vest the interest in the contract to the assignee, and permitting the obligor to set up any defense to the obligation against the assignee, that he could have done against the original obligee, or that it was 731*] necessary to them "that the bonds were issued by virtue of a special statute, and if that did not exist, that the bonds may be held to be void. that they were issued by the Commissioners of Miami County, by order or resolution, pursuant to the statute authorizing the County to borrow money, passed at a regular meeting of the Board, to be used by the Peru and Indianapolis Railroad, payable to the Company, or bearer, for a loan to the County, that *the bona [*732 fide holders of the bonds, whether so by indorsement or delivery, had a right to infer that the bonds had been lawfully issued, by which the County of Miami is estopped in a suit for the recovery of the interest, from denying by pleas, that its bonds had been issued to the Peru and Indianapolis Railroad for a loan of money to the County of Miami. We think and adjudge that the recitals in the bonds are conclusive, constituting an estoppel in pais upon the defendants in this suit. In support of this conclusion, we cite the following cases: Guard v. Bradley, 7 Ind., 600; Reeves v. Andrews, 7 Ind., 207; Frances v. Porter, 7 Ind., 213; May v. Johnson, 3 Ind., 448; Trimble v. State, 4 Blackf., 435; Hashaw v. Hashaw, 8 Blackf., 258; Ryan v. Valandingham, 7 Ind., 416; Amey v. Allegheny City, 24 How., 375; Zabriskie v. C. C. & C. R. R. Co., 23 How., 381; Society of Saving v. City of New London, 29 Conn., 103; Hill v. Caillovel, 1 Ves., 123; State v. Halloway, 8 Blackf., 47. It is the opinion of this court, that the defendant is estopped from setting up the defenses taken, as set forth in the transcript of the record of this case, and that the judgment of the It is true that all of these points were as well court below sustaining the demurrer should be, argued by the counsel of the defendants as the and is hereby reversed and annulled, and that circumstances of the case permitted, but in the case should be remanded to that court, with every instance, either of argument or of plead-directions to award a venire facias de novo. ing, the point of estoppel, as made by the plaintiff's counsel in the court below, and renewed here by him with vigor by the citation of many cases, was not directly met by the counsel of the defendant. The first point of the plaintiff's counsel was, that even if the bonds had been issued irregularly, and not in strict comformity with the power of the County to borrow money, that the defendant is, nevertheless, estopped by the bonds themselves, which, on their face, express that they were issued for a loan of the amount to the County, as authorized by the Act of the General Assembly to borrow money, and that such bonds being habitually received and passed as commercial securities, and being bona fide in the hands of the plaintiff, that they were entitled to recover the amount of interest sued for, notwithstanding there might be equities between the original parties to the transaction. It is not necessary for us to follow out the plaintiff's argument in this particular, thinking it, as we do, conclusive. We think that the bonds in this case, with interest warrants annexed, are commercial securities, though they are not in the accustomed forms of promissory notes or bills of exchange; that the parties intended them to be passed from hand to hand to raise money upon them, so that a full title was intended to be conferred on any person who became the legal holder of them, and that the original maker, under such circumstances, has no equity to prevent the recovery of the interest. But the real point in this case, as made by the counsel of the plaintiff in error, and sustained in argument by numerous adjudicated cases, was, that as it is declared in the bonds *GREENE C. BRONSON and James T. [*524 Soutter, Trustees, etc., Appts., v. THE LA CROSSE & MILWAUKEE RAIL- (See S. C. 2 Black, 524-528.) Creditors of railroad company cannot intervene in action by other creditors want of notice, cured by appearance-general creditor cannot interfere in contests between his debtors and third parties. Creditors of a railroad company and purchasers of part of the road, stock and franchises, cannot intervene, for the purpose of lessening the amount of the decree, in another action, brought by other creditors. Where a judgment creditor, a necessary party and having lien, had no notice of the pendency of the suit, this is cured by his appearing by his attorney and consenting that a decree might be rendered pursuant to a prayer in the bill. A general creditor, having no specific llen, has no right to interfere in the contest between his debtor and third parties, especially in an appellate tribunal. Motion on behalf of Isaac Seymour, F. P. James and N. A. Cowdrey, for leave to intervene and have the appeal dismissed. The substance of the papers on which this motion was based, is stated by the court. Messrs. J. S. Black and Gillet, in support of the motion. Messrs. T. Ewing and J. M. Carlisle, in opposition thereto. Mr. Justice Davis delivered the opinion of the court: F. P. James, Isaac Seymour and N. A. Cowdrey ask leave to intervene in this cause, and to dismiss the appeal, and predicate their motion on two affidavits of F. P. James. The first affidavit states, substantially, that on the 31st of December, 1856, the La Crosse and Milwaukee Railroad Company executed a mortgage on the western division of their road, lying between Portage and La Crosse, to Greene C. Bronson, James A. Soutter, and Shepard Knapp, as trustees, to secure certain bonds, which mortgage was afterwards foreclosed in the District Court of Wisconsin, and the mortgaged property sold, and purchased by the parties asking to intervene; that the same Railroad Company, on the 17th day of August, 1857, 526*]executed another *mortgage to these complainants, Bronson and Soutter, on the eastern division of their road, lying between Portage and Milwaukee, to secure certain other bonds; that suit was also brought on said mortgage in the District Court of Wisconsin, where a decree was passed on the 13th day of January, 1862, for one half of the face of the bonds, from which decree an appeal was taken by Bronson and Soutter to this court; and that the parties to the suit have entered into fraudulent stipulations to reform the decree rendered below, so that the bonds will be paid in full, and that James Cowdrey and Seymour, as purchasers under the first mortgage, will be injured if the decree is thus reformed. power the mortgage of December 31st, 1856, on the western division, and the mortgage of August 17th, 1857, on the eastern division were given. These mortgages were executed to secure specific liens on different parts of the road, and the bondholders evidently relied on these liens alone *for their security. Separate [*527 suits were brought at different times to foreclose these mortgages, and the parties in one suit were not, necessarily, parties in the other. The right to intervene as made by the first affidavit rests solely on the ground that James and his associates were purchasers of the western division of the road, which, as they insist, included "the personal property, machinery, rolling stock, franchises, rights and privileges of the entire road." This court cannot in this suit decide whether the construction contended for by these parties as to the extent of their purchase is correct or not. Under the pleadings, no question is or could have been raised as to what property is covered by the mortgage deed. The controversy in the court below was whether there should be a decree nisi for any amount, and if so, how much. The court, in fixing the amount due on the mortgage, estimated the bonds not at par, but at the rate of fifty cents on the dollar, and decreed accordingly, and the complainants below appealed. It is not perceived how the stipulation to reform the decree can affect the right of James & Co. to the claim which they advance. If, under their purchase, they take the rolling stock and franchises of the whole road, what concern is to them whether the decree is for $500,000, or $1,000,000? Such a right is surely not dependent on the amount of the decree. But it is claimed, in the second affidavit, that Bouton, a judgment creditor, having lien, and necessarily a party, had no notice of the pendency of this suit. The answer to this statement is, that the record informs us (p. 298) that Bouton did appear by attorney, and consented that a decree might be rendered pursuant to the prayer in the bill. portion of the bonds secured by the lien of the first mortgage, insists that the mortgage is an insufficient security, and that they are, therefore, interested in lessening the amount of the decree to be rendered in this cause. Every creditor is of course concerned that his debtor should reduce his obligations. The less the debtor owes the greater his ability to pay. The second affidavit states that Nathaniel S. Bouton, on the 5th day of April, 1859, recovered One other ground remains on which the right a judgment in the same District Court for up to intervene is placed that of general credwards of $7,000 against the La Crosse and Mil-itors. James and his associates, owning a large waukee Railroad Company, which judgment was assigned to F. P. James & Co., and was a lien when this suit was instituted, and that neither Bouton nor his assignees were notified of the pendency of these proceedings; that there were issued under the mortgage of December 31st, 1856, bonds to the nominal or par value of $4,000,000, the greater portion of which are held by James and his associates in their own right or in trust for others, and that they have by the advice of counsel determined to abandon their purchase and ask for a resale of the whole property mortgaged by the deed of December 31st, 1856. *But was it ever seriously maintained [*528 that a general creditor, having no specific lien, had a right to interfere in the contests between his debtor and third parties? If the general creditors of a mortgagor are suffered to intervene in an appellate tribunal, this court would Have James, Seymour and Cowdrey a right become the triers of questions of fact outside of to intervene in this cause, to make a motion to the record, and that, too, on ex parte affidavits dismiss this appeal, or for any other purpose?-by no means the best mode of ascertaining The La Crosse and Milwaukee Railroad is a Corporation created by the laws of Wisconsin to build a continuous line of railroad from the City of Milwaukee, on Lake Michigan, to La Crosse, on the Mississippi River. Power was given to the Company to mortgage separate portions of their road, and in execution of that truth. If the right was conceded to one creditor, it would have to be to another, and where the creditors are numerous, as in the case of railroad bondholders, the exercise of the right would lead to great embarrassment. If, as is charged, the parties to this suit have made agreements in fraud of the law, or rights | claimed to share in that distribution. But the court cannot lay down any general rule of practice by which it will be governed, for each case must depend on its own circum stances. The motion is overruled. 539*] *ADAM OGILVIE, Horatio J. Angle and William St. John, of Muscatine, and citizens of the State of Iowa, Traders in Partnership, under the Firm of Ogilvie, Angle & Co. (and upwards of twenty others), Appts., v. THE KNOX INSURANCE COMPANY and Levi Sparks, Peter Myers, and forty-one others. (See 8. C. 2 Black, 539-541.) Decrce, when not final master's report - exceptions to. A decree of a circuit court, that all the moneys recovered, under a decree made at a prior term, be After the assets are collected, so that the master may ascertain the amount to be distributed, the question of distribution will be properly raised and decided, on exceptions to the master's report. The circuit court will then be in a condition to make a final decree, which can be reviewed by this court, but not till then. distributed, is not a final decree. Argued Feb. 2, 1863. A Decided Feb. 16, 1863. PPEAL from the Circuit Court of the United This decree appealed from is a final decree. It leaves nothing further to be done on the merits: they are finally settled. No equity has been reserved to be hereafter disposed of by the court. Whatever there remains to do, is mere ministerial or clerical duty, which is wholly unconnected with the merits. The rights of the complainants against the defendants were determined by this court, and are declared in the final decree which has not been appealed from. The remaining question was in relation to the distribution. In this the defendants had no interest. It arose among those who NOTE. What is "final decree" or judgment of state or other court from which appeal lies-see notes, 5 L. ed. U. S. 302; 17 C. C. A. 238; 28 C. C. A. 482; 32 C. C. A. 475. The original complainants (or those represented by Mr. Judah) insisted: first, that the respondents were not legally complainants; and second, it they were, that not having been entitled to file a bill when the original was filed, they had no lien, and could not come in and share with them, and lessen the amount to which their vigilance entitled them. The court overruled both objections, and decreed to make distribution, permitting them to share, in proportion to the amount of their debts, equally with those whose labors had secured the fund. This decree covered the whole merits. It is this appropriation of the fund, of which the appellants complain. This case comes strictly within the decision in Beebe v. Russell, 19 How., 283; and the cases therein referred to. It follows that this court has jurisdiction, and the decree must be re versed. Messrs. S. B. Gookins and R. Crawford, for appellees. Mr. Justice Grier delivered the opinion of the court: When this case came before us on a former occasion (see Ogilvie v. Knox Ins. Co., [*540 22 How., 380) the decree of the circuit court dismissing the bill was reversed, and the record remanded, with instructions to that court. to enter a decree for the complainants against the respondents, severally, for such amount as should appear was due and unpaid by each of them on their several shares of the capital stock of the Knox Insurance Company, and to have such other and further proceedings as to justice and right might appertain. At the May Term, 1860, of the circuit court, a decree was entered, in conformity with the judgment of this court, ascertaining the amount of the judgments, due by the Insurance Company to the several complainants, and the several amounts due by each of the stockholders, respondents to the Company. At the next November Term divers other creditors of the Company filed their petitions, setting forth that they also had become judgment creditors of the Company, and praying to be made parties to the bill, and suggesting that there were other persons indebted to the Company "whose indebtedness ought to be paid for the benefit of the petitioners;" that the amount found to be due from those against whom a decree has already been rendered was insufficient to liquidate the claim of the petitioners and other parties entitled to participate in the distribution of said funds; and praying that a receiver might be appointed to receive and collect from the persons so indebted the amounts due by them respectively, &c., &c. The court then appointed a receiver, according to the request of petitioners. But before the funds of the Company were collected, on the 7th of December, the court entered a decree that all the moneys recovered or to be recovered under the decree made at the last term be distributed among the original complainants and the several persons who had filed their petitions, praying to be made parties, complainants, &c., &c., and appointing a master to state an account, &c. The appellants contend that this decree is erroneous and unjust to the original petitioners. * JOHN W. DEKRAFFT, Appt., v. SAMUEL CHASE BARNEY. (See S. C. 2 Black, 704-714.) Jurisdiction, dependent on value-guardianship of minors, not within such jurisdiction. 22d section of the judiciary act of 1789, the matter In order to give this court jurisdiction under the in dispute must be money or some right, the value of which can be calculated and ascertained in money. This may possibly be found to be true when the proper time comes to have it reviewed. But the appeal, as well as the decree, is premature. 541*] There is no final decree in the case. After the assets are all collected by the Receiver, so that the master may ascertain the amount to be distributed, the question now proposed will be properly raised, and decided on exceptions to the master's report. That report should state the amount of assets to be distributed, the amount collected from the original defendants, also the other amounts collected by the receiver from persons not in the decree; whether the amounts collected from the parties respondent are sufficient to pay each of the orig inal parties complainant; if not, how much to each; how much other assets have been collected by the receiver, and how much would be coming to each creditor, on the hypothesis that APPEAL from the District Court of the all the assets are to be divided among all the creditors equally. With these facts ascertained, the court will be in a condition to make a final decree, which can be reviewed by this court, but not till then. The appeal is, therefore, premature, and must be dismissed. MARIA ANTONIA MESA, Claimant, and v. THE UNITED STATES. (See S. C. 2 Black, 721, 722.) erty of children is the only matter in dispute, the United States for the District of Columbia. Motion to dismiss. The case is stated in the opinion of the court and in the brief for the appellee. in support of the motion: The appellant, by two petitions filed in the Orphans' Court of this District, on the 2d of October, 1860, alleged that, by reason of a decree of divorce rendered by the District Court of Jasper County, Iowa, on the 18th day of September, 1860, divorcing from the appellee his wife, Mary DeKrafft Barney, since deceased, and allotting the custody and control of their infant children to the latter, the appellee was not entitled to the guardianship of the persons and estates of said infant children; and that, even if so entitled, the appellee was an unfit Where transcript is not filed in time, appeal person to have the custody of the children and dismissed. This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of California, on the motion of Mr. Gillet, of counsel for the intervener, to dismiss this appeal because the said transcript was not filed during the term next succeeding the appeal, and the same was argued by counsel; on consideration whereof, it is the opinion of this court, that the motion should be granted, on the ground that the appeal had not been prosecuted in the manner directed, and within the time limited by the Act of Congress by filing the transcript in this court during the next succeeding term as aforesaid. It is, therefore, now here ordered and decreed by this court, that this appeal be, and the same is hereby dismissed. Per Mr. Chief Justice Taney. their estates, and ought to be removed; and the petitions prayed the appointment of some suitable guardian to take charge of the children and their estates. The answers of the appellee to these petitions filed Nov. 3, 1860, and Sept. 11, 1861, deny the validity of the alleged divorce, because the appellee was not a party to the proceedings whereand because said decree was obtained by fraud. the decree was to have been The answers further denied the alleged unfitness of the appellee to act as guardian, and pleaded to the jurisdiction of the court to remove a guardian by nature. The judge of the Orphans' Court delivered his opinion, in which he held, that by the 4th article of the Constitution of the United States, sec. 1, and the Acts of Congress passed in pursuance thereof, the decree of the District Court Jasper County was final and conclusive, and not only divorced Mrs. Barney from her husband, but also divorced the latter from his children, after the death of Mrs. Barney, as well as during her life. Another position assumed by the Orphans' Court was that as Edward DeKrafft, the father of Mrs. Barney, by his will dated April 15, 1833, devised to his daughter for her sole and separate use, the real estate which has since descended to her children, her husband could not be guardian of his own NOTE. Jurisdiction of U. S. Supreme Court dependent on amount; interest cannot be added to give jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy-see note to Gordon v. Ogden, 7 L. ed. U. S. 592. children and their property. The court then rendered a decree, appointing Harvey Lindsley guardian of the persons and estates of the children. sons, and did not continue until the infant attained his majority. The abrogation of some of the feudal rights and prerogatives necessarily annulled some of these species of guardianship, and the Statute of 12 Car. II., ch. 24, authorizing a father, by will or deed, to appoint a guardian, such guardian might be continued until the infant at The court will find this subject fully treated in Co. Litt., 106 a, sec. 123; Hag. n.; ad idem, 67, 68; 2 Fonbl., 240, 244. From this decree an appeal was prayed by the appellee, and at October Term, 1862, the Circuit Court of this District reversed the decree of the said Orphans' Court, with directions to cite the said Samuel C. Barney, Jr., Ed-tained the age of 21. ward D. Barney, Hebe G. Barney and Clayonia Barney, the minor children of the said Samuel C. Barney, for the performance of his trust as natural guardian of the estate of the said infant children; and upon his neglect or refusal so to do, within a reasonable time to be fixed by the court, then, in its discretion, to appoint some fit and proper person as guardian to take care of and manage the estate and property of said infants, in the manner prescribed by law. John DeKrafft appealed to this court. It is submitted that said appeal should be dismissed for the want of jurisdiction. If these views be correct, it necessarily results that the matter in controversy in this case is not, as the learned counsel contends, the simple "right of a father to the custody, comfort and society of his children." Even were this the real aspect and character of the case, it by no means follows that this court is incompetent to exercise an appellate jurisdiction. matter in dispute is of the value of $1,000, has received a judicial construction in this court. Lee v. Lee, 8 Pet., 44. The language of the Act of April 2, 1816, It must be admitted that the right of revision which limits the right of appeal from the cirexists only when questions of property are in-cuit court of this district to cases in which the volved. Such is the only standard known to the law. By the Constitution of the United States, the appellate jurisdiction of this court exists only when it is conferred by Acts of Congress. The language of those Acts is plain and unambiguous: the matter in dispute must be of the value of $1,000. The test of jurisdiction is a money and property test. It was the case of a petition for freedom. On p. 8 the court says: "The matter in dispute is the freedom of the petitioners. The judgment of the court below is against their claims to freedom. The matter in dispute is, thereApplying this test to the present case, what fore, to the plaintiffs in error, the value of their is the value of the matter in dispute? It is a freedom, and that is not susceptible of pecuncontroversy as to the right of a father to the iary valuation." The court entertained no custody, comfort and society of his children. | doubt of its jurisdiction. The pretensions of the appellant, as set forth in his petitions filed in the Orphans' Court, are that the appellee was deprived of this right by the decree of the Iowa Court, or if not so deprived of it, ought to be by the Orphans' Court. In either case the matter in dispute is the right of the father. What is the value of that right? It is plain that it cannot be computed in money; it is not the subject of pecuniary estimation. It is, in no sense, a money or property right; and hence it is not within the grant of appellate jurisdic tion to this court. Barry v. Mercein, 5 How., 103; Grant v. McKee, 1 Pet., 248; Ritchie v. Mauro, 2 Pet., 243; Scott v. Lunt, 6 Pet., 349; Ross v. Prentiss, 3 How., 772; U. S..v. Addison, 22 How., 174, 181. Messrs. Richard S. Coxe and M. Blount, for appellant, in opposition to the motion: In the order of the circuit court not a word is said of the guardianship of the persons of the children, or of their custody, comfort or society. The appellee is to be cited to give bond for the performance of his trust as natural guardian of the estate of the children, and upon his neglect or refusal, then to appoint a fit and proper person to take care of and manage the estate and property of the infants. It may well be doubted whether the phrase "natural guardian of an estate" is not utterly unknown in the law. In the complicated system of the English Common Law, there was a variety of guardians -by nature, by nurture, in socage, chivalry, &c. The father was guardian by nature, but that guardianship extended only over the per If, in this case, on the part of the appellee, the matter in controversy was the right of the father to the "custody, comfort and society of his children," as is contended, it is at least equally apparent that, on the other side, the case involves (so far as a guardian can control, mismanage or impair) the estate of his wards; the misapplication and misappropriation of the income resulting from it; their maintenance and support; their domestic, family and religious education and training, either by precept or example; considerations of infinitely weightier importance than any of a purely pecuniary character. Mr. Chief Justice Taney delivered the opinion of the court: This case cannot be distinguished from the case of Barry v. Mercein, 5 How., 103. The controversy in that case was between a husband and his divorced wife, respecting the guardianship of a child of the marriage who was still an infant. And They were living apart, and each of them claimed the right to the guardianship. after full argument, the court held that in order to give this court jurisdiction under the 22d section of the Judiciary Act of Sept. 24, 1789, ch. 20 (1 Stat., 73), the matter in dispute must be money, or some right, the value of which could be calculated and ascertained in money. And as the matter in controversy between the parties was not money, nor a right which could be measured by money, but was a contest between the father and mother of the infant upon other considerations, the appeal was dismissed for want of jurisdiction. |