he thinks they were in the possession of his counsel, Mr. Platt, when the amended answer in that suit was drawn. The subject would naturally be revived when the suit in New York was brought, in 1869, yet we do not find in the complaint in that suit any mention of the agreement [260] claimed to have been evidenced by the letters. The establishing in that suit, by the testimony of Mr. Barlow, of the agreement now set up, would have disposed of the controversy. Can more weight be given to his recollection seven years later, as to the contents of letters which he had last seen more than fifteen years before he testified? There never was any suit brought distinctly based on the agreement now set up, until the present suit, brought more than twenty-three years after the agreement is alleged to have been made, and more than fifteen years after the executors were fully notified by Maffitt, acting for and by the direction of Chouteau, of the claim made by Chouteau. That there were some letters which Mr. Barlow saw, and the contents of which he believes he states correctly, is not to be questioned; but, in view of all the testimony in the case, it cannot be held that the agreement set up as contained in the letters is proved with sufficient certainty to make it the foundation of the decree made by the Circuit Court. It is proper here to refer to another matter. At the time of Sanford's death, in May, 1857, he was an equal partner with Pierre Chouteau, Jr., in the firm known as Chouteau, Jr., & Co., of New York; and he was also a partner, together with Pierre Chouteau, Jr., and three other persons, in the firm of P. Chouteau, Jr., Sanford & Co. In October, 1858, negotiations were begun between P. Chouteau, Jr., and Messrs. Barlow and Gebhard, as executors of Sanford, for a compromise of the affairs of those two firms. The executors, at the time, claimed that they had a right to a receivership of the assets of all the firms in which Mr. Sanford had been interested. On October 13, 1858, Chouteau, being in New York, prepared and verified a petition, addressed to the Surrogate of New York County, wherein it was stated that the business of P. Chouteau, Jr., & Co., of New York, had resulted in heavy losses, owing to unfortunate operations undertaken in the lifetime of Sanford; that the business of P. Chouteau, Jr., Sanford & Co., had produced large profits; that the accounts of P. Chouteau, Jr., & Co., of New York, had been made up as accurately as it could be done; that, under the most favorable aspect, there would, on the winding up of [261] the affairs of that firm, remain an indebtedness from Sanford to the petitioner, of not less than $363,323.61; that the amount which Sanford's estate would receive from the firm of P. Chouteau, Jr., Sanford & Co., would not exceed $198,558.06; that the petitioner was willing to accept the balance of the share of the estate of Sanford in the assets of the firm of P. Chouteau, Jr., Sanford & Co., in compromise and satisfaction of all his claims against the estate of Sanford; and that this compromise would result in an advantage to the estate of Sanford in a sum not less than $164,765.55. The petition was not presented to the surrogate, but the negotiations were continued and, in October, 1859, the executors of Sanford presented a petition to the surrogate, verified by Mr. Barlow, containing the same statements as the Chouteau petition and, by an order made in November, 1859, by the surrogate, the executors were authorized to carry out the compromise on the terms above mentioned, as is stated in the bill in this suit. Then Chouteau, on December 1, 1859, executed the release stated in the bill. That release contained at its close this clause: "Nothing herein contained is to affect the rights which the said Pierre Chouteau, Junior, now has, either as surviving partner or by assignment, to collect all the assets of any firm formerly existing at St. Louis, in the State of Missouri, in which the said John F. A. Sanford was formerly a partner, for his own sole use and benefit, according to the terms agreed upon on the retirement of said John F. A. Sanford from said firms, or to affect or impair the right of the said Pierre Chouteau, Junior, to said assets." The executors of Sanford knew, from this reference in the release of December 1, 1859, that some terms had been agreed upon on the retirement of Sanford from the St. Louis firm. If the letters in their possession showed as distinctly as is now claimed what those terms were, it was easy to ascertain those terms from the letters. Instead of doing so, we find Gebhard, in his letter to Maffitt, of September 15, 1860, asking Maffitt to furnish the executors with a copy of the agreement with Sanford referred to in Chouteau's release of December, 1859, as having been made [262] when Sanford retired from the St. Louis firm. As the case of the plaintiffs depends upon their affirmatively establishing the agreement set up, what most directly bears upon its existence has been especially alluded to. But the whole course of the evidence in the case fortifies the conclusion at which we have arrived. We can, however, only summarize it. Sanford at all times regarded himself as a party in interest in the winding up of the affairs of the St. Louis firm, and of the "outfits" in the charge of Borup and Sibley. He never claimed any independent interest in the Minnesota lands. The other copartners, after 1852, sent to him accounts of the affairs of the firm, and treated him as interested in its liquidation and entitled to know about such accounts. The arrangement really was that the "outfits" in the Upper Mississippi under the charge of Borup and Sibley, and which were part of the business of the dissolved firm, should continue to be carried on as part of that business till they could be wound up. All lands in Minnesota were an outcome of those outfits, and were thus a part of the assets of the firm. Sanford's interest in those outfits was continued, but it remained subject to the debts of the outfits and to the debts of the firm. Pierre Chouteau, Jr., acted always in accordance with that view. His son, Charles P. Chouteau, always had that understanding of the arrangement. The clause before cited, at the end of the release of December 1, 1859, in saying that the release is not to affect the rights which Chouteau "now has" to collect all the assets of the St. Louis firm for his own use and benefit, or to affect his right to those assets, may be very well satisfied by applying the word "now" to the condition of things then existing, and to the claims set forth in the complaint in the suit in the State Court of Minnesota, JOHN J. FREEMAN Trustee, Appt., v. A. H. H. DAWSON. (See S. C., Reporter's ed., 264-272.) Jurisdiction as to amount-execution on judg ment-time of levy-defeat of levy. brought in February, 1861. He had individually advanced large sums before that time, to pay the debts of the firm, and undoubtedly contemplated a deficiency of assets, including the real estate in Minnesota. That real estate was then held by him as part of the assets of the dissolved firm, and he always afterwards honestly and faithfully treated it as held by him in trust [263] to liquidate the debts of that firm. It was substantially the only resource in his hands in December, 1859, to repay him his advances. If the two letters then in the possession of Sanford's executors really showed such an agreement as they now claim, it is incredible that they would have accepted the release from Chouteau, with its comprehensive reservation of assets to Chouteau, and not have insisted on ex-dice to either party. cepting from the assets the Minnesota real estate, which at that time was clearly assets of the firm. The entries in the books kept at St. Louis confirm the foregoing view. [264] On the whole case, we are of opinion, that, after the dissolution of the St. Louis firm, the members other than Sanford were entitled to collect and dispose of all its assets, including the Minnesota "outfit" and the Minnesota lands, to liquidate its affairs, without the interference of Sanford; that all claim on their part against Sanford individually was relinquished, leaving recourse only to those assets; and that, if there should be any surplus of those assets, after paying the debts of the firm and the advances of any of the other partners therefor, Sanford's ex ecutors would be entitled to his proper pro portion of such surplus. No judicial accounting has been had on the basis of the rights of the parties as we have defined them. The bill prays that the defendants may account touching the affairs and property of the copartnership and touching the proceeds of any such property. We think the plaintiffs are entitled to such an accounting, and are not barred from it by laches or by the operation of any statute of limitations. If necessary, the circuit court can, in its discretion, allow the pleadings to be amended, with a view to the attainment of justice, on the principles we have laid down. We do not deem it proper now to indicate any rule of accounting in respect to the lands which were not sold and conveyed by Charles P. Chouteau and Julia Maffitt to parties other than the representatives of Pierre Chouteau, Jr., Sarpy and Sire, but leave that question to be determined by the circuit court, on full consideration. As to the lands which were sold and conveyed to parties other than such representatives, the liability should be only for the sums actually realized in good faith from the sales. The accounting may include the other remaining assets of the firm, if any. The decree of the Circuit Court is reversed and the case is remanded to that court, with direction to enter a decree in accordance with this opinion, and to take such further proceedings as may be in conformity therewith. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. 1. From a decree of the circuit court, awarding a 2. A judgment duly recovered is not affected, nor 3. All the proceedings under a levy of execution have relation back to the time of the seizure of the property. 4. A levy of execution, for a debt of the lessee, upon the leasehold estate and upon a cotton press, him, under which the officer has seized the properwith its engine, boilers and machinery, erected by ty, and given due notice of a sale thereof, is not defeated by an order from the clerk, under scal of the court, pursuant to a direction of the judge in varequesting the officer to return the execution uncation, without notice to the judgment creditor, executed; nor by the officer's, upon receiving such order, ceasing to keep actual possession of the propindorsed thereon, to the court, for further direcerty, and returning the execution, with his doings tions. [No. 202.] Argued Jan. 16, 1884. Decided Jan. 28, 1884. APPEAL from the Circuit Court of the United see. States for the Western District of Tennes The history and facts of the case sufficiently Messrs. C. W. Metcalf, S. P. Walker, Mr. Justice Gray delivered the opinion of This is an appeal by the grantee in a deed of trust, from a decree of the Circuit Court of the United States for the Western District of Tennessee, in favor of a judgment creditor of the grantor. The undisputed facts of the case, as shown by the pleadings and the documentary evidence, are as follows: In January, 1878, the owners of two lots of land in the City of Memphis, County of Shelby and State of Tennessee, executed to R. C. Daniel a lease thereof for the term of six years, at a certain rent and with a provision that any improvements or machinery made or erected by the lessee might be removed by him at the end of the lease. Steers and Morse under a contract with Daniel, erected upon the land a cotton press, engine, boilers and machinery; and on August 8, 1878, filed the original bill in this case against him, in the Chancery Court of *Head notes by Mr. Justice GRAY. NOTE.-Jurisdiction of U. S. Supreme Court depends on amount; interest cannot be added to give jurisdiction; how value of thing demanded may be shown; what cases reviewable without regard to sum in controversy. See, note to Gordon v. Ogden, 28 U. IS. (3 Pet.), 33. [265] [266] Shelby County, to enforce a mechanic's lien, The marshal's return upon each execution, after stating the levy and notice, concluded as follows: "And on 17th August, 1878, in obedience to an order of court issued by Hon. John Baxter, I return this writ without further proceedings." The coroner of Shelby County thereupon, on the same day, took possession of the property under the writ of attachment issued upon the bill in equity of Steers and Morse. On November 22, Daniel executed a deed, which was recorded on the next day, of his interest in the leasehold, and in the cotton press with its engine, boiler, machinery and appurtenances, to John J. Freeman, in trust to secure, and to sell for the payment of, debts due from Daniel to various persons, in sums of $6,000 or less, and amounting in all to the sum of $18,370, for moneys borrowed by Daniel to pay for the leasehold and fixtures. On June 6, 1878, A. H. H. Dawson duly re- "Knoxville, Tennessee, August 5, 1878. I am, very truly, etc., Jno. Baxter. U. S. Circuit Clerk, Memphis, Tenn." "To the United States Marshal, Western Dis- In accordance with the instructions of Judge Witness my signature and the seal of said The returns subsequently made by the marshal upon the writs of venditioni exponas show that, upon receiving them, he went upon the land, and found the cotton press being operated by and under the control of Charles Yerger, who claimed to be in possession, in behalf of the sheriff and coroner, under an order of the Chancery Court of Shelby County; that he exhibited his writs of venditioni exponas, and demanded of Yerger possession of the property, which was refused; that he was thereupon directed by the attorneys for Dawson to proceed under those writs to a sale of the property, and gave notice to Daniel of such a sale to take place on March 11; and that on February 12 those attorneys directed "That all proceedings hereunder be suspended until further orders in the premises." [267] On February 18 Steers and Morse filed in the suit in equity an amended and supplemental bill against Dawson, Freeman, Trustee, and the [268] beneficiaries under the trust-deed; and on February 15 removed that suit into the circuit court of the United States, and there moved for a temporary injunction to restrain Dawson and the marshal from further proceeding against the property under the judgments and executions at law. On March 18 that court issued such an injunction, and ordered, with the consent of all the parties, "That the custody and possession by the marshal of said property shall remain as it is undisturbed, and that for the preservation of the property he may employ a day and night watchman for the same, but without in any manner affecting the rights or claim of any par ty hereto; and nothing herein contained shall be held in any manner to affect or release any lien that the defendant Dawson claims to have [269] acquired under his said judgments, executions and liens." The The judgments were duly recovered. The filing of applications to set them aside did not On June 2 the marshal returned the writs of affect the validity of the judgments, nor suspend venditioni exponas, without further proceedings. the right to take out executions thereon. The On June 13, 1879, after answers filed by Daw- continuance of those applications to the next son and answers and cross-bills filed by Free-Term, without prejudice to either party, left [270] man and the beneficiaries under the trust-deed, both parties in statu quo, the applications of the the suit in equity came to a final hearing in the judgment debtor to set aside the judgments uncircuit court, and a decree was entered, by con- determined, and the right of the judgment credsent, ordering and confirming a sale of the lease-itor to enforce the judgments unaffected. hold, and of the press and machinery, establishing the priority of the lien of Steers and Morse, and applying to the satisfaction of that lien, and to the payment of the accrued rent and taxes, the proceeds of the sale, except the sum of $6,000, which was reserved to abide the result of the litigation between Dawson and Freeman. And on July 28, 1880, a final decree was entered, affirming the validity of the judgments and executions, and awarding the fund of $6,000 to Dawson. The opinion is reported in Steers v. Daniel, 2 Flip., 310. Freeman thereupon appealed to this court. By the marshal's deposition and the weight of the whole evidence, the other material facts in the case appear to be as follows: the marshal, on July 9, 1878, at the time of levying the executions issued upon the judgments at law and, with the consent and at the expense of Dawson's attorneys, put a watchman in possession of the premises to protect the property against fire and depredation; and on August 8 showed the letter of the Circuit Judge, and the paper received from the clerk, to Dawson's attorneys, and was told by them that actual possession was not required by law to maintain the levies, and thereupon by their direction withdrew the watchman, knowing that the coroner was about to levy the attachment granted by the state court on the bill in equity of Steers and Morse; and the marshal did not afterwards retain possession in fact of the property. But he did not intend to abandon the levies; and he suspended further proceedings merely in obedience to the order received from the clerk, and for the purpose of submitting to the court the question of the validity of the executions and levies. The levies were duly made by the marshal, The action of the Circuit Judge in directing By the common law, a leasehold interest in The appellee has moved to dismiss the appeal, It is argued for the appellee that, by the law If, as the appellee contends, the property levied ments, having been recovered in the county in which the debtor resided, created a lien from the time they were rendered, which was continued in force by the taking out of the executions and the sale of the property within a year after the rendition of the judgments. Code of Tennessee, secs. 2980, 2982. If, as the appellant contends, the leasehold and fixtures were personal property, the case stands thus: The leasehold interest, though personal property, is an interest in land. The lessee's interest sioner, if his decision is delayed more than six in the fixtures arises out of the agreement con- conversion of the property into money to satisfy the judgment debts, and returned the executions The possession so taken by the coroner, and the conveyance so made by the debtor, cannot impair the validity of the levies. The judgment creditor and the marshal had done everything in their power to perfect them. All the proceedings of the marshal had been indorsed by him on the executions and returned to the court, [272] and thus appeared of record. The levies having been once duly made, and never abandoned or intended to be abandoned, and not needing a continuance of actual possession by the marshal to maintain them, had not been defeated by any extrinsic facts. And the court, upon motion and hearing, determined that the levies continued in force, and ordered writs of venditioni exponas to issue. The marshal was prevented from taking possession of and selling the property under those writs by the fact of its being in possession of the officer of the state court, under the attachment issued in the present suit to enforce the mechanic's lien. But by the removal of this suit into the Circuit Court of the United States all danger of conflict between the federal process and state process was avoided; and the circuit court, having all the parties and all the processes before it, rightly held that the levies of the executions upon the judgments at law continued in force, and gave the judgment creditor a priority over the grantee of the judgment debtor. IN ERROR to the Circuit Court of the United States for the Eastern District of Virginia. The history and facts of the case appear in the opinion of the court. Mr. S. F. Phillips, Solicitor-Gen., for plaintiff in error. Mr. W. P. Burwell, for defendant in error. Mr. Justice Matthews delivered the opinion of the court: This action was brought by Hicks, the defendant in error, on August 15, 1879, to recover $3,292.95 for taxes alleged to have been illegally exacted by the intestate as Collector of Internal Revenue on October 31, 1865. The only question now made is that the suit was not brought within the time allowed by law. The plaintiff in his declaration alleged that he appealed to the Commissioner of Internal Revenue to refund the tax illegally collected, and that his appeal was rejected by the Commissioner on January 22, 1879. To this declaration the defendant pleaded that the appeal to the Commissioner to refund the money exacted was filed in his office on February 8, 1866, and was rejected on May 7, 1866. To this the plaintiff replied that the appeal referred to in the plea was not duly made, and that it was not rejected on its merits, but because it had not been made and certified on proper forms as required by the treasury regulations; and that afterwards, on January 8, 1868, he made an appeal in due form, which was entertained by the Commissioner, and finally decided and rejected on January 22, 1879. The finding of fact on this issue by the court is as follows: "The issues in fact being tried and deter- Decree affirmed. JANE F.JAMES, Admrx. of WILLIAM JAMES, V. SAMUEL D. HICKS. (See S. C., Reporter's ed., 272-275.) Suit to recover tax, when brought-Revised Stat 1. A suit to recover a tax as illegally assessed or Commissioner of Internal Revenue at Washington, the same having been pending before the Commissioner from the time the appeal was perof law and the regulations of the Secretary of fected on form 46, according to the provisions the Treasury made in pursuance thereof. It is further found that the delay in the consideration of the appeal by the Commissioner after its perfection on form 46 and the signature of the proper officers required by law was occasioned by the loss of the original papers filed with the department by the plaintiff or his attorney, and required by law to be kept there." Judgment was rendered in favor of the plaintiff below, to reverse which is the object of the present proceeding. It is alleged as error, in the first place, that [273] |