between cases at law and in equity is rigidly preserved.

Whether the case is tried by a jury, or, by consent of the parties, the judge is substituted for the jury, the finding is a verdict, to be recorded as such, and to have the same force and effect in either case; and the record will be examined and tried in this court according to the rules of the common law.

Upon records like the one before us these rules have been applied, both before-Mercantile Mut. Ins. Co. v. Folsom, 85 U. S. 18 Wall. 237-254 (21: 827-835)—and since the statutes authorizing exceptions to be saved to the rulings of the judge during the trial where a jury is waived.

Craig v. Missouri, 29 U. S. 4 Pet. 410 (7:903); Weems v. George, 54 U. S. 13 How. 190 (14:108); Graham v. Bayne, 59 U. S. 18 How. 60 (15:265); Guild v. Frontin, Id. 135 (15:290); Louisiana Mut. Ins. Co. v. Tweed, 74 U. S. 7 Wall. 44 (19: 65); Bassett v. U. S. 76 U. S. 9 Wall. 38 (19:548); Norris v. Jackson, Id. 125 (19:608); Copelin v. Phonix Ins. Co. Id. 461 (19:739); Coddington v. Richardson, 77 U. S. 10 Wall. 516 (19:981); | Generes v. Campbell, 78 U. S. 11 Wall. 193 (20: 110); Miller v. Brooklyn L. Ins. Co. 79 U. S. 12 Wall. 285 (20:398); Dirst v. Morris, 81 U. S. 14 Wall. 484 (20:722); Richmond v. Smith, 82 U. S. 15 Wall. 429 (21:200); Dickinson v. Planters Bank, 83 U. S. 16 Wall. 250 (21:278); Mercantile Mut. Ins. Co. v. Folsom, 85 U. S. 18 Wall. 237 (21:827); Ohio v. Marcy, Id. 552 (21:813); Springfield F. & M. Ins. Co. v. Sea, 88 U. S. 21 Wall. 158 (22:511); Etna Ins. Co. v. Boon, 95 U. S. 117 (24:395); Boogher v. New York L. Ins. Co. 103 U. S. 90 (26:310); U. S. v. Harris, 106 U. S. 634 (27:292); Bond v. Dustin, 112 U. S. 604 (28: 835); Martinton v. Fairbanks, Id. 670 (28:862); Allen v. St. Louis Bank, 120 U. S. 30 (30:575). The court must enter a judgment on the verdict, or set it aside and grant a new trial.

Mitchell v. Geisendorff, 44 Ind. 360. Judgment cannot be entered until the verdict or decision upon the issue has been pronounced and recorded.

Gilbert, Eject. 92-114; Runnington, Eject. 401; Adams, Eject. 328; Tyler, Eject. 582; 3 Bl. Com. 395; 3 Chitty, Bl. App. 12.

The making up of the judgment, and writing the same out upon the record, are both acts of the clerk, and never the act of the court.

A record can only be tried by itself, by bare inspection.

Com. Dig. title Record, B, E, F.; Co. Litt. 117 b, 260; Croswell v. Byrnes, 9 Johns. 287; Young v. Thompson, 14 Ill. 380, 381; 3 Bl. Com. 24; Waldron v. Green, 4 Wend. 409; Re Negus, 10 Wend. 40; McKnight v. Dunlap, 4 Barb. 36. Where mandamus is the proper remedy, error will not lie.

Knickerbocker Ins. Co. v. Comstock, 83 U. S. 16 Wall. 258 (21:493).

This court has decided that, on this record, the remedy is by writ of error.

Ex parte Morgan, 114 U. S. 174 (29:135). There was no averment of damages in the declaration; no issue on their amount.

Mansur v. Streight, 1 West. Rep. 299, 103 Ind. 358; Larned v. Hudson, 57 N. Y. 151; Harrison v. Nixon, 34 U. S. 9 Pet. 503 (9:208); Graham v. Bayne, 59 U. S. 18 How. 61, 62 (15: 266).

The claim for mesne profits, and for damages for withholding possession, are separate and distinct causes of action which must be pleaded if any recovery therefor is desired.

Larned v. Hudson, and Mansur v. Streight, supra.

The insertion, in the judgment, of the words "as indicated by a fence constructed," etc., was improper.

Applegate v. Doe, 2 Ind. 169, 170; Voltz v. Newbert, 17 Ind. 190, 191; Doe v. Hall, 2 Ind. 24; Farrow v. Farrow, 2 J. J. Marsh. 388; Simpson v. Shannon, 5 Litt. 324; Doe v. Wilson, 2 Starkie, 477; Cottingham v. King, 1 Burr. 623; Connor v. West, 5 Burr. 2672.

In this case the judgment only requires to be amended, according to certain and long estab lished principles.

Woodward v. Brown, 38 U. S. 13 Pet. 1, 2 (10: 31); Bank of Kentucky v. Ashley, 27 U. S. 2 Pet. 327 (7:440); Miller v. Royce, 60 Ind. 189; State v. Cross, 6 Ind. 387; Sherman v. Nixon, 37 Ind. 154; 3 Bl. Com. 407-410; Smith v. Fuller, 2 Strange, 786; Flindell v. Fairman, 11 Price, 410, 411.

The court had nothing to do with the location of the boundary.

Tongue v. Nutwell, 17 Md. 228, 229; Farrow Farrow, 2 J. J. Marsh. 388; Games v. Stiles, 39 U. S. 14 Pet. 333 (10:481).

The verdict must respond to the issue joined, between the parties to the action.

In courts of the United States the distinction

Patterson v. U. S. 15 U. S. 2 Wheat. 221 (4:

A verdict which is recorded for part of the

Co.Litt. 227, a; Wise v. Hine, 1 Greene (Iowa), 62; Auncelme v. Auncelme, Cro. Jac. 31; Com. Dig. title Pleader (S) 19: Miller v. Trets, 1 Ld. Raym. 324; Rex v. Hayes, 2 Ld. Raym. 1518; Wood v. McGuire, 17 Ga. 361; Patterson v. U. S. 15 U. S. 2 Wheat. 225 (4:225); Prentice v. Zane, 49 U. S. 8 How. 484 (12:1166); Graham v. Bayne, 59 U. S. 18 How. 60 (15:265); Er parte French, 91 U. S. 423 (23:249); Fort Scott v. Hickman, 112 U. S. 150, 165 (28: 636, 641); Graves v. Morley, 3 Lev. 55.

A general verdict for the plaintiff entitles him to judgment for the entire premises.

McKee v. Wilson, 87 N. C. 300; Burkle v. Ingham Circuit Judge, 42 Mich. 513; Chapman v. Holding, 60 Ala. 522; Farrow v. Farrow, 2 J. J. Marsh. 388; Buckley v. Cunningham, 4 Bibb, 285; Hamner v. Eddins, 3 Stew. (Ala.) 192, 197; Kershner v. Kershner, 36 Md. 335, 336; Betz v. Mullin, 62 Ala. 365; Cannon v. Davies, 33 Ark. 56.

Indiana reports are full of such amendments nunc pro tunc.

Carver v. Carver, 97 Ind. 497-505; Steeple v. Downing, 60 Ind. 478-503; Parker v. Small, 58 Ind. 349; Clements v. Robinson, 54 Ind. 599.

Mr. Justice Harlan delivered the opinion of the court:

More than a year elapsed after the refusal of the court to grant a new trial before the motion to amend and reform the judgment was made. If the court had authority to entertain that motion after the expiration of the term at which the judgment was entered, it was properly denied. By the local statute applicable to the case the plaintiffs were entitled to recover against the defendants, or either of them, the whole of the premises in controversy, or any part thereof, or any interest therein, according to the rights of the parties. Rev. Stat. Ind. 1881, § 1060; Rev. Stat. U. S. § 914. The plaintiffs contend that there was, in effect, a general finding for them, as to all the land in dispute, and that the judgment should have been in their favor for the whole of the prem

Messrs. A. C. Harris and Wm. H. Calkins for defendant in error:

A judgment will not be reversed because of the use of untechnical or improper words.

Lyles v. McClure, 1 Bail. L. (S. C.)7; Minkhart v. Hankler, 19 Ill. 47; Freem. Judg. 1st ed. §§ 47, 50, 51.

A new trial of right being a statutory remedy, the right granted is no broader than the

statute.

Butler University v. Conard, 94 Ind. 353. Under the general issue it was not necessary to prove the defendant's possession. The answer admitted this.

Carver v. Carver, 97 Ind. 519.

It is too late to attack the judgment now. Buell v. Shuman, 28 Ind. 464; Rardin v. Walpole, 38 Ind. 146, 150; Smith v. Dodds, 35 Ind. 452; Leary v. State, 39 Ind. 360; Brick v. Scott, 47 Ind. 299, 300.

The motion to correct the judgment was clearly an afterthought and is unsupported by any practice.

Lake Erie & W. R. Co. v. Acres, 7 West. Rep. 83, 108 Ind. 548; Henry v Stevens, Id. 281 (6 West. Rep. 577; First Nat. Bank v. Root, 5 West. Rep. 286, 107 Ind. 224, 228; Louisville, N. A. &C. R. Co. v. Schmidt, 3 West. Rep. 648, 106 Ind. 73; Leeds v. Richmond, 102 Ind. 372; Hold erman v. Miller, Id. 356; Over v. Schiffling, Id. 191; Bremmerman v. Jennings, 101 Ind. 253; Logansport v. Uhl, 99 Ind. 531; Cottrell v. Etna L. Ins. Co. 97 Ind. 311; Western Union Tel. Co. v. Reed, 96 Ind. 195; Mescall v. Tully, 91 Ind. 96. Twenty years a bar.

Bowen v. Preston, 48 Ind. 367; Vanduyn v. Hepner, 45 Ind. 596; Wright v. Tichenor, 2 West. Rep. 209, 104 Ind. 185; State v. Portsmouth Sav. Bank, 4 West. Rep. 526, 106 Ind.

436.

The plaintiff suing for the possession of real estate may recover for any part of it or interest

ord, fairly interpreted, does not show any such finding. The order of January 20, 1883, embraces both a finding and a judgment. But they are not, for that reason, nullities. O'Reilly v. Campbell, 116 U. S. 418, 420 [29:669]. That order plainly indicates a general finding for the plaintiffs only as to a part of the land in controversy; that is, as to the part described in the order. The judgment is for the recovery only of the possession of the premises so described. Such a judgment was proper if the plaintiffs failed to show title to the remaining part of the premises in dispute. As there was no special finding of facts bearing upon the question of title, we must assume that the evidence authorized the finding as to the particular premises awarded to the plaintiffs. They cannot complain that judgment was not rendered in their favor for the part not shown to belong to them.

It was said in argument that the judgment was for land not embraced in the description given in the complaint; that the plaintiff's got a judgment for land not sued for. But this cannot be made to distinctly appear from a comparison of the description in the complaint, with the description in the judgment, of the premises recovered.

If the description in the judgment, of the land recovered, was not sufficiently full or accurate, it was in the power of the plaintiffs, at the time the finding was made, or during the same term, to procure such a reformation of the judgment as would have been proper. Instead of pursuing that course, they preferred to claim-contrary to what, it seems to us, was the manifest purpose of the court-that there was a general finding, without qualification, in their behalf, which should have been followed by a judgment for the whole land. As, however, the finding was, in fact and legal effect, for only a part of the premises in dispute, and as we are bound to assume, from the record, that that part is embraced in the description given in the complaint, the judgment must be affirmed. It is so ordered.

jurisdiction to review the judgment of the Supreme Court of Missouri.

Detroit City R. Co. v. Guthard, 114 U. S. 133 (29:118); Chouteau v. Gibson, 111 U. S. 200 (28:400); Murdock v. Memphis, 87 U. S. 20 Wall. 590 (22:429); Brown v. Colorado, 106 U. S. 97 (27:133); McManus v. O'Sullivan, 91 U. S. 578 (23:390); Brown v. Atwell, 92 U. S. 329 (23:512); Simmerman v. Nebraska, 116 U. S. 54 (29:535). The opinion of the court in the record herein shows that its judgment was based upon statute law of the State, against which no constitutional objection was raised by the plaintiff, and therefore the judgment was not against any constitutional right presented to the court.

Adams County v. Burlington & M. R. R. R. Co. 112 U. S. 126, 127 (28: 679, 680); Chapman v. Crane, 123 U. S. 540 (ante, 235); Brooks v. Missouri, 124 U. S. 394 (ante, 454).

It is not contended that the state law so construed is in violation of the Constitution of the United States.

New York L. Ins. Co. v. Hendren, 92 U. S. 286 (23:709); Dugger v. Bocock, 104 U. S. 596 (26:846); San Francisco v. Scott, 111 U. S. 769 (28:593); Grame v. Virginia Mut. Assur. Soc. 112 U. S. 274 (28:716); Citizens' Bank v. Board of Liquidation, 98 U. S. 140 (25:114).

But if the court should determine that a federal question is involved, under the rule in Murdock v. Memphis, supra, the judgment should be affirmed.

Mr. James Carr, for plaintiff in error, in opposition:

There is a federal question presented by the record, and this court has jurisdiction, under section 709 of the Revised Statutes, to decide said question.

the Fourteenth Amendment to the Constitution of the United States.

Des Moines Nav. & R. R. Co. v. lowa Homestead Co. 123 U. S. 552 (ante, 202).

It is admitted that if the plaintiff had been notified, she would be estopped from afterwards controverting the legality of said commissions.

Hagar v. Reclamation Dist. 111 U. S. 701 (28:569); Chicago L. Ins. Co. v. Needles, 113 U. S. 574; (28:1084); Kennard v. Louisiana, 92 U. S. 480 (23:478); Foster v. Kansas, 112 U. S. 201 (28:629).

When a party has a right secured by federal law, his right cannot be denied by silence or evasion.

Chapman v. Crane, 123 U. S. 540 (ante, 235).

The federal question lies in front of this case, and it must be decided before the equity in this case can be reached.

Chapman v. Crane, supra.

It is one of the highest duties of this court to see that the constitutional right of the plaintiff to due process of law in protecting her property is preserved.

Hale v. Finch, 104 U. S. 261 (26:732); Brooklyn C. & N. R. R. Co. v. National Bank of the Republic, 102 U. S. 14 (26:61).

The defendant not having given any notice of his final settlement, it is subject to correction if illegal or erroneous.

Picot v. Biddle, 35 Mo. 29; Sheetz v. Kirtley, 62 Mo. 417; State v. Roeper, 82 Mo. 57; North v. Priest, 81 Mo. 561; Baker v. Runkle, 41 Mo. 391.

The allowance of the illegal commissions charged in the plaintiff's bill is a constructive fraud.

Oldham v. Trimble, 15 Mo. 225; Clark v. Henry, 9 Mo. 339; Clyce v. Anderson, 49 Mo. 37; Smiley v. Smiley, 80 Mo. 44. An administrator is a trustee. Houts v. Shepherd, 79 Mo. 141; Merritt v. Merritt, 62 Mo. 150.

Notice, actual or constructive, must be given in every action or proceeding in personam, in order that the court may acquire jurisdiction over the party, and thus make its judgment binding and conclusive.

Webster v. Reid, 52 U.S. 11 How. 437 (13: 761); Walden v. Craig,39 U. S. 14 Pet. 154 (10: 397); Hollingsworth v. Barbour, 29 U. S. 4 Pet. 475 (7:926); Thatcher v. Powell, 19 U. S. 6 Wheat. 119 (5:221).

Even in a proceeding in rem no judgment or decree is binding without notice.

The Mary, 13 U. S. 9 Cranch, 126 (3: 678). The validity of the statute in regard to the duties of an administrator pendente lite has been drawn in question in this case, on the ground that it has not provided for his giving notice of his final settlement, and for that reason it is repugnant to the first section of

The federal question stands in front of the equity question and completely bars the entrance to it.

The defendant was only entitled to five per cent commission.

Hawkins v. Cunningham, 67 Mo. 415. The following cases show what constitutes due process of law, and what does not.

Hagar v. Reclamation Dist. 111 U. S. 701 (28:569); Davidson v. New Orleans, 96 U. S. 97 (24:616); Foster v. Kansas, 112 U. S. 201 (28: 629); Kennard v. Louisiana, 92 U. S. 480 (23: 478); Slaughter House Cases, 83 U. S. 16 Wall. 36 (21:394); Pennoyer v. Neff, 95 U. S. 714 (24: 565); Boswell v. Otis, 50 U. S. 9 How. 336 (13: 164); Webster v. Reid, 52 U. S. 11 How. 437 (13:761); Nations v. Johnson, 65 U. S. 24 How. 195 (16:628); Murray v. Hoboken L. & 1. Co. 59 U. S. 18 How. 272 (15:372).

Under the system of code pleading in Missouri there is but one form of action; that is, by petition.

Gen. Stat. Mo. chap. 165, p. 658, § 3; chap. 161, p. 651, § 1; Tyler v. Maguire, 84 U. S. 17 Wall. 285–288; (21:584, 585); Kerr v. Simmons,

82 Mo. 269; Pier v. Heinrichoffen, 52 Mo. 333; | State v. Carroll, 63 Mo. 156.

tion.

Bliss, Code Pl. 2d ed. 821; Hess v. Young, 59 Ind. 379; Smith v. Sims, 77 Mo. 269; Sharkey v. McDermott, 8 West. Rep. 737, 91 Mo. 647; Smiley v. Smiley, 80 Mo. 44.

Mr. Justice Harlan delivered the opinion of the court:

The only question, among those presented, of which this court can take cognizance, is whether the statute of Missouri which authorizes a special administrator, having charge of the estate of a testator pending a contest as to the validity of his will, to have a final settlement of his accounts without giving notice to distributees, and which settlement, in the absence of fraud, is deemed conclusive as against such distributees,--is repugnant to the clause of the Constitution of the United States forbidding a State to deprive any person of his property without due process of law. We have no difficulty in answering this question in the negative. Without stating all the grounds upon which this conclusion might be rested, it is sufficient to say that, in matters involved in the accounts of such special administrator, the ex

ecutor or administrator with the will annexed represents all claiming under the, will. The regular representative of the estate, before passing his receipt to the special administrator, has an opportunity to examine this settlement, and, if it is not satisfactory, to contest its correctness by some appropriate proceeding. When an executor or administrator with the will annexed proposes to make a final settlement of his own accounts, he is required to give notice to creditors and distributees; for there are no other representatives of the estate. But when a special administrator ceases to act as such, that is, when his functions cease by operation of law,he must account for the property and estate in his hands to the executor or administrator with the will annexed, who, in receiving what had been temporarily in the charge of the former, acts for all interested in the distribution of the estate. As, therefore, the regular representative of the ate has an opportunity to contest the final settlement of the special administrator before giving him an acquittance, it cannot be said that the absence of notice to the distributees of such settlement amounts to a deprivation of their rights of property without due process of law.

The judgment is affirmed.

UNITED STATES, Appt.,

v.

WILLIAM G. WELD ET AL., Surviving Partners of WILLIAM F. WELD AND COMPANY.

(See S. C. Reporter's ed. 51-58.)

Jurisdiction of court of claims-suit dependent on treaty-section 1059, Rev. Stat.-expenses of Geneva Arbitration.

1. A suit against the United States to recover an unsatisfied part of a judgment, rendered in favor of

2. The claimants do not seek to recover upon specific appropriation made in the Act of June 2, any obligation created by that Treaty but upon the 1886. The claim, therefore, is founded upon a law of Congress, within the meaning of section 1059, Revised Statutes, and is one of which the court of claims has jurisdiction.

3. The dependency of the claim upon the Treaty is too remote to come within the section of the statute, which contemplates a direct connection between the Treaty and the claim, in order to exclude the latter from the jurisdiction of the court of claims. 4. The accounting officers of the Treasury Department were in error in charging to and deducting from the fund the expenses of the Tribunal of penses had already been provided for by the Act Arbitration at Geneva. The payment of those exof December 21, 1871, and were not chargeable to this fund. [No. 1366.]

Submitted March 20, 1888. Decided April 16,

1888.

APPEAL from a judgment of the Court of Claims in favor of claimants in a suit to recover an unsatisfied part of a judgment rendered in the Court of Commissioners of Alabama Claims, that had been improperly withheld from claimants by the Treasury Department. Affirmed.

The facts are fully stated in the opinion. Messrs. A. H. Garland, Atty-Gen., and Robert A. Howard, Asst. Atty-Gen., for appellant:

This claim is excluded from the jurisdiction of the court of claims by section 1066, Revised Statutes, because it is a claim growing out of and dependent upon treaty stipulations.

Meade v. U. S. 76 U. S. 9 Wall. 691 (19:687); Great Western Ins. Co. v. U. S. 112 U. S. 193, 197 (28: 687, 688); Alling v. U. S. 114 U. S. 562 (29: 272).

Section 1066, Revised Statutes, is not repealed by the Act of March 3, 1887.

Henderson's Tobacco, 78 U. S. 11 Wall. 652, 657 (20: 235, 237); Daviess v. Fairbairn, 44 U. S. 3 How. 636, 646 (11: 760, 765); Jackson v. State, 12 Ga. 1; People v. Durick, 20 Cal. 94; Commonwealth v. Carpenter, 100 Mass. 204; Distilled Spirits, 78 U. S. 11 Wall. 356 (20: 167); U. S. v. Freeman, 44 U. S. 3 How. 556 (11: 724); Townsend v. Little, 109 U. S. 504, 512 (27: 1012, 1015).

The Government cannot be sued without its consent in courts of its own creation.

U. S. v. Clarke, 33 U. S. 8 Pet. 436, 444 (8: 1001, 1004); Cary v. Curtis, 44 U. S. 3 How. 236, 245 (11: 576, 581); Beers v. Arkansas, 61 U. S. 20 How. 527 (15: 991); U. S. v. Lee, 106 U. S. 196 (27: 171).

Messrs. Samuel Shellabarger, and Jeremiah M. Wilson, for appellees:

Section 1066, Revised Statutes, is superseded and repealed.

Wakefield v. Phelps, 37 N. H. 296; Farr v. Brackett, 30 Vt. 344; Giddings v. Cox, 31 Vt. 607 State v. Conkling, 19 Cal. 501; U. S. v. Claflin, 97 U. S. 551 (24: 1084); Norris v. Crocker, 54 U. S. 13 How. 429 (14: 210); King v. Cornell, 106 U. S. 396 (27: 60).

Legal signification of the words, "growing