Territory of Nevada was admitted into the Union as a State. The Act of Congress of March, 1864, admitting the Territory, contains no provision for the disposal of the pending cases in this court on writ of error, or appeal from the territorial courts. The defendants in error moved to dismiss the writs on the authority of the decisions of this court in Hunt v. Palao, 4 How., 589, and of Benner v. Porter, 9 How., 235; adjudging that this court possessed no power over the case without further legislation of Congress, for the reason that the territorial court, in which the judgment was rendered, no longer existed. The hearing of this motion was postponed, in order that the omission to provide for such cases in the original Act might be supplied by further legislation of Congress. Since that time, the Act of the 27th of February, 1865, has been passed, "Providing for a Circuit Court of the United States for the District of Nevada," etc. ary, 1848, chapter 12, which provides for cases pending in the supreme or superior court of any Territory thereafter admitted as a State, made no provision for cases pending in this court on writ of error or appeal from a Territorial Court. In the case just mentioned, we have decided that it required the concurrent legisla tion of Congress and the State Legislature, in cases of appellate state jurisdiction, to transfer such cases from the old to the new government. The Act of Congress, admitting the State of Nevada, omitted to make such provision, although the Constitution of Nevada had provided for their reception. Now, it has not been and cannot be denied, that if the provisions of the Act now under consideration had been inserted in that Act, the jurisdiction of this court to decide this case could not have been questioned. By this omission, cases like the present were left in a very anomalous situation. The State could not, proprio vigore, transfer to its courts the jurisdiction of a case whose record was removed to this court, without the concurrent_action of Congress. Until such action was taken the case was suspended, and the parties left to renew their litigation in the state tribunal. What good reason can be given why Congress should not remove the impediment which suspended the remedy in this case between two tribunals, neither of which could afford relief? What obstacle was in the way of legislation to supply the omission to make provision for such cases in the original Act? If it comes within the category of retrospective legislation, as has been argued, we find nothing in the Constitution The 8th section of this Act provides: that “All cases of appeal or writ of error heretofore prosecuted and now pending in the Supreme Court of the United States, upon any record from the Supreme Court of the Territory of Nevada, may be heard and determined by the Supreme Court of the United States; and the mandate of execution or of further proceedings. shall be directed by the Supreme Court of the United States to the Circuit Court of the United States for the District of Nevada, or to the Supreme Court of the State of Nevada, as the nature of said appeal or writ of error may require, and each of these courts shall be the successor of the Supreme Court of the Nevada Ter-limiting the power of Congress to amend or corritory, as to all such cases, with full power to hear and determine the same, and to award mesne or final process thereon." It is objected to the Act of the 27th Feb., 1865, ch. 64 (15 Stat., 440), that it is ineffectual for the purpose intended by it; that it is a retrospective Act interfering directly with vested rights, that the result of maintaining it would be to disturb and impair judgments which, at the time of its passage, were final and absolute; that the powers of Congress are strictly legislative, and this is an exercise of judicial power which Congress is not competent to exercise. But we are of opinion that these objections are not well founded. The extinction of the Territorial Government, and conversion of the Territory into a State under our peculiar institutions, necessarily produce some anomalous results and questions which cannot be solved by precedents from without. It cannot be disputed that Congress has the exclusive power of legislation in and over the Territories and, consequently, that the Supreme Court has appellate jurisdiction over the courts established therein, "Under such regulations as Congress may make." Const., art. 3. In the case of Benner v. Porter, 9 How., 235, it is said: "The Territorial Courts were the courts of the General Government, and the records in the custody of their clerks were the records of that government; and it would seem to follow, necessarily, from the premises that no one 174*] *could legally take possession or custody of the same without the assent, express or implied, of Congress." The Act of 22d of Febru rect omissions in previous Acts. It is well set- [*175 The passage of the Act now in question was absolutely necessary to remove an impediment in the way of any legal proceeding in the case. The omission to provide for this accidental impediment to the action of this court, did not necessarily amount to the affirmance of the judgment, and it is hard to perceive what vested right the defendant in error had in having this case suspended between two tribunals, neither of which could take jurisdiction of it; or the value of such a right, if he was vested with it. If either party could be said to have a vested right, it was plaintiff in error, who had legally brought his case to this court for review, and whose remedy had been suspended by an accident or circumstance, over which he had no control. If the judgment below was erroneous, the plaintiff in error had a moral right at least to have it set aside, and the defendant is only claiming a vested right in a wrong judgment. "The truth is," says Chief Justice Parker, in Foster v. Essex Bank, 16 Mass., 245, "there is no such thing as a vested right to do wrong, and the Legislature which, in its Acts, not expressly authorized by the v. Constitution, limits itself to correcting mis- Ex parte ALEXANDER FLEMING, in the takes and to providing remedies for the further- Matter of Soutter et al., Survivors, etc., ance of justice, cannot be charged with violating its duty, or exceeding its authority." See THE LA CROSSE & MILWAUKEE R. R. CO. Rich v. Flanders, 39 N. H., 325. Such Acts are of a remedial character and are peculiar subjects of legislation. They are not liable to the imputation of being assumptions of judicial power. et al. (See S. C., 2 Wall., 759-762.) Purchase of railroad bonds, after foreclosure sale, cannot set it aside. After the sale of a railroad on foreclosure of a mortgage, one who had no interest in the matter at the time of the sale and confirmation, but who alleges that he subsequently became the equitable owner of some of the bonds secured by the mortgage that was foreclosed, cannot interfere to set aside the sale. The constitutional difficulty attempted to be raised on the argument, that Congress cannot authorize this court to issue a mandate to a state court in a mere matter of state jurisdiction, is factitious and imaginary. It is founded on the assumption, that all the questions which we have heretofore decided are contrary to law, and is but a repetition of the former objections which have been overruled by the court under another form of expression. For if it be 176*] true, as we *have shown, that Congress M of the United States for the District of alone had the power of disposing of the territorial records, and providing for the further remedy in the newly organized courts-if it requires the concurrent legislation of both Congress and the State to dispose of the cases in the peculiar predicament in which this case was heard-if Congress had, as we have shown, the power to remove the impediments to its decision, and remit it to a state court authorized by the constitution of the State to take cognizance of it, they must necessarily regulate the conditions of its removal, so that the parties may have their just remedy respectively. If a state tribunal could not take possession of the record of a court removed legally to this court, nor exercise jurisdiction in the case without authority of Congress (as we have decided), without the legislation of Congress, they must necessarily accept and exercise it subject to the conditions imposed by the Act which authorizes them to receive the record. This court would have the same right to issue its mandate as in cases where we have jurisdiction over the decisions of the state courts, under the 25th section of the Judiciary Act, Sept. 24, 1789 (1 Stat., 73), and for the same reasons-because we have ju risdiction to hear and decide the case. Having disposed of the question of jurisdiction, the case presents no difficulty. As to the case made on the motion for a new trial, our decision has always been, that the granting or refusing a new trial is a matter of discretion with the court below, which we cannot review on writ of error. The single bill of exceptions in the case is to the refusal of the court to receive certain letters in evidence. The defendants were charged to have been partners of one George N. Shaw, or to have held themselves out to the public as such. This was the only issue in the case. To rebut the plaintiff's proof, the defendants of fered a correspondence between themselves, and some letters to them by one Ira Eaton, their agent. It is hard to perceive on what grounds the parties should give their private conversations or correspondence with one another or their agent to establish their own case, or show that they had not held themselves out to the 177*] public as partners of the deceased. The case requires no further remark. Let judgment of affirmance be entered in the case, and a statement of this decision be certified to the Supreme Court of Nevada. [No. 3.] Argued Feb. 17, 1865. Decided Mar. 10, 1865. OTION for mandamus to the Circuit Court Wisconsin. The above suit was commenced by a bill of complaint exhibited in the district court by Bronson, Soutter and Knapp, trustees, to foreclose a mortgage given by the Railroad Company, to secure bonds to the amount of $4,000,000. Decree of foreclosure and sale was rendered in the district court, January 13, 1862. October 1, 1862, the suit was transferred to the circuit court by the Act of Congress. 12 Stat. at L., 576. A sale was had after the suit was transferred to the circuit court, was reported to the circuit court which set aside the sale and ordered re sale, which took place under the order of the circuit court on the 25th April, 1863, but the Marshal has never made report of this sale to the circuit court. Alexander Fleming, an owner of bonds secured by the mortgage, applied to the circuit court to grant a rule on the Marshal to report this sale. This application was made after the decision of this court, construing the Acts of Congress upon this subject. Bronson v. La Crosse Railroad Co., 1 Wall., 405 [ante, 616], and was denied upon the ground that a bondholder, not a party by name to the suit, could not make it. West v. Randall, 2 Mason, 181; Hallett v. Hallett, 2 Paige, 15; Fish v. Howland, 1 Paige, 23. This case, however, falls within an exception to the rule, that where the parties are so numerous that they cannot conveniently be named, a suit may be brought by one or more, or by the trustee for the benefit of all. Beatty v. Kurtz, 2 Pet., 566; Stevenson v. Austin, 3 Met., 474; Shaw v. Norfolk Co. R. R. Co., 5 Gray, 162. Now, what relation to the suit do these bond holders sustain, whose interests will be bound NOTE. When mandamus will issue. McCluny v. Silliman, 4 L. ed. U. S. 263. See note to by the decree? Are they parties, or are they strangers? It is submitted that in all those cases where a few plaintiffs prosecute a suit on behalf of themselves and others, those who are represented by the plaintiffs and bound by the decree, are, in effect, parties to the suit; may rehear the cause, appeal from the decree, or apply to have it executed. Story, Eq. Pl., sec. 99, and notes; Adair v. The New River Co., 11 Ves., 444; Giffard v. Hort, 1 Sch. & Lef., 409; Leigh v. Thomas, 2 Ves., Sr., 312; Joe v. Wirtz, 1 Wash. C. C., 417; Thompson v. Brown, 4 Johns. Ch., 643; Paxton v. Douglas, 8 Ves., 520; Ross v. Crary, 1 Paige, 417, and notes; Meux v. Maltby, 2 Swanst., 277; Good v. Blewitt, 13 Ves., 397; 1 Barb. Ch. Pr., 579. by him had been deposited for a specific purpose with Seymour and others, as trustees and attorneys, by Henry E. Weed, who had received a negotiable certificate or receipt, evidencing title to the bonds or their proceeds to be in the holder or bearer of said certificate or receipt, and had therein remitted his title to the said bonds to the new Corporation to be formed. Fleming does not allege that he is the owner or bearer of said certificate or receipt. The receipt or certificate was issued under an agreement entitling Weed or bearer, upon its surrender to Seymour and other, to receive the bonds and shares therein specified of the Milwaukee and St. Paul Railway Company, an entirely different security from that deposited, made and issued by distinct and different cor If cestuis que trust should not be made par-porations. ties to the suit to which they were necessary parties, and their interests are apparent, a court of equity to prevent delay, will allow them to bring forward their claims or rights by petition. Wilford, Eq. Pl., 73; Drew v. Harman, 5 Price, 324. It was the duty of the Marshal to report the sale of April 25, 1862, to the circuit court, and any person interested may apply to the court for a rule to compel it; provided the circuit court from and after the sale had jurisdiction of the cause. In Bronson v. La Crosse R. R. Co., 1 Wall., 405 (ante, 616), this court has settled the construction to be given to the Act of Congress Creating the Circuit Court, and the supplemental Act of March 4th, 1863, authorizing the district court to execute "final judgments and decrees." 12 Stat. at L., 576, 807. The authority given by Weed to Seymour and others was accompanied by a delivery of the bonds in question to Seymour and others, and has been fully executed by them, and was in part as follows: "To do any and all things which they deemed for the benefit of the assessments (i. e., the holders of bonds deposited with them) as fully as they might do if personally present." "They are hereby authorized in relation to all matters, exigencies and things not herein specially provided for, to exercise a liberal discretion in the premises." In pursuance of this authority, Seymour and others, through Pratt and White, have used the identical bonds claimed by Fleming in purchasing the mortgaged premises, that is, the railread, and Weed or bearer has become entitled to new bonds and shares as set out in the receipt given, viz.: in the Milwaukee and St. Paul Railway Company. Now, it is well settled that the sale of mort- This authority to Seymour and others, as exgaged premises by the Marshal is of no effect ercised and used by them, has given a large until the sale be confirmed by the court. number of other persons a vested pecuniary inAnderson v. Foulke, 2 Har. & G., 346; Cum-terest in the powers as exercised in the purmings v. McCullough, 5 Ala., 324; Busey v. Hardin, 2 B. Mon., 407. And this court has decided that the confirmation of the sale in foreclosure cause, is a judicial act from which an appeal may be taken to the Supreme Court. Orchard's case, not reported; Blossom's case, 1 Wall., 655 (ante, 673). If Fleming was a proper person to make the application, and it ought to have been granted by the circuit court, this court will issue a mandamus which will be in the nature of a procedendo, to compel that court to grant the petition and make an order upon the report of sale confirming or setting the sale aside. Livingston v. Dorgenois, 7 Cranch, 577; Ex parte Bradstreet, 7 Pet., 634; Stafford v. Union Bank, 17 How., 275, 15 L. ed. 101. If the courts should be of opinion that, for any reason, the writ prayed cannot be granted, we respectfully pray the court to decide the questions of law involved in the application. Ex parte Davenport, 6 Pet., 661; Ex parte Whitney, 13 Pet., 404; Bronson v. R. R. Co., 1 Wall., 405 (ante, 616). Mr. N. A. Cowdrey, as amicus curia, in opposition to the motion: Petition of Fleming shows upon its face that he is neither a bondholder in his own right nor an equitable bondholder. The bonds claimed chase of property, amounting nominally to over $4,000,000, organizing a new corporation which has acquired and issued securities for two hundred and seventy-three miles of railroad, with its equipment, represented by bonds and shares to the amount of near $10,000,000. Mr. Justice Miller delivered the opinion of the court: This is an application for a mandamus to the judges of the Circuit Court for the District of Wisconsin, commanding them to make a rule on the Marshal of said district to report to said court a sale of the Western Division of the La Crosse and Milwaukee Railroad, which he had made under a decree of the District Court of the United States for said district. The petitioner had made an application to the circuit court for the rule, which had been overruled. The sale had been reported by the Marshal to the district court, and by that court had been confirmed; but the petitioner conceived that the jurisdiction to confirm or set aside the sale had passed to the circuit court by the Act of July, 1862, creating a circuit court for that district, and as he had some objections to the sale, he seeks to raise the question as to which court should act upon the Marshal's report. The petitioner does not show that he has such an interest in the matter as would justify the ANN court to permit his to interfere. In the present | purchased as proposed. These bonds were used petition he refers to his petition to the circuit court on that subject. in the purchase. The sale was confirmed by the district court and the purchasers placed in possession. Long after all this was done, as the petitioner alleges, by purchase from Weed he became the equitable owner of the bonds. Who was the legal owner, and what were the relative rights of the equitable and legal owners, or how any one could be the owner when the bond had been canceled or absorbed in paying for the road, we are not informed. In that petition he describes himself as the equitable owner of certain bonds made by the La Crosse and Milwaukee Railroad Company. These bonds were secured by a mortgage; and it was in a suit brought to foreclose that mortgage that the sale was had of which he complains. The owner of these bonds, while the foreclosure proceedings were in progress, was Henry G. Weed, who had deposited them with the agents of a company, which proposed to use them in buying the said road, at the sale under the decree of foreclosure. These agents were invested by Weed with an absolute and full power to use the bonds in any manner, so that no money was required of Weed towards the purchase. The sale was made, and the road ruled. 926 We deem it sufficient to say that the petitioner, who had no interest in the matter at the time of the sale and confirmation, shows no right now to disturb what the parties who were interested have acquiesced in. The motion for mandamus is, therefore, over69 U. S. END OF VOLUME 69. The Extra Annotation here following is arranged in the order of the cases in the original reporter's volume which precede it. At the upper outside corner of the page is given the volume and pages of the cases to which the Annotation refers. After the official reporter's volume and page in the heading of each case is given book and page of the present edition, the abbreviation L being used for Lawyers Edition, or Law. Ed. for brevity, as it is throughout in the duplicate citations of cases from the Supreme Court. ABBREVIATIONS. F. C. appended to a citation from the regular reports of the U. S. Circuit and Distarct Courts refers to the series of reprints called the Federal Cases and gives, as its publishers do and recommend, the number of the case in that series. Fed. Cas. is used when the case is contained in the series of Federal Cases but is not reported in the regular series of U. S. Circuit and District Court Reports, and the citations of such cases is to the volume and page of Fed. Cas., not to the number of the case. Fed. or Fed. Rep. refers to the well known series Federal Reporter, containing reports of the Circuit and District Court decisions since 1880. L. R. A. will be readily recognized as the abbreviation for the Lawyers Reports Annotated, and particular attention should be given to these citations, as in a large proportion of cases the citing case will be found accompanied by a note on its principal point absolutely exhaustive of the authorities thereon. Am. Dec., Am. Rep. and Am. St. Rep. will be readily recognized as the abbreviations for the well known trinity of selected case reports, The American Decisions, American Reports and American State Reports. Pennsylvania State Reports (Pa. St.) The New Jersey Law Reports (N. J. L.) and Equity Reports (N. J. Eq.) are distinguished by the number of the series, not by the name of the reporter, while the North and South Carolina Reports, Law and Equity, are cited by the name of the reporter where the reports are so titled and it has been the universal custom. Duplicate citations are given to the National Reporter System where cases are therein contained, and to the Reporter System alone of cases not, at the date of the preparation of the annotation, officially reported. The usual abbreviations are used, as follows: Atl. Atlantic Reporter, Pac. Pacific Reporter, N. E. Northeastern Reporter, N. W. Northwestern Reporter, So. Southern Reporter, S. W. Southwestern Reporter, We think that in all other respects the abbreviations used are clear and familiar to all who are accustomed to the use of legal reports and text-books. U. S. Notes 2 Wallace, 17 L. ed. 926-94 p. EDITOR. |