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the present term, and the questions to be determined have respect to the same subject matter which was in controversy in that case, and come before the court upon the same pleadings and testimony.

in fault; and under the agreement of the parties that the answer should operate as a cross libel, a decree was entered in favor of Chamberlain et al., for the amount of the damage occasioned to the propeller. Ward et al., as

The questions in that case, and the conclusions there stated, and the reasons for them, are applica-owners of The Atlantic, appealed to the circuit

ble to this case and need not be repeated.

Respondents in a pending libel have the right, in a proper case, to institute a cross libel to recover damages against the libelants in the primary suit; but they should file their libel, take out process, and have it served in the usual way.

When that is done, the libelants in the first suit regularly become respondents in the cross libel, and as such, they must answer or stand the conse

quences of default.

Argued Feb. 15, 1859. Decided Mar. 11, 1859.

APPEAL from the Circuit Court of the
ed States for the Southern District of Ohio.
The case is stated by the court.
See, also, the preceding case, of which this
case is a branch.

court, where the decree of the district court dismissing the libel and awarding damages to the propeller, as upon a cross libel, was in all things reversed. The reversal was made upon the ground that the collision was the result of mutual fault, and that the damages and costs ought to be equally divided. Injuries had been sustained ay the propeller to the amount of $3,000, and the agreed value of the steamer at the time of her loss was $75,000, and accord

Unit-ingly a decree was entered in favor of Ward et al. for the sum of $36,000, together with a moiety of the costs in both courts. From that decree Chamberlain et al. appealed to this court, and the appeal was regularly docketed, and the case has been heard and decided by the court, upon the libel, answer and proofs, as exhibited in the transcript. At the same time Ward et al., the present appellants, also appealed

Messrs. N. H. Swayne and John S. New. berry, for appellants.

Messrs. R. P. Spalding and H. Stanbery, for appellees.

See abstract of argument in the preceding

case.

Mr. Justice Clifford delivered the opinion of the court:

from so much of the decree of the circuit court as found The Atlantic in fault, and directed that the damages should be divided. They ap pealed to the respondents in the cross libel, and under the agreement before referred to, as sanctioned in the district court, filed a separate copy of the record, and regularly docketed the appeal, as in the case of a cross libel, the answer in the other record constituting the libel in this case.

This is an appeal in admiralty from a decree of the Circuit Court of the United States for the Southern District of Ohio. The appellants in this suit were the libelants in the case of Ward v. Chamberlain et al., decided at the pres- We have been thus particular in adverting ent term, and the questions to be determined to these proceedings, in order that the relation have some respect to the same subject-matter which the respective parties bear to this conwhich was in controversy in that case, and come troversy, and the state of the pleadings, may before the court upon the same pleadings be fully and clearly understood, and for the and testimony. In that case, Ward et al., as purpose of remarking that they are unusual, owners of the steamer Atlantic, filed their libel and do not meet the approval of this court, in the district court against Chamberlain et and ought not to be drawn into precedent. Real., as owner of the propeller Ogdensburg, spondents in a pending libel have the right, in to recover the damage sustained by the steamer a proper case, to institute a cross libel to rein a collision which occurred between those cover damages against the libelants in the privessels on the 20th day of August, 1852, while mary suit; but they should file their libel, take navigating on the waters of Lake Erie. After out process, and have it served in the usual the process was served, Chamberlain et al. ap way; and when that is done, the libelants in peared and filed their answer to the libel. In the first suit regularly become respondents in the answer, after setting up several defenses, the cross libel, and, as such, they must answer they alleged, among other things not necessary or stand the consequences of default. Regu to be noticed, that the collision was not occa-larity in pleading is both convenient and essensioned by the negligence, inattention, or want of proper care and skill, on the part of the master or crew of the propeller, but wholly through the fault, neglect, and unskillfulness, of the master and crew of the steamer, and set forth the grounds on which those allegations were based, and prayed that their answer to the libel might also be taken as a cross libel in their be half against Ward et al., to recover the damage which the propeller sustained by the collision. On the 26th day of April, 1853, the parties entered into an agreement, which is a part of this record, that the answer of the respondents should operate as a cross libel, and that the claims of both parties should be considered by the court in weighing the evidence, and be adjudicated upon in the final decree. Afterwards, at the final hearing in the district court, on the merits of the case, the libel was dismissed upon the ground that the steamer was wholly

tial in judicial investigations, and such departures from the usual practice as are exhibited in this record ought not to receive countenance. This appeal was taken, and has been prosecuted upon the ground that the circuit court erred in coming to the conclusion that The Atlantic was in fault. That question we have already considered and decided in the other appeal, and the conclusions there stated, and the reasons for them, are applicable to this case. As before remarked, both appeals were taken from the same decree, and the questions presented for the decision of the court are in all respects the same, and depend upon the same testimony. In that case, the court held that The Atlantic was chargeable with fault upon three grounds:

1. Because the officer in charge of her deck did not exercise proper vigilance to ascertain the character of the approaching vessel, after

he discovered the white lights, which subsequently proved to be the white lights of the propeller.

2. That she was also in fault, because the officer of her deck did not seasonably and effectually change the course of the vessel, or slow or stop her engines, after he discovered those lights, so as to prevent a collision.

3. That she was also in fault, because she did not have a vigilant and sufficient lookout. Our reasons for these conclusions are fully stated in the former case, and need not be repeated. Having already decided that the propeller also was in fault, the necessary result is, that the decision of the Circuit Court was correct.

The decree of the Circuit Court, therefore, is affirmed, without costs.

Dissenting, Mr. Justice Grier, and Mr.

Justice Daniel.

SELDEN F. WHITE, Piff. in Er.,

v.

THE VERMONT & MASSACHUSETTS RAILROAD COMPANY.

(See S. C., 21 How., 575-578.)

Bonds of railroad company-blanks in, by whom filled-construction of-negotiability.

Bonds of defendant in error were issued by the Company, in regular course and for a sufficient consideration, to a citizen of Massachusetts, and were payable in blank, no payee being inserted, and came into the hands of the plaintiff through several intervening holders, in regular course. Held, that it was the intention of the Company, by issuing the bonds in blank, to make them negotiable and payable to the holder, as bearer, and that the holder might fill up the blank with his own name or make them payable to himself or bearer, or

to order.

suit in the court below.

Until the plaintiff choose to fill up the blank, he is to be regarded as holding the bonds as bearer, and held them in this character till made payable to himself or order. At that time he was a citizen of New Hampshire, and therefore competent to bring the Repeated decisions by courts and judges of the highest respectability, have settled the question of the negotiability of this class of securities. Argued Mar. 8, 1859. Decided Mar. 11, 1859. ERROR to the Circuit Court of the United states for the District of Massachusetts.

NOTE.-Negotiability of railroad bonds. Bonds issued by a railroad company and payable in blank, usually secured by a mortgage to trustees are negotiable securities. Mercer County v. Hacket, 68 Ü. S. (1 Wall.), 83: Gelpcke v. City of Dubuque, 68 U. S. (1 Wall.), 176, 206; Bronson v. La Crosse R. B. Co., 69 U. S. (2 Wall.), 283.

The negotiability of such bonds as are ordinarily issued by municipal, railroad and other corporations, drawn payable to bearer, and intended for sale in the public market, is sustained to a full extent by many adjudications. 64 U.S. (23 How.), 381; Woods v. Lawrence Co., 66 U. S. (1 Black), 386; Moran v. Com'rs of Miami Co., 67 U. S. (2 Black), 722; Mercer Co. v. Hacket, 68 U. S. (1 Wall.), 95; Gelpeke v. City of Dubuque, 68 U. S. (1 Wall.), 175; Van Hostrup v. Madison City, 68 U. S. (1 Wall.), 291; Meyer v. Muscatine, 68 U. S. (1 Wall.), 382; Thomson r. Lee County, 70 U. S. (3 Wall.), 227; Murray v. Lardner, 69 U. S. (2 Wall.), 110; Rogers v. Burlington, 70 U. 8. (3 Wall.), 654; Railroad Company v. Howard, 74 U. S. (7 Wall.), 392; Brainerd v. N. Y. & Harlem R. R. Co., 25 N. Y., 496; Conn. Mut. L. Ins. Co. v. Cleveland, &c., R. R. Co., 41 Barb 9; 15 Conn., 502; 31 Conn., 342; 20 Ind., 467; 18 Ind., 96; Railway v. Clearlay, 13 Ind., 161; Chapin v. Vt. & Mass. R. R.

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This is but carrying out certain familiar decisions of the English courts in regard to exchequer bills.

Gorgier v. Mieville, 3 B. & C., 45; Wookey v. Pole, 4 B. & Al., 1; Lang v. Smyth, 7 Bing., 284; Redf. on Railw., 595, 596; 1 Pars. Cont., 240.

Following these authorities, we have the right at all events to recover upon the money counts. The instruments sued were payable to bearer. They do not differ from promissory notes of a private individual, payable to his own order, and indorsed in blank before being issued.

Gorgeir v. Mieville, 3 B. & C., 45; Cruchley v. Clarance, 2 M. & S., 90.

2. If these instruments were not originally negotiable, they were so when this action was brought.

Statute of Mass., 1852, ch. 76; 1850, ch. 233; Chapin v. V. & M. R. R. Co., 8 Gray,

575.

3. The fact that these instruments bear the corporate seal of the Company, does not exclude them from being considered promissory notes. The seal is but the evidence of a corporate act. It is the proper evidence of every corporate act, yet it does not make every instrument so attested of necessity a deed. An instrument attested by a corporate seal should be examined before its character can be definitely pronounced upon.

Co., 8 Gray, 575; Craig v. City of Vicksburg, 31 Miss., 216; Arents v. Commonwealth, 18 Gratt,. 338; 11 Wis., 488; 19 Iowa, 213; 16 Ohio St., 145; Nat'l Exch'ge B'k v. Hartford, &c., R. R. Co., 8 R. I., 379; Langston v. S. C. R. R. Co., 2 So. Car. N. S., 248.

No judgment conceding their negotiability has denied the additional feature of their similitude of chattels. City of Memphis v. Brown, 11 Am. L. Reg., 629; 5 Am. L. T. 424; 6 West, Jur., 495.

Bonds of railroad companies and other corporations payble to A, or his assigns, and assigned by A in blank, are transferable by delivery. Brainerd v. N. Y. & Harlem R. R. Co., 10 Bosw., 332.

State bonds and railroad bonds are negotiable securities; the title to which will pass by delivery, and unlike certificates of stock, are valid securities in the hands of bona fide holders against existing equities between the parties. Finnegan v. Lee, 18 How., Pr., 186.

Where in an instrument for the payment of money-railroad bonds-the name of the payee is left blank, with the intention that such instrument may be transferred by delivery, any lawful holder may fill the blank with his own name as payee. Hubbard v. N. Y. & Harlem R. R. Co., 14 Abb. Pr., 275; S. C., 36 Barb., 286.

Thus an answer by a corporation in equity, must be under its seal.

2 Daniels Ch. Pr., 844. Yet it is not a deed.

See, also, 1 Kyd Corp., 267; Grant, Corp., 55. 4. If it be treated as a deed, then this plaintiff was not an assignee of a contract, but the original obligee. This was the intent of the contract.

5. The same is true of these contracts, whether they be treated as deeds or as notes not payable to the bearer. It is in every respect equivalent to a blank signature, intended to have a note written above it, at the discretion of the person to whom it is delivered.

Terira v. Evans, cited in 1 Anstr., 228; Cruchley v. Clarance, 2 M. & S., 90; Crutchly v. Mann, 5 Taunt., 529; 1 Marsh., 29; Atwood v. Griffin, 2 C. & P., 368.

6. The blank having been purposely left to be filled, we, as bona fide holders, might well fill it.

Story, Prom. N., sec. 37; Bayl. Bills, ch. 1, sec. 10; Cruchley v. Clarance, 2 M. & S., 90; Atwood v. Griffin, 2 C. & P., 268; Ryan & M., 425; 1 Stockton, 693.

7. We submit that it is not admissible for the defendant to show that it issued such obligations in a form which gave no person a right of action upon them. The instrument appears only as filled up. The defendant does not suggest any alteration of its tenor (unless it first admit it to have been payable to bearer), but offers to show that it has committed a fraud upon the public by issuing an instrument which was originally void, and this without any authority in any person whatever to complete it. Cases already cited.

Mr. Henry C. Hutchins, for defendant in error:

1. The instruments declared upon being under seal, are not promissory notes within the Statute of Anne, and are not, therefore, negotiable; more especially as there was no payee named in them, and no words of negotiability when issued. When transferred to the plaintiff, they were at most choses in action.

Glyn v. Baker, 13 East, 509; Clark v. Farm ers' Mf. Co., 15 Wend., 256; Lewis v. Wilson, 5 Blackf., 370; Brown v. Lockhart, 1 Mo., 409, (289); Gorgier v. Mieville,3 B. & C., 45; Warren v. Lynch, 5 Johns., 239; Higgins v. Bogan, 4 Harr. Del., 30; Parks v. Duke, 2 McCord, 380: Foster v. Floyd, 4 McCord, 159; Barry v. Mer chants' Exchange Co., 1 Sandf. Ch., 280; Enthoven v. Hoyle, 13 C. B., 373; Hibblewhite v. M'Morine, 6 M. & W., 200.

The cases cited by the plaintiff in error, and ap parently in conflict with the above, are distinguished from the present case in this, that they were all cases where the bonds were payable to bearer, or to a person named or bearer; they were complete contracts.

2. The Act of March 30,1852, of the Statutes of Massachusetts, does not apply to these bonds. (a) Because they do not come within its terms. They were not payable to the bearer or some person designated, “bearer," or "order." Chapin v. V. & M. R. R. Co., 8 Gray., 575; Sup. Ct. of Mass.

(b) Because the plaintiff became the holder of these bonds before the passage of the Art in question.

3. If the Act of March 30,1852, was held to be applicable, it would impair the obligation of the contract. It would change the defendant's obligation, fram a chose in action to a negotiable instrument, and would be unconstitutional.

Planters' Bank v. Sharp, 6 How., 301; Dundas v. Bowler, 3 McL., 397.

4. The court below had no jurisdiction of this suit.

11th sec. Judicary Act of 1789; 1 U. S. Stat. at L., 79; Sheldon v. Sill, 8 How., 441.

It being admitted by the agreed statement that the bonds in suit were first issued to a citizen of Mass., who could not have brought suit thereon in the court below, the plaintiff cannot maintain this action, because if there was a valid contract made by the defendant with anyone, it must have been with the first taken, and these bonds being unnegotiable, the plaintiff must claim as assignee or not at all.

5. The insertion of the words "Selden F. White," and the words "or order," by the plaintiff, in these bonds, without the knowledge or consent of the defendants, was a material alteration, and vitiated them.

Story, Prom, N., sec. 37; Bruce v. Westcott, 3 Barb.,374; Johnson v. Bank U. S., 2 B. Mon., 310; Knill v. Williams, 10 East, 431.

6 In the case of a bond, there is no presumed authority in the holder to insert his own name as payee and bring suit. To allow it, would be to change the very character of the instrument. Enthoven v. Hoyle, 13 C. B., 373; Hibble white v. M'Morine, 6 M. & W., 200.

7. If this plaintiff, having derived title to these bonds from a citizen of Mass., could fill up the blanks with his own name and bring his action in the court below by virtue of the Statute of Mass., when but for that Act he could not bring such action, it would follow that the Legislature of Mass. can enlarge the jurisdiction of the courts of the United States. Dromgoole v. Bank, 2 How., 241.

Mr. Justice Nelson delivered the opinion of the court:

This is a writ of error to the Circuit Court. of the United States for the District of Massachusetts.

The suit was brought in the court below by the plaintiff (White) against the Company, upon several bonds issued by the same.

The case was presented to the court upon an agreed state of facts, and, among others, that the bonds in question were issued by the Company, in regular course, and for a sufficient consideration; and that payment had been demanded and refused. Coupons for the accruing interest, previous to the maturity of the bonds, had been duly paid.

It was further agreed that bonds of this description, issued by the Company, were sold in the market, and passed from hand to hand by delivery, at prices varying according to the state of the market; and that those in question were issued at or about their date, to a person a citizen of Massachusetts, and were payable in blank, no payee being inserted; that they came into the hands of the plaintiff through several intervening holders, in regular course; and that he then and since lived in the State of New Hampshire, and, before this suit was brought, filled up the blank by inserting "Sel

den F. White, or order," the name of plaintiff, without the knowledge or consent of the defendants.

The court ruled that the suit could not be sustained, for want of jurisdiction.

The ground upon which this ruling below is sought to be maintained is, that these bonds were issued to citizens of Massachusetts; and as they could not be regarded as negotiable instruments, or, if negotiable, not payable to bearer, the plaintiff was disabled from suing in the federal court, within the prohibition of the 11th section of the Judiciary Act. 15 Pet., 125; 2 Pet., 318; 3 How.. 574, 8 How., 441. In answer to this ground, we think it quite clear, on looking into the agreed state of facts, in connection with the bonds and the mortgage given to secure their payment, that it was the intention of the Company, by issuing the bonds in blank, to make them negotiable, and payable to the holder, as bearer, and that the holder might fill up the blank with his own name, or make them payable to himself or bearer, or to order. In other words, the Company intended, by the blank, to leave the holder his option as to the form or character of negotiability, without restriction. If the utmost latitude, in this respect, was not intended, why leave the payee in blank when issuing the bonds, or why not fix the limit of negotiability, or negative it altogether? To adopt any other conclusion would seem to us to be unjust to the Company, for then the blank would be wholly unmeaning; or if any, a meaning calculated, if not in tended, to embarrass the title of the holder.

Assuming, then, that these bonds were intended to be made negotiable, we do not see the difficulty suggested in maintaining the suit in the federal court; for, until the plaintiff choose to fill up the blank, he is to be regarded as holding the bonds as bearer, and held them in this character till made payable to himself or order. At that time he was a citizen of New Hampshire and, therefore, competent to bring the suit in the court below.

As to the negotiability of this class of securities, when shown to be intended that they should possess this character by the form in which issued, and mode of giving them circu lation, we think the usuage and practice of the companies themselves, and of the capitalists and business men of the country, dealing in them, as well as the repeated decisions or recognition of the principle by courts and judges of the highest respectability, have settled the question.

Morris Canal, etc., Co. v. Fisher, 1 Stockton, 667, 699; Delafield v. Illinois, 2 Hill, N. Y., 177; 8 S. C., Paige Ch., 527; Mech. Bank v. N. Y. and N. H. R. R. Co., 13 N. Y., 625; Carr v. Le Fevre, 27 Penn., 418; Craig v. The City of Vicksburg, 31 Miss., 216; Chapin v. The Vt. and Mass. R. R. Co., 8 Gray, 575, decided Sept. 7, 1857, in Sup. Ct. of Mass.

Indeed, without conceding to them the quality of negotiability, much of the value of these securities in the market, and as a means of fur nishing the funds for the accomplishment of many of the greatest and most useful enterprises of the day, would be impaired. Within the last few years, large masses of them have gone into general circulation, and in which capitalists have invested their money; and it is

not too much to say, that a great share of the confidence they have acquired, as a desirable security for investment, is attributable to this negotiable quality, as well on account of the facility of passing from hand to hand, as the protection afforded to the bona fide holder.

It is true that in England the law is, that a bond delivered in blank, as it respects the payee, is void, and the blank incapable of being filled up by the holder, either upon an implied or express parol authority from the maker. This is maintained upon the principle that the authority of an agent to make a deed for another must be by deed; and also, that to admit the parol authority to fill up the blank would, in effect, make a bond transferable and negotiable, like a bill of exchange or exchequer bill. Hibblewhite v. M' Morine, 6 Mees. & W., p. 200, and Enthoven v. Hoyle et al., in the Exch., 9 Eng. L. & Eq., 434.

The law had been otherwise held by Lord Mansfield, in the case of Texira v. Evans, cited in Masten v. Miller, 1 Anst., 228; but was distinctly overruled by Park, B., in delivering the opinion of the court in the case first above cited, and the opinion re-affirmed by him still more strongly in the second case.

Courts of the highest authority in this country have followed Lord Mansfield, and have not hesitated to meet the fears expressed by Park, B. (that the effect would be to make bonds negotiable), by admitting the consequence. Chief Justice Marshall, in the case of The United States v. Nelson & Myers, 2 Brock., 64, hesitated to reach this conclusion, but expressed a strong belief that, at some future day it would be, by this court.

We think, for the reasons above given, the ruling of the court below cannot be upheld, and that the judgment should be reversed, with a venire de novo.

Cited -1 Wall., 95, 206, 575; 7 Wall., 105; 8 Wall.. 496; 11 Wall., 150; 14 Wall., 293; 6 Ben., 177; Deady, 495; 10 Blatchf., 288.

JOHN M. WALKER, Appt.,

v.

JONATHAN B. H. SMITH.

(See S. C., 21 How., 579–582.)

Virginia land-warrants-proprietor of, who is -superior equity of a claimant.

The Act of Congress of 3d March, 1835, made a further and apparently final appropriation of lands, to be applied to the satisfaction of Virginia military land-warrants.

This appropriation was sufficient to pay ninety per cent. of the warrants received.

Thus the matter stood for fourteen years, when at

length, on the 31st of August, 1852, Congress passed an Act, which authorized an issue of land scrip in favor of the present proprietors of any outstanding military land-warrants, &c. This Act has been but the ten per cent. not given on the satisfied and construed to include not only unsatisfied warrants, surrendered warrants.

The question as to who may be considered as the satisfied warrants must be decided by the Secre"present proprietor" of these surrendered and tary of the Interior in the first instance, by the rules, customs, and practice of the Land Office. unsatisfied ten per cent. of a quantity of said warWhere the defendant, assignee or grantee of the rants, had paid a large and valuable consideration

without any notice of plaintiff's claim, had made his proofs and had the decisions of the Land Office in his favor; held that he had obtained an advantage of which a court of equity would not deprive him, under the circumstances.

Argued Mar. 1, 1859. Decided Mar. 11, 1859.

Cooper, 3 Russ., 1) has never been applied to equitable interests or estates in land.

Jones v. Jones, 8 Sim. 633; Wilmot v. Pike, 5 Hare, 14; Peacock v. Burt, Coot. Mort., 569, Wiltshire v. Rabbits, 14 Sim., 76.

The American doctrine certainly is, that no such notice is necessary, although proper, to

APPEAL from the Circuit Court of the Unit-secure the fund by preventing payments sign

for the

of Columbia.

The bill in this case was filed in the court below, by the appellant, praying an injunction to prevent the issuing from the General Land Office, to the appellee, of certain scrip; and for the cancellation of a certain assignment, under which the appellee had, by that office, been adjudged entitled to the scrip in question. The court below having entered a decree dismissing the bill, with costs, the complainant took an appeal to this court.

A further statement of the case appears in the opinion of the court.

Messrs. Chilton & Davidge, for appel

lant:

The appellant was, at the passage of the Act of August 31, 1852, the "present proprietor" of the warrants, and as such, by the very terms of the law, entitled to receive the unpaid 10 per cent. He held by a legal title warrant, as signable under the laws both of Virginia and the United States. The language of the Act Act manifestly relates to legal ownership.

Assuming, however, that as regards a legislative grant of this description there can be no inquiry beyond the plain terms of the grant, and that in any case the defense of bona fide purchaser for valuable consideration without notice, could be set up, that defense cannot avail the appellee.

I. Because the appellant holds the legal title and asks relief upon it, and in such case equity follows the law.

Williams v. Lambe, 3 Bro. Ch., 264; Collins v. Archer, 1 Rus. & M., 284, 292; Rogers v. Seale, Freem., 84; Shirras v. Caig, 7 Cranch, 34; Snelgrove v. Snelgrove, 4 Desaus, 288; Fitzsimmons v. Ogden, 7 Cranch, 2.

II. Because the appellant cliams under a prior assignment, and, the appellee not having legal title, qui prior in tempore, potior est in jure. 1 Story Eq. Jur., sec. 64, C. and D.

3. Because the appellee has no title whatever. Hallett v. Collins, 10 How., 174.

III. The decision below was on the ground that the appellant lost his superior equity, by his failure to file his assignment in the General Land Office, where search was made by the ancestor of the appellee, and the case of Jud son v. Corcoran, 17 How., 612, was considered in point.

The Circuit Court erred.

1. There is here no conflict of equitable titles. The appellant holds by as complete a legal title as he could hold stock or negotiable

paper.

Baldwin v. Ely, 9 How., 580.

2. Because the subject matter of this contro versy is not a chose in action, but an interest or estate in land The English doctrine that notice to the debtor or trustee holding the fund, is necessary to complete the transfer of a chose in action (Row v. Dawson, Ryall v. Rowles, 2 White & Tudor's Lead. Cas. Eq., 731-734, and notes; Dearle v. Hall, and Loveridge v.

second assignee in ignorance of the prior assign. ment.

Muir v. Schenck, 3 Hill, 228;' U. S. v. Vaughan, 3 Binn., 394; Stevens v. Stevens, 1 Ashm., 190; Bholen v. Cleveland, 5 Mas., 174; Warren v. Copelin, 4 Met., 594; Dix v. Cobb, 4 Mass., 512; Wood v. Partridge, 11 Mass., 488; Littlefield v. Smith, 17 Me., 327; Story, Confl. L., sec. 396.

3. Even assuming that the principles relating to the assignment of choses in action apply here the general rule still is, qui prior in tempore, potior est in jure, unless the first assignee has been guilty of laches, whereby he has enabled the assignor to practice a fraud on the assignee.

Judson v. Corcoran, 17 How., 612.

To bring the case within the exception to the general rule, there must be fraud or gross negligence on the part of the first assignee and diligence on the part of the second assignee.

The neglect relied on here, is the failure to file in the General Land Office. The diligence is inquiry there.

Counsel reviewed the circumstances of the case, and contended that appellant was not to be held to have lost his priority, by a failure to file his assignment until a few months after the second assignment.

IV. The appellee did not obtain the legal title by the letter of the Commissioner of the General Land Office, of August 3, 1854.

1. Because the Secretary of the Interior, much less a subordinate unknown to the law, had not jurisdiction inter partes.

Comegys v. Vasse, 1 Pet., 193.

2. Because the Secretary of the Interior did not act in the premises.

3. Because the letter of the Commissioner clearly shows that even his action was not final.

V. As to the consideration of the assignment to appellant, the answer by appellee denies any real consideration on information only, not even belief. A replication was filed, but no evidence offered by the appellee:

Messrs. George E. Badger and J. M. Carlisle, for appellee:

1. As the alleged assignment to the appellant, the answer impeaches it in form and substance, and particularly denies that it was founded on any consideration whatever. The answer is responsive to the bill, and is evidence against the appellant.

2. The warrants were satisfied, surrendered and canceled by the voluntary act of the hold

ers.

3. The case is within the principles of Judson v. Corcoran, 17 How., 612. The points decided there are in support of the appellee in this cause, and support the correctness of the decree below.

1st. The assignment to the appellee "was fair and accepted on his part, without knowledge" of the prior assignment, if any, to the appellant.

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