Petition for Mandamus.

F. W. Hackett and H. J. Scudder, for petitioner.

WAITE, C. J. James C. Mead, in his life-time, filed with a register in bankruptcy proof of his claim against the estate of Abraham Mead, a bankrupt. Mary E. Travis, a creditor of the bankrupt, applied for a re-examination, and, upon consideration, the claim was rejected by the district court. Pending the proceedings James C. Mead died, and the petitioner, his executrix, appeared in his stead. After the rejection of the claim the executrix took an appeal to the circuit court, and did all that was necessary to perfect such an appeal, except giving notice to the assignee within 10 days after the entry of the decision. This she did not do, but she did give notice to the objecting creditor within the prescribed time. The circuit court, on the application of the assignee, refused to entertain the appeal because of the failure of notice to him. The petitioner now seeks by mandamus to require the circuit court to take the case and proceed therewith.

By section 4980 of the Revised Statutes "appeals may be taken from the district to the circuit courts in all cases in equity" arising under the bankrupt act; * "and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may appeal from the district court to the circuit court for the same district;" but by section 4981 no such appeal can be allowed, unless, among other things, notice thereof be given "to the assignee or creditor, as the case may be, or to the defeated party in equity, within 10 days after the entry of the decree or decision appealed from."

If a supposed creditor takes an appeal from an order rejecting his claim he must, under the provisions of section 4984, file in the clerk's office of the circuit court "a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall be thereupon had in the pleadings, trial, and determination of the cause, as in actions at law commenced and prosecuted in the usual manner in the courts of the United States."

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In Wood v. Bailey, 21 Wall. 640, it was decided that the omission to give notice to an assignee of an appeal from a decree in his favor in a suit in equity was fatal to the appeal. The effect of the ruling in that case is that the statute makes the notice within the prescribed time "a condition of the right of appeal" under section 4980. That seems to us conclusive of the present case. Proceedings under section 5081 for the re-examination of a claim filed against a bankrupt's estate are in the nature of a suit against the assignee for the establishment of the claim. A creditor may move for the re-examination, and, under general order in bankruptcy No. 34, may be required to form the issue which is to be certified to the district court for determination, but the assignee alone can appeal from an order of allow

ance; and if the supposed creditor appeals, the assignee must defend in the circuit court, where the proceedings are against him. Hence the necessity for notice to him in such cases; and, in our opinion, the words "to the assignee or creditor, as the case may be," in section 4981, mean to the assignee if the appeal is by the supposed creditor, and to the supposed creditor if it is by the assignee.

As upon the petitioner's own showing the circuit court properly refused to entertain his appeal, the rule asked for is denied and the petition dismissed.

(109 U. S. 229)





BAKER, Treasurer, etc., v. UNITED STATES ex rel. DAVIS.

(November 12, 1883.)


U. 8. v. County of Clark, 96 U. S. 211; U. S. v. County of Macon, 99 U. S. 589; and Macon Co. v. Huidekoper, Id. 592, affirmed.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

James Carr and Geo. G. Reynolds, for Knox county, and Baker, treasurer.

James Carr, for Macon county.

T. K. Skinker, for Harshman.

Geo. H. Shields, for Davis and Wells & French Co.

Joseph Shippin, for Huidekoper.

WAITE, C. J. In U. S. v. County of Clark, 96 U. S. 211, it was decided at the October term, 1877, that bonds of the character of those involved in the present suits were debts of the county, and that for any balance remaining due on account of principal or interest after the application of the proceeds of the special tax of one-twentieth of 1 per cent. the holders were entitled to payment out of the general funds of the county. This, we all agree, means that the payment of

18. C. 5 Fed. Rep. 556, and 15 Fed. Rep. 704.

this balance is demandable out of funds raised by taxation for ordi. nary county uses. The mandamus applied for in that case was one "requiring the county court and the justices thereof to direct the clerk of the county to draw a warrant on the county treasurer for the balance of the judgment remaining unpaid, so that he might be enabled, on its presentation, to have it paid in its order out of the county treasury," and there was no fund out of which the payment could be made, except that raised by taxation for ordinary county uses. By the judgment of this court, such a mandamus was awarded. At the next term, in 1878, the point thus decided was explicitly stated in U. S. v. County of Macon, 99 U. S. 589; and in Macon Co. v. Huidekoper, Id. 592, a majority of the court adhered to the decision, and ordered judgment accordingly. It was conceded on the argument that all the judgments now under consideration must be affirmed, unless these cases are overruled. This a majority of the court are unwilling to do, and judgments of affirmance are consequently ordered

(109 U. 8. 194)

CRAGIN v. LOVELL, Ex'r, etc.

[In Error to the Circuit Court of the United States for the District of Louisiana.]


[Appeal from the Circuit Court of the United States for the District of Louisiana. ]

(November 12, 1883.)


A defendant, against whom a judgment has been rendered on default by a circuit court of the United States in an action at law, cannot maintain a bill in equity to avoid it, upon the ground that the plaintiff at law falsely and fraudulently alleged that the parties were citizens of different states, without showing that the false allegation was unknown to him before the judgment.

Upon a negotiable promissory note, made by an agent in his own name, and not disclosing on its face the name of the principal, no action lies against the principal.

In an action at law, the declaration alleged that the plaintiff sold land to a third person, who gave his notes for the purchase money, secured by mortgage of the land; that afterwards the defendant, in a suit by him against that person, claimed the ownership of the land, and alleged that the other person, acting merely as his agent, illegally made the purchase in his own name, and that he was liable and ready to pay for the land; that he was thereupon adjudged to be the owner of the land, and took possession thereof; and that by reason of the premises the defendant was liable to the plaintiff in the full amount of the notes. Held, that the declaration showed no cause of action, even under article 1890 of the Civil Code and article 35 of the Code of Practice of Louisiana.

A judgment, rendered on default, upon a declaration setting forth no cause of action, may be reversed on writ of error, and the case remanded with directions that judgment be arrested.

. D. Rouse and Wm. Grant, for plaintiff in error.

Jos. P. Hornor and W. S. Benedict, for defendant in error. GRAY, J. These two cases have been argued together. Eliza A. Quitman, the defendant in error and appellee, having died since the judgment below, William S. Lovell, her executor, has appeared in her stead. In the action at law, she filed a petition against George D. Cragin, in the circuit court of the United States for the district of Louisiana, alleging that she was a citizen of New York and he was a citizen of Louisiana; that on the thirty-first of January, 1878, she sold a plantation to Orlando P. Fisk for the price of $22,500, of which the sum of $4,500 was paid in cash, and for the rest of which nine notes of Fisk were given for $2,000 each, payable in successive years, and secured by a mortgage of the estate; that Cragin had paid the first three of the notes, and the petitioner, by foreclosure and sale of the estate under the mortgage, had obtained the sum of $10,447.05, to be credited on the remaining notes under date of May 1, 1874; and further alleging as follows:

"Now your petitioner represents that George D. Cragin is and was the real owner of said property, and liable to your petitioner, for the following rea


"That subsequently to the said purchase of property by said Fisk, by a certain proceeding filed in this honorable court, the said Cragin did claim the entire ownership of the said property, and did claim that the purchase made in the name of the said Fisk was illegally entered in his own name by said Fisk, who was acting merely as the agent of said Cragin, and that the amount of the purchase price of said property paid in cash, as well as the first and second notes aforesaid, were made by said Fisk with the money of said Cragin, and that he, said Cragin, was liable for and ready to pay for said property; that thereafter, in due course of law, and after proper proceedings, the said Cragin was adjudged by this honorable court, by final decree, to be the owner of said property, and the matters and things in said petition contained were found to be true and correct.

"That pending said proceedings the said George D. Cragin was and in said case appointed the receiver of the said plantation, so sold by your petitioner as aforesaid, and that, acting as such receiver, and subsequently as such owner of said plantation, he did remove therefrom all the movable property thereon, and which existed thereon at the date of the sale by your petitioner to said Fisk, of a value exceeding $1,000, and did lay waste and dilapidate the said property, to benefit his adjoining plantation, and to the detriment of your petitioner's rights.

"Petitioner further avers, that by reason of the causes aforesaid the said George D. Cragin is liable and indebted unto your petitioner in the full amount of said notes, less the credit due as aforesaid, for which amicable demand has been made without avail."

The record shows that Cragin was served with process in Louisiana, and, not appearing, was defaulted, and judgment was rendered for the plaintiff in the sum claimed, (which was shown by computation and agreement of counsel to be $6,888.40,) and the defendant sued out a writ of error, which is the first of the cases before us.

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The other case is an appeal from a decree of the same court, dismissing upon demurrer a bill in equity, filed by Quitman against Cragin to annul and avoid the judgment aforesaid and to restrain the issue of execution thereon. The bill set forth the proceedings in the suit at law; and its only other material allegations were, that the circuit court had no jurisdiction of that suit, because both parties were citizens of New York; and that Quitman, knowing that fact, falsely and fraudulently alleged Cragin to be a citizen of Louisiana, and illegally and unjustly obtained judgment by default against him.


It is quite clear that the bill in equity was rightly dismissed, because it contains no allegation that Cragin did not know, before the judgment against him in the suit at law, that the plaintiff in that suit alleged that he was a citizen of Louisiana. If he did then know it, he should have appeared and pleaded in abatement; and equity will not relieve him from the consequence of his own negligence. Jones v. League, 18 How. 76; Crim v. Handley, 94 U. S. 652. The decree in the suit in equity must therefore be affirmed. But it is equally clear that the judgment at law is erroneous. The petition shows no privity between the plaintiff and Cragin. It alleges no promise or contract by Cragin to or with the plaintiff. The mere description of the notes, received by the plaintiff, as "notes of Fisk, does not show that they were not negotiable instruments, but on the contrary, in the connection in which it is used, and applied to notes given for the purchase money of land, and secured by mortgage thereof, designates (as was assumed by both counsel at the argument) negotiable promissory notes, bearing no name but that of Fisk as maker; and on such notes no action will lie against any other person. Nash v. Towne, 5 Wall. 589, 703; Williams v. Robbins, 16 Gray, 77; In re Adansonia Fibre Co. L. R. 9 Ch. 635; Daniels v. Burnham, 2 La. 243, 245. The case does not come within the decisions in Mechanics' Bank of Alexandria v. Bank of Columbia, 5 Wheat. 326, and in Metcalf v. Williams, 104 U. S. 93, in each of which the name of the principal appeared upon the face of the note.

If the action is treated, not as an action upon the notes themselves, but as an action to recover the amount of the notes, by reason of a subsequent agreement of Cragin to pay them, the plaintiff fares no better. The only allegations touching the relation of Cragin to these notes are that, in a suit by him against Fisk, he alleged that Fisk, in purchasing the land, acted merely as his agent, and that he owned the land, and was liable and ready to pay for it; and that he was thereupon adjudged to be the owner of the land and took possession thereof. If this amounted to a promise to any one, it was not a promise to the plaintiff, nor even a promise to Fisk to pay to the plaintiff the amount of the notes, but it was, at the utmost, a promise to Fisk to pay that amount to him, or to indemnify him in case he should have to pay it. It is therefore not within the provisions of the Louis

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