The court below, April 14, 1862, confirmed the second or "Turrill survey," without alteration; and from that decree the United States has appealed.

Messrs. Edward Bates, Atty-Gen., and John A. Wills, for appellants.

Mr. Justice Miller delivered the opinion of the court:

This is a question of a survey of a California Mexican grant, of two leagues in quantity, to be located within a larger out boundary.

The area of this larger tract is about three leagues and a third of a league. It resembles

in shape a sack or purse, and the rancho is

hence called Bolsa de San Cayetano.

The counsel for the United States object to the survey upon two principal grounds, namely: that the two leagues of claimant are taken out of the central part of a sack, leaving to the government the remnant in two detached corners, and because the land thus left is not equal in quality to that which the claimant gets. The latter objection does not seem to be sustained by the testimony; for Mr. Turrill, who made the survey, says that the land surveyed to the claimant is of the average quality of the whole of the sack. If there be a difference in quality, it must be too slight to be a subject of consideration here.

JOHN S. PARKER et al., Appts.,

υ.

In the present case the survey is supported: 1. By the fact that it was located as desired by the claimant.

2. That it is in a reasonably compact form. Both of these considerations are prominent among the rules laid down by the Commissioner of the General Land Office for the location

of this class of claims.

3. That it includes two old adobe houses inhabited now and for many years past by the heirs of the original grantee, the present owners of the claim.

If the two leagues were taken from either end of the sack as claimed by the government, the one of these houses must be left out. They were both there when the grant was made, and are, probably, twenty years old. This raises a strong presumption that the grant was intended to cover them both.

These reasons, we think, overbalance the inconvenience of having the surplus left to the United States in two disconnected parcels; especially when one of these parcels contains 660*] *as much as three thousand five hundred acres, and the other about two thousand acres. Besides, in this class of cases, a large discretion must necessarily be left to the surveyor; and while we are not prepared to say that we will not in any case review the exercise of that discretion, we have no hesitation in saying that we do not sit here to determine whether it has been accompanied with the nicest discrimina- | tion, or the highest of wisdom.

The decree of the District Court is affirmed.

relief in equity.

Stewart v. Spencer, 1 Curt. C. C., 157; Heydock v. Stanhope, 1 Curt. C. C., 471; In the Matter of Durfec, 4 R. I., 401; Fuller v. Ives, 6 McLean, 478; see, also, 1 Hare & Wall. Am. Lead. Cas., 17-75.

The transfer of property to Phetteplace & Seagrave, by Edward Seagrave, was a voluntary conveyance, and the execution of the assignment subsequently covering the same property and recognizing existence of the debt due to Phetteplace & Seagrave pretendedly settled by this transfer, is evidence of the fraudulent character of the transfer.

Cathcart v. Robinson, 5 Pet., 264.

Mr. William H. Potter, for respondents: Phetteplace & Seagrave became the bona fide purchasers for the valuable consideration of the bona fide debts of Edward Seagrave; and after such purchase, they were just as much the creditors of Edward Seagrave as the persons and banks were before the purchase.

The law upon this subject of the rights of debtor and creditor is clearly stated in Adler v. Fenton, 24 How., 407, 16 L. ed. 696, see pp. 411-412, the court says:

The authorities are clear that chancery will not interfere to present an insolvent debtor from alienating his property to avoid an existing or prospective debt, even where there is a suit pending to establish it. Moran v. Dawes, Hopk. Ch., 365.

In the same opinion the court quotes with approbation from Lamb v. Stone, 11 Pick., 527; Wellington v. Small, 3 Cush., 146; 21 How., 126, 16 L. ed. 55.

In Rhode Island, assignments with preferences and stipulations for release are valid.

The rule of proof required in equity where actual fraud is charged, is well stated by Mr. Justice Story in Gould v. Gould, 3 Story, 539, 540.

The complainants' bill alleges actual fraud. Failing to prove this, the decree must be for defendants.

Price v. Berrington, 7 Eng. L. & E., 254; Ferraby v. Hobson, 22 Eng. Ch., 255; Glascott v. Lang. Ibid., 310; Mt. Vernon Bank v. Stone, 2 R. I., 129; Fisher v. Boody, 1 Curt. C. C., 206. It is necessary that the transfer of the paper on which complainants brought this suit should he bona fide, as well as absolute, in order to give | jurisdiction to the courts of the United States. Jones v. League, 18 How., 76, 81 (59 U. S., XV., 263); 1 Pars. Cont., pp. 600, 601, and note: Franklin v. Neate, 13 Mees. & W., 481.

Plgee does not acquire absolute title, even by failure of pledgor to pay the debt. Such title is acquired only by what is equivalent to foreclosure.

Brownell v. Hawkins, 4 Barb., 491.

If the assignor could not maintain suit on this claim of complainants in the United States court, then their assignees cannot.

Wilbur v. Almy, 12 How., 180; Sheldon v. Sill, 8 How., 441..

If the complainants are equitable assignees under the above instrument, then, upon the facts proved, they have no standing in this court.

Wilkinson v. Wilkinson, 2 Curt. C. C., 582.

Mr. Justice Nelson delivered the opinion of the court:

This is an appeal from the Circuit Court of the United States for the District of Rhode Island. The bill in this case was filed by the complainants below, the appellants here, as judg ment creditors, to set aside conveyance of the property of the debtor made to hinder and delay the execution of the judgment.

The judgment was recovered in the November Term of the U. S. Circuit Court, 1854, against one Edward Seagrave, for the sum of $60,520.88 and costs, in a suit commenced on the 26th of October previous. Execution was duely issued and part of the debt collected, the remainder still remaining due and unpaid. The conveyances charged to be fraudulent were executed by the judgment debtors, on the 17th of November, 1854, and on the 4th of January, 1855-the first to Phetteplace & Seagrave, a firm in Providence, Rhode Island, of certain real estate and stocks.

The second, an assignment to one Updike, of all his real and personal property in trust for the benefit of creditors—giving certain preferences specified in the assignment.

It appears from the proofs in the case, that in the early part of 1853, Edward Seagrave, the debtor, Merrit & Co., and S. Harris, associated together to speculate in the purchase and sale of wool. the purchases to be made upon the credit of the paper of the parties, to be discounted at the banks. In this way Seagrave's liabilities from acceptance and indorsements amounted, in July, 1853, to some $176,000.

debtedness, he made an arrangement with his associates, by which he sold out his interest in the business to them; and in consideration they would pay all the outstanding paper and indemnify him against the same, he agreed to pay them $33,500. This sum was paid and the indemnity given. These associates failed to take up the paper, and on the 4th of February, 1854, went into insolvency. Seagrave stopped payment of this partnership paper the same day, but continued his individual business until the 4th of January, 1855, when he made the assignment to Updike for the benefit of his creditors. In the fall of 1854, Phetteplace & Seagrave, the defendants below and appellees here, a firm of Providence, as already stated, finding the outstanding paper of the associates in the wool speculation, held by the banks, at a great discount, purchased that paper to the amount of some $45,000, at the rate of from fifteen to twenty cents on the dollar and, afterwards, applied to Edward Seagrave, the judgment debtor, one of the parties to the paper, for payment or security.

The stocks and real estate conveyed for the security and payment of this indebtedness, together with the property assigned to Updike for the benefit of creditors, constitute the subject of the complaint in the bill.

It is insisted, on the part of the complainants, that this outstanding paper against Edward Seagrave was purchased under an arrangement or understanding that he should have the benefit of the difference between the nominal value and the per cent. paid; that this proportion of the stocks and real estate transferred to the purchasers to secure the payment, belong to him, and is held in trust for his bene fit, and that the scheme was contrived for the purpose of hindering and defeating their execution; and further, that the assignment to Updike was a part of the same fraudulent devise.

The case turns upon the answer to be given upon the evidence to this charge in the bill, as it is agreed that, according to the law of Rhode Island, the debtor in insolvent circumstances has a right to prefer creditors in the distribution of his estate, or in the application of it to the payment of his debts.

The charge is denied in the answers, and Edward Seagrave, the debtor, not made a party to the bill, who was called as a witness for the defendants, sustains the answers. He testified that there was no agreement or understanding between him and the firm of Phetteplace & Seagrave that he was to share in the profits arising out of the purchase of this paper; nor had he any interest in the same; nor has he ever received any share of the profits; nor do the purchasers hold any portion of them in trust for his benefit. His testimony upon this point, and which constitutes the main issue in the case, is full and explicit in the denial of any participation, directly or indirectly, in the transaction. The evidence relied on, other side, to overcome the answers of the defendants, and the testimony of this witness, is circumstantial and argumentative.

on the

The court below, on a very full consideration of all the proofs, came to the conclusion that the purchase of the paper by Phetteplace & Seagrave was an independent transaction,

without any agreement or understanding with the debtor; that their title to the paper was absolute and unqualified, and that the debtor had no interest in the same, legal or equitable, present or future, and rendered a decree dismissing the bill. We agree that there is ground of suspicion that the purchase was made by the friends and for the benefit of Edward Seagrave, the debtor, but concur with the court that the 690*] weight of the proofs is otherwise, and the bill properly dismissed. The question upon the assignment to Updike is so intimately connected with the transaction we have just examined, that the conclusion arrived at in the one must control that in the other.

The principal point made against this assign ment is, that the preference in it in favor of Phetteplace & Seagrave for certain debts and liabilities, embrace the outstanding paper which they had purchased, and which was secured by the previous conveyances. But, on looking into the assignment, this interpretation is not warranted. The preference relates to other indebtedness and liabilities.

It is also said that Edward Seagrave embraced in this assignment the purchased outstanding paper which he took up, on giving security to the purchasers. But this was proper, as Merrit & Co., and Harris, who were on the paper, had bound themselves to indemnify Seagrave against it and were, therefore, still liable upon it; and were to the assigns, on the transfer of it to him.

The decree of the court is affirmed.

(See S. C., as Gomez v. U. 8., 1 Wall., 690-702.) Amended decree is final decree-when citation unnecessary incomplete transcript.

Where a decree of the court below was amended,

the amended decree is the final decree from which the time to appeal must be reckoned.

The object of a citation is notice, and where sufficient notice has been given, by a stipulation and motions, it is unnecessary.

Maxwell, in ejectment, where the question arose on the facts on this very case.

The same point was decided in the same way in Gray v. Palmer, by the Supreme Court of California.

Judge Haight, in setting aside the ex parte appeal allowed by him in this case, decided the same question in the same way. The decision of Secretary Smith, ordering a patent to issue, is to the same effect. The decision of Judge Usher, re-affirming that of his predecessor, as to the same effect. In Silsby v. Foote, 20 How., 290, 15 L. ed. 822, the Supreme Court held the same doctrine. But if the time only commenced running on the 5th of February, 1856, when the decree was signed by the judge nunc pro tunc, the five years expired on the 5th of February last.

3d. The appeal claims to have been taken on the 26th of August, 1862, even if it had been taken in time, is a nullity for these reasons.

It not having been taken at the term when the decree was entered, and being obtained ex parte and no citation being signed by the judge or served, a simple order only was entered in the clerk's minutes.

Also by the certificate of the judge.

The authorities on this point are numerous and explicit.

Lloyd v. Alexander, 1 Cranch, 365; The San Pedro, 2 Wheat., 132; Bailiff v. Tipping, 2 Cranch, 406; Brown v. Union Bank of Florida, 4 How., 465; U. S. v. Hodge, 3 How., 534.

In Hogan v. Ross, 9 How., 602, the Supreme Court said that where no citation had been issued or served, the cause must be dismissed.

In Villabolos v. The U. S., 6 How., 81, the court held that an entry of appeal in the clerk's office did not remove the cause; and that where an appeal was not taken in open court at the term at which the decree was ren

dered, in the absence of a citation signed by the judge allowing it, the appeal was a nullity. At the same term in The U. S. v. Curry, 6 How., 106, the same rule was reiterated.

These cases settled the question that a citation was necessary. There not having been any in this case, there was no appeal in fact.

[No. 365.]

Argued April 8, 1864. Decided April 18, 1864.

PPEAL for the District Court of the United

A States for the Southern District of Cali

fornia.

Motion for the dismissal of appeal. The facts are stated in the opinion.

Messrs. R. H. Gillet, J. T. Brady & Eames. for the motion:

1st. The time within which an appeal can be taken in these land cases is five years, as expressly decided in the case of U. S. v. Pacheco, 22 How., 225, 16 L. ed. 336.

2d. The time from which the five years began to run, was the day of entering the decree by the clerk in the minutes of the court, and signed by the judge, to wit: the 5th of June, 1857. This was so held by Judge McKee of the Su preme Court of California, in McCarrahan v.

In the case of Villabolos v. U. S., 6 How., 81, the court said the appellant must prosecute his appeal at the next succeeding term of this court after the appeal.

In The U. S. v. Curry, 6 How., 106, this point was reaffirmed.

In The Virginia v. West, 19 How., 182, 15 L. ed. 591, the above cases were cited and approved and the same principle decided. This point was again decided at the last term in Mesa v. The U. S., 2 Black, 721 (ante, 350). and cases above cited. No transcript was returned and filed in this case at the term next succeeding the appeal.

It follows that in no view of the case can it be truly said that there is an appeal pending.

This is in accordance with decisions of Secretaries Smith and Usher, and of Judge Haight and Judge McKee of the Supreme Court of California.