the Association for his use, and no reason is perceived to doubt the correctness of the rule adopted in that case, though the Act of Con

[No. 129.]

Submitted Mar. 6, 1872. Decided Apr. 8, 1872. 'N the United

greas does not in terms give him authority to SRROR to the Circuit Courtof of no

sue in his own name. Booth v. Clark, 17 How., 322 [58 U. S., XV., 164].

This was an action of debt against Charles J. Ballard and his sureties on his official bond, as Collector of Customs for the District of Cuyahoga.

The breach assigned is the refusal of said Collector to pay over to the plaintiff the amount of certain sums of money received from the own.

IV. Enough has already been remarked to show that the fourth proposition of the defendants cannot be sustained, as the Act of Congress provides that the receiver, in making the basis for a dividend, shall include in the list not only claims proved before him to his satis-ers of steamboats, as compensation for inspecfaction, but claims also adjudicated in a court tions and examinations, and from engineers and of competent jurisdiction. pilots, for certificates granted them by the inspector.

The defendants filed two pleas, viz.:
First. Nil debet, concluding to the country.
Second. A special plea concluding with a
verification.

Upon the first plea issue was joined; to the second, plaintiff filed a general demurrer, and the defendants their joinder therein.

The circuit court overruled the demurrer, and thereupon, without disposing of the issue to the country, rendered judgment for the defendants.

Attempt is made to show that the adjudicated claims there referred to are only such as had been adjudicated before the receiver was ap pointed, but the court is of the opinion that such a construction is not warranted, either by the language employed, or the subject matter to which it relates, or the purpose to be accomplished, or by the analogies of the law, or the usual rules of interpretation which courts apply in ascertaining the meaning of a legislative provision of a remedial character. Tested by any one or all of these criterions, the court is of the opinion that the construction assumed by the The case further appears in the opinion. defendants is quite too narrow to carry into Mr. B. H. Bristow, for plaintiff in error: effect the intention which the framers of the The order of the court overruling the demurprovision had in view at the time it was adopt-rer, treats it as a demurrer to both pleas; but ed. Claims presented by creditors may be this is obviously a mistake, since the similiter to proved before the receiver, or they may be put the first plea precedes the demurrer, which, in in suit in any court of competent jurisdiction, as terms, applies only to the second. The judg a means of establishing their validity and to dement, however, extends to the whole case, and termine the amount owed by the association, is final. but the judgment when recovered will not give the creditor any lien on the property of the delinquent association, nor secure to the judgment creditor any preference over other creditors whose claims are proven before the re ceiver. All alike must await the action of the Comptroller of the Currency, and be content with a just and legal distribution of the proceeds of the assets collected by the receiver and liquidated by the comptroller according to the Act of Congress in such case made and provided.

Nothing further need be remarked in respect to the other errors assigned, as it is clear that the conclusions announced dispose of all the questions in the case which are examinable under a writ of error to a state court.

It is submitted that the circuit court erred: First. In overruling the demurrer to the second plea.

Second. In rendering final judgments for defendants on the pleadings.

Mr. A. G. Riddle, for defendants in error. Mr. Chief Justice Chase delivered the opinion of the court:

The general question in this case is, whether certain Collectors of the Customs are entitled to retain for their own use moneys received by them from the owners of steamers, and from engieeers and pilots, by virtue of the 31st section of the Act of August 30, 1852. The right to retain such moneys is asserted under the 2d section of the Act of July 17, 1864. That Act provides that the collectors referred to shall receive an annual compensation of $1,000, and in addition thereto, the fees now collected under the general regulation of the Treasury Department of February, 1857, and a commission of three per cent. on all moneys collected and accounted for by them respectively; provided, that the aggregate compensation derived from salaries, fees and commissions, shall not exceed the sum of $2.500 per annum. The Act further provides, that any excess after deducting the necessary expenses, shall be paid into the Treasury of the United States, fees and emoluments of all kinds to be accounted for as provided by the 12th section of the Act of the 7th of May, 1822.

fees now collected under the general regulations The question is whether the description of of the Treasury Department of February, 1857, includes the sums collected under these regulations for licenses to steamers, and as compensation for the inspections and examinations made

court on the following day also ordered the the County in lieu of those first issued were recounty clerk to re-issue one hundred and eighty-issued to the contractors, but they aver that it six bonds in substitution of the same number is nct true that bonds of the County were re-ispreviously delivered, to correct an error in their sued to any other persons, and they deny that execution; and also that the county court, on the bonds of the County were issued to . the 6th of May, in the following year, ordered any greater amount than $205,000 or that any the county clerk to issue bonds for the purpose greater amount was ever paid to the contractof exchanging and taking up all bonds previors on account of the road described in the conously issued for the construction of such roads tract; and they also aver that a like amount of and bridges, whether completed or in the prog- bonds in lieu of those re-issued were at the ress of construction, it being understood that same time given up, canceled and retired. all bonds issued prior to that date should be Apart from the merits they also deny that canceled and destroyed, and that warrants the agreement was antedated as alleged, and should also issue for the payment of such in- they also controvert each and every illegal and terest as had accrued to that time, and the charge irregular act set up in the bill, and specificis that bonds were issued under that order to ally deny all charges of fraud, collusion and an amount equal to the whole amount of the want of good faith therein alleged and imbonds held by the contractors and all other hold-puted, and they aver that they have complied ers, amounting in the aggregate, reckoning both in all respects with their obligations and duties issues, to $600,000, and that warrants for the in the premises. payment of interest to that date, amounting to $30,000, were also issued, and yet the complainants charge that the bonds previously issued have never been canceled, delivered up or destroyed, but that they remain to this day a charge against the property holders and tax payers of the County.

They also charge that the original agreement was, by collusion between the judges of the county court and the contractors, fraudulently antedated and made to bear a rate of interest greater than the legal rate at the time the agreement was actually executed, and they also charge the fact to be that the road is not made nor the work performed in accordance with the contract and specifications, and that the county court, or a majority of the judges thereof, acting collusively with the contractors, fraudu lently connived at these flagrant violations of the contract to the great injury and oppression of the property holders and tax payers of the County.

Amendments were afterwards made to the bill and new parties respondents were added, and the complainants filed the general replication and the parties proceeded to take proofs, and having been fully heard upon the merits, the court made the following finding of facts: That none of the allegations of fraud or collusion are proved, and that no fraud, collusion or conspiracy existed as charged; that the bonds in question were not, nor were any of them, issued without authority of law, and that the same were and are valid, and were issued under legal authority; that the contractors were not the holders or owners of any of the bonds at the commencement of the suit; and that the defendants who were holders of the bonds at that time became such in good faith for value; and that they were and are innocent holders and unaffected by any irregularity which may have existed in the issue of the bonds. Consequently, the court denied the prayer of the complainants for an injunction and dismissed their bill of complaint. Exceptions were filed by the complainants, pursuant to the practice in that court, and the cause was removed into the Supreme Court of the State, where the decree of the subordinate court was in all things af

Other acts equally fraudulent and oppressive are also charged against the respondents in the bill of complaint, and the complainants finally allege that the contract and agreement, and all the orders of the county court based upon the same or in relation thereto, are without author-firmed. ity of law and contrary to the provisions of the statute applicable in such cases, and that the bonds are fraudulent, null and void; and they pray that an order may be made declaring that the contract and agreement, and all the orders of the county court based upon the same or in relation thereto, are null and void and of no effect, and that the parties holding the bonds shall deliver the same up, that the same may be canceled, annulled and held for naught; and that an injunction may be issued enjoining and restraining the respondents from negotiating, selling, transferring or disposing of the bonds, and enjoining and restraining the County and the county treasurer from paying the same, either interest or principal.

Service was made and the respondents appeared and filed an answer, in which they ad mit that the county court did not submit the amount of the proposed expenditure to the voters of the County, but they deny that it was required by law that the county court should do so before making the contract for the con struction of the road. They admit that interest was paid as alleged and that the bonds of

Argument to show that the case as exhibited in the pleadings does not present any question cognizable in this court under a writ of error to a State Court is hardly necessary, as neither the bill of complaint nor the answer contains any averment which would warrant such a conclusion or which has any tendency to support such a theory. Instead of that, the bill is an ordinary bill to set aside a contract alleged to have been executed by the officers of a county without authority of law, and for an injunction to enjoin and restrain the County from paying certain bonds issued under the contract to pay certain contractors for the construction of a certain road described in the contract, and from levying any taxes upon the property holders of the County for that purpose, because the bonds, as the complainants allege, were issued without authority and contrary to law and through fraud and collusion between the county court and the contractors; and also to enjoin and restrain the holders of the bonds from transferring or otherwise disposing of the bonds to other parties.

Clearly the pleadings do not present a case

where is drawn in question the validity of or | law in question is repugnant to both of those an authority exercised under the United States provisions. or where is drawn in question the validity of a statute of or an authority exercised under any State on the ground of its being repugnant to the Constitution, treaties or laws of the United States; or where any title, right, privilege or immunity is claimed under the Constitution or any treaty or statute of or commission held or authority exercised under the United States; or where is drawn in question the construction of the Constitution or of a treaty or statute of or commission held under the United States as the language is in the corresponding provision of the Judiciary Act. Cases not falling with in one or the other of the three classes of cases mentioned are not re-examinable in this court under a writ of error to a State Court, as the court possesses no other appellate jurisdiction in such cases than that conferred by those provisions. Apply that rule to the present case, and it is as clear as anything in legal investigation can be, that the pleadings in the case do not present any question re examinable in this court under a writ of error to a State Court.

Final judgments and decrees only of a State Court are re-examinable in this court, and before the court can entertain jurisdiction to reexamine such a judgement or decree, it must appear, either by express averment in the pleadings or by clear and necessary intend ment, that some one of the questions mentioned in the 25th section of the Judiciary Act or in the 2d section of the Act to amend the Judiciary Act was raised in the State Court, and that it was there decided in the manner therein required to give this court such appellate juris diction, or that the State Court could not have reached the conclusion it did without deciding the question and in the manner required by those provisions to give this court jurisdic tion in the case. Rector v. Ashley, 6 Wall., 147 [73 U. S., XVIII., 733].

Clear and necessary intendment that the question was raised and must have been decided as claimed, in order to have induced the judg ment, is sufficient: but it is not sufficient to show that such a question might have arisen and been applicable to the case, unless it appears in the record that it did arise and was ap plied by the State Court in disposing of the con troversy. Hamilton Co. v. Massachusetts, 6 Wall., 636 [73 U. S., XVIII, 906]: Furman v. Nichol, 8 Wall., 56 [75 U. S., XIX., 375]; Crowell v. Randell, 10 Pet., 368.

Had the record stopped there the case would be free of all difficulty, but it does not stop there, as appears by the return to the certiorari granted by this court. On the contrary, the respondents afterwards moved the court to set aside the decree and to grant a rehearing of the cause for the following reasons, among others not necessary to be mentioned: (1) That the Act of the Legislature, under which the bonds in controversy were issued, is null and void because it is repugnant to the Constitution of the State. (2) That the Act in question is null and void because it is repugnant to the Consti tution of the United States, which forbids a State to pass any law impairing the obligation of contracts or to deprive any person of life, liberty or property without due process of law; and the proposition submitted is that the state

Much discussion of either proposition is not required, as the court is of the opinion that the decision of a State Court in granting or refusing a motion for rehearing in an equity suit is not re-examinable in this court under any writ of error which this court can issue to review the judgment or decree of a State Court. Beyond doubt, the respective averments in question, if they had been embodied in the bill of complaint, would have been sufficient to raise questions re-examinable in this court, and if it had also appeared that one or both of them had been decided in the manner required to give this court jurisdiction in such a case. or that the State Court could not have reached the conclusion it did without deciding the question in that way, it would be plain that the motion to dismiss ought not to be granted. Necessary jurisdictional allegations cannot properly be introduced for the first time on a motion for rehearing, as the motion itself is one addressed to the discretion of the court and one in which the decision of the court in granting or refusing it is not subject to review in an appellate court. Thomas v. Harvie, 10 Wheat., 151; Peck v. Sanderson, 18 How., 42 [59 U. S., XV., 262]. Such a motion is not founded in a matter of right, but rests in the sound discretion of the court. Daniel v. Mitchell, 1 Story, 198; Dexter v. Arnold, 5 Mas., 315; Story, Eq. Pl. (7th ed.), secs. 412, 417; Brown v. Aspden, 14 How., 25; Emerson v. Davies, 1 Wood. & M., 21; Jenkins v. Eldredge, 3 Story, 299; Public Schools v. Walker, 9 Wall., 603 [76 U. S., XIX., 650]; U. S.v. Knight, 1 Black, 488 [66 U. S., XVII., 80]; U. S. v. Samperyac, Hemp., 118. Matters resting in the discretion of a subordinate court cannot be assigned for error in an appellate court. Murphy v. Stewart, 2 How., 263; Mor sell v. Hall, 13 How., 212. Exceptions do not lie to the granting or refusing a new trial in a suit at law, nor will an appeal lie from the circuit court to this court from an order of the circuit court in granting or refusing a petition for rehearing in an equity suit for the same reason, which is that the motion in the one case, or the petition or motion in the other, is alike addressed to the discretion of the court, as shown by all the decisions in the Federal Courts.

Even if it could be admitted that the questions suggested were raised in the case by the motion for rehearing, it certainly does not appear that either of them was decided in a way to give this court jurisdiction, as it is quite ob vious that the motion may have been denied upon grounds altogether distinct from any question which is re examinable in this court. All the information the record contains upon the subject is that the motion was subsequently overruled, unaccompanied by any statement as to the grounds of decision, but it is quite clear that it may have been denied because that objection to the bonds was not made in the bill of complaint, or because the subsequent Act of the Legislature confirmed the doings of the county court under the prior Act, or because the court was of the opinion that the subsequent acts of the county court or other officers estopped the County from setting up that defense to the bonds in the hands of innocent holders, or for many other reasons which might

be suggested, wholly irrespective of the questions which it is supposed may be re-examined in this court. Suppose, therefore, it does ap pear that one or more of the questions which give jurisdiction under such a writ of error was presented in the motion for rehearing, and that such a question may properly be presented in such a motion, still the motion to dismiss must prevail in this case, because the record shows that the motion might have been denied, upon other grounds, and it does not appear, even if those questions did arise in the case, that either of them was decided by the State Court, or that the supposed erroneous rule was applied by the State Court in disposing of the controversy. Hamilton Co. v. Mass., [supra].

Viewed in any light, the case fails to show that this court has any jurisdiction of the controversy, and the writ of error is dismissed for want of jurisdiction.

suit was commenced by the defendant in error, who claims title through the judicial sale to Spear, and it is defended by the plaintiff in error under the title, if any, acquired by Starne and Shutt. The laws of Illinois exempt from forced sale on execution the lot of ground and the buildings thereon occupied as a residence and owned by the debtor, being a householder and having a family, to the value of $1,000. And the owner of the homestead, if a married man, is not at liberty to alienate it except with the consent of the wife, and there must be an express release and waiver of the exemption on the part of both to render the conveyance operative. A mode is provided for dividing the property, if divisible, in case its value exceeds $1,000; and of selling it, if indi. visible, and applying the proceeds in a particular manner. As Spear did not pursue these modes of obtaining satisfaction of his judgment, although the homestead property was sufficient

Cited-14 Wall., 26, 237; 95 U.S., 100; 17 Bank. Reg., to pay his demand and set off to the debtor

475.

GEORGE N. BLACK, Piff. in Err.,

D.

DAVID R. CURRAN.

(See S. C., 14 Wall., 463–473.)

what he was entitled to under the law, the inquiry arises whether the proceedings which he did take operated to pass the title after the homestead was abandoned.

It is conceded that this inquiry must be answered, if possible, by the decisions of the Supreme Court of Illinois on the subject, for these decisions constitute a rule of property by which

Homestead right-extent of-sale of land on judg. we are to be governed. Although the exact

ment-effect of.

1. The homestead right is not, in Illinois, an estate in the land. 2. As long as the property retains its homestead character, it is within the protection of the law, but the exemption from sale under execution or by deed, except with homestead waiver, can be lost by abandonment or surrender, that is: by acts en pais.

3. A judgment is a lien on the land subject to the homestead right, and the land or fee can be sold under execution subject to such right, and the purchaser has the absolute title when the homestead right ceases.

4. A sale under the judgment could not devest the homestead right of occupation.

[No. 64.] Submitted Nov. 14, 1871. Decided Apr. 15, 1872. 'N ERROR to the Circuit Court of the United

The case is stated by the court. Messrs. Lyman Trumbull, Stuart, Ed wards & Brown, for plaintiff in error.

Mr. Jackson Grimshaw, for defendant in error.

Mr. Justice Davis delivered the opinion of the court.

point in dispute has not been adjudicated by that court, yet certain general principles have been announced which in their application to this case we think relieve it of difficulty. The embarrassment encountered in the administration of this law has been chiefly owing to the fact that the exemption was confined to real estate of a limited value. If the exemption had extended to the entire lot of ground occupied as a homestead without regard to its value, it is easy to see that many troublesome questions which have arisen would have been avoided.

In order to reach a proper conclusion in this case, it is necessary to understand what is the nature of the homestead right. It cannot, in an absolute sense, be said to be an estate in the land; the law creates none and leaves the fee as

right of occupancy shall not be disturbed while the homestead character exists. While this continues, the judgment creditor cannot lay his hands on the property, nor the husband sell it without the consent of his wife, and not then without an express release, on the part of both, of the benefits of the law. The purpose of the Legislature was to secure a homestead for the The rights of the parties to this suit depend family, and the disposition of the property upon the construction to be given the home- either by judicial sale or voluntary conveyance, stead laws of Illinois. Craddock, the common was left unaffected except so far as was necessource of title of both parties, being the head of sary to accomplish this object. As long as the the family and residing with it, occupied, from property retained its peculiar character, it was 1853 to 1863, the premises in controversy as part within the protection of the law, but the exof his homestead. In 1858, David Spear ob-emption from sale under execution or by deed tained a judgment against Craddock, and by regular judicial proceedings procured a sheriff's deed for the property. In 1863, Craddock and wife conveyed the lot in fee simple by deed, with full covenants, releasing the homestead, and properly acknowledged, to Starne and Shutt; and two weeks afterward, with his family, he removed from the premises, and has since then ceased to occupy them. In 1866, this

(except with homestead waiver) could be lost by abandonment or surrender; that is to say by acts in pais.

The Supreme Court of Illinois have recognized and applied these principles in several recent cases, where the effects of voluntary conveyances by the owner of the homestead were the subject of consideration.

In McDonald v. Crandall, 43 Ill., 231, it was