[45] law if, while it imposed this obligation upon her, it gave her no authority to employ counsel to prosecute the claim before the only legal tribunal which could allow it; and if she could employ counsel, it follows as a matter of course, she could make a contract for the amount of their compensation. This agreement would bind her as tutrix as well as in her individual right, and it is in both characters she professes to contract. Such undoubtedly is the law of Louisiana, which must govern as to her powers as tutrix, since it is there she was appointed and there both she and her children resided when she made the agreement with Taylor and Wood. Of her authority to make such a contract as tutrix we have no doubt. Another objection raised is, that, since by the Act of Congress making the appropriation to pay the money, it it expressly made payable to Mrs. Bemiss and her children by name, her authority as tutrix under the Louisiana appointment did not authorize payment to her in the District of Columbia. on that subject, taken as experts, does not justify such a conclusion. In the case before us, it is beyond dispute that the attorneys of Mrs. Bemiss exercised no influence over her whatever in adjusting the amount of the fee stipulated in the agreement. They had never known her until this employment, and it was through no suggestion of theirs or any agent of theirs that she applied to them. Her first letter to them on the subject made the offer of fifty per cent, and no more was asked for by them. The evidence of two of the Judges who composed the court shows that the case was a difficult and complicated one, and that both Taylor and Wood attended to it vigorously and gave it much time and attention, and that it was in court a considerable time. It seems probable that Mrs. Bemiss was an impatient and not very wise woman, but there is no evidence of such weakness of mind as to incapacitate her from making a contract, and there is absolutely no evidence of any advantage taken of her at any stage of the proceeding. On the contrary, the payment, by these principal attorneys, of two fifths of the fee they had contracted for to other attorneys employed by her without consulting them, for which she was bound while they were not, shows anything but harsh or oppressive conduct, and would go far to mitigate any objection to enforcing the contract founded on the idea of excessive compen The subject of such payments by the United States to administrators appointed in the States is very fully discussed in the case of Wyman v. U. S. [109 U. S., 654, XXVII., 1068], decided simultaneously with the present case and, upon the principles there laid down, we are of opinion that payment to Mrs. Bemiss as tutrix under the Louisiana appointment is a valid pay-sation. ment, and that she is responsible under that appointment, and the receipt of the money by herself and by her authorized attorney, to these minors if they have been wronged. And this is a matter of accounting with them in her fiduciary character of tutrix. We are of opinion that, on the appeal of Taylor and Wood, the decreee of the court below must be reversed; and as the minor children, plaintiffs below, assign no error, because they had no decree against their mother, a decree must be rendered in that court dismissing the bill. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. 8. Ex Parte: In the Matter of FRANCIS SCHREIBER (See S. C., Reporter's ed., 76-80.) It remains to be considered whether there is in this contract of employment anything which, after it has been fully executed on both sides, should require it to be declared void in a court of equity, and the money received under it returned. It was decided in the case of Stanton v. Embry, 93 U. S., 548 [XXIII., 983], that contracts by attorneys for compensation in prosecuting claims against the United States were not void because the amount of it was made contingent upon success, or upon the sum recovered. And the well known difficulties and de- Action for infringement of copyright-when it tays in obtaining payment of just claims which are not within the ordinary course of procedure of the auditing officers of the government, justifies a liberal compensation in successful cases, where none is to be received in case of failure. Any other rule would work much hardship in cases of creditors of small means residing far from the seat of government, who can give neither money nor personal attention to securing their rights. This, however, does not remove the suspicion which naturally attaches to such contracts, and where it can be shown that they are obtained from the suitor by any undue influence of the attorney over the client, or by any fraud or imposition, or that the compensation is clearly ex[46] cessive, so as to amount to extortion, the court will in a proper case protect the party aggrieved. While fifty per cent seems to be more than a fair proportion in the division between client and attorney in an ordinary case, we are not prepared to assume that it is extortionate for that reason alone, and the testimony of the lawyers 110 U. S. U. S., Book 28. survives-death of defendant. under the provisions of section 4965 of the Revised 3. State statutes allowing suits on state penal stat- the PPLICATION for a writ of mandamus. The history and facts of the case appear in opinion of the court. Messrs. John J. Wilkinson, A. Sidney NOTE.-Death of parties, effect on suit. See note to Green v. Watkins, 19 U. S. (6 Wheat.), 260. 5 65 Biddle, Henry P. Brown, John K. Valentine and The question raised in this case is whether or not an action to recover a penalty imposed by Congress for the infringement of a copyright, survives after the death of the defendant. By the statute law of Pennsylvania, an action for a penalty does not abate by the death of the defendant. Act, Feb. 24, 1834, sec. 28, Purd. Dig., 424, pl. 96, pl. 77. The only question for consideration is whether or not the state law applies. If the abatement or survival of the action is a matter of procedure and practice, it is clear that by section 914 of the Revised Statutes, being the Act of June 1, 1872, sec. 5, the state law governing such questions is the rule of decision of the Federal Courts. That the question is one of procedure was decided by Judge M'Lean, in Jones v. Vanzandt, 4 M'Lean, 604; see, also, McCoul v. Lekamp, 2 Wheat., 111. The petitioners sued Charles L. Sharpless in the District Court of the United States for the Eastern District of Pennsylvania, to recover certain penalties and forfeitures claimed under the provisions of section 4965 of the Revised Statutes, for the infringement of a copyright. Sharpless died after issue joined, but before judgment. After his death had been suggested by his attorney in the cause, the petitioners sued out a scire facias against Anna R. Sharpless, executrix, and Charles W. Sharpless, executor of his will, requiring them to appear and become parties to the action, or show cause why they should not be made parties, by order of the court. Before this writ was served, the attorney for Sharpless during his life, moved that the writ be quashed. After argument, the motion was granted, on the ground that the cause of action terminated with the death of the defendant and did not survive as against his legal representatives. The petitioners now ask for a rule on the disBy the very terms of section 955, of the Re-trict court to show cause why a writ of manvised Statutes, Judiciary Act of 1789, sec. 31, damus should not issue requiring it to re-instate this action survived. the writ of scire facias and proceed with the case. See, also, Hatfield v. Bushnell,1 Blatchf., 393; Barker v. Ladd, 3 Sawy., 44; Trigg v. Conway, Without considering whether a writ of manHemp., 711; U. S. v. Boutwell, 17 Wall., 604 damus may issue directly from this court to a (84 U. S., XXI., 721); Hodge v. R. R. Co., 1 Dill., district court to enforce procedure in a case 104. where the final judgment of the district court Even should it be held that the question un-is subject to review in the circuit court, we deder consideration is not one of procedure at all, but goes to the root of the action, then section 34 of the Judiciary Act of 1789 (R. S., sec. 721), applies, and the action survived against the executors of the defendant. ny the rule asked for, because we are entirely satisfied with the action of the District Judge. He was asked to send out a writ of scire facias to bring in and make parties to a qui tam action the personal representatives of a deceased deSee, U. S. v. Mundell, 1 Hughes, 415; McClu- fendant, who had been sued to recover the penny v. Silliman, 3 Pet., 270; Leffingwell v. War-alties and forfeitures which it was alleged he ren, 2 Black., 599 (67 U. S., XVII., 261); Parker had subjected himself to, under an Act of Conv. Hawk,2 Fish., 58; Rich v. Ricketts, 7 Blatchf., gress, by the infringement of a copyright. The 230; Howes v. Nute, 4 Fish., 263; Sayles v. R. R. suit was not for the damages the plaintiffs had [80] Co., 6 Sawy., 32; Hayden v. Oriental Mills, 15 sustained by the infringement, but for penalties Fed. Rep., 605. and forfeitures recoverable under the Act of ConTo summarize the argument: if the question gress for a violation of the copyright law. The is one of procedure, section 914 of the Revised personal representatives of a deceased party to a Statutes imports the state law for its decision, suit cannot prosecute or defend the suit after his and the language of the Federal Act regulating death, unless the cause of action, on account of the survival of actions (sec. 955, R. S.) also ren- which the suit was brought, is one that survives ders the state law applicable; if not procedure, by law. R. S., sec. 955. At common law, actions the state law is the rule of decision under sec-on penal statutes do not survive. Com. Dig., tit. tion 721 of the Revised Statutes. Mandamus lies from this court directly to the district court. Ex parte Bradstreet, 7 Pet., 634; S. C., 8 Pet., 588; Stafford v. Bank, 17 How., 275 (58 U. S., XV., 101); R. S., sec. 688. The plaintiffs have no remedy by writ of error. R. S., 1011; Toland v. Sprague, 12 Pet., 331. Moreover, mandamus will always lie if an inferior court has erroneously decided some preliminary objection of law, and refuse to go into the merits of the case. Administration, B. 15, and there is no Act of Congress which establishes any other rule in respect to actions on the penal statutes of the United States. The right to proceed against the representatives of a deceased person depends not on forms and modes of proceeding in a suit, but on the nature of the cause of action for which the suit is brought. If the cause of action survives, the practice, pleadings and forms and modes of proceeding in the courts of the State may be resorted to in the courts of the United States for the purpose of keeping the suit alive and bringing in the proper parties. R. S., sec. 914. But if the cause of action dies with the person, the suit abates and cannot be revived. Whether an action survives, depends on the substance of the cause of action, not on the forms of proceeding to enforce it. As the nature of penalties and forfeitures imposed by Acts of Congress cannot be changed by state laws, it follows that state statutes allowing suits Mr. Chief Justice Waite delivered the opin-on state penal statutes to be prosecuted after the ion of the court: death of the offender, can have no effect on suits High, extra Legal Rem., sec. 151; Reg. v. Justices of Kesteven, 3 Ad. & El. (N. S.), 818. Ex parte Schollenberger, 96 U. S., 369 (XXIV., 853); Ex parte Bradstreet, 7 Pet., 634; Ins. Co. v. Wilson, 8 Pet.,291; Ex parte Russell, 13 Wall., 664 (80 U. S., XX., 632); Ins. Co. v. Comstock, 16 Wall., 258 (83 U. S., XXI., 493); R. R. Co. v. Wiswall, 23 Wall., 56 (90 U. S., XXII., 103). There was no opposing counsel. [51] [52] in the courts of the United States for the re- | taken at the trial. It may be reduced to form covery of penalties imposed by an Act of Congress. The rule is denied and petition dismissed. DANIEL M. CAREY. (See S. C., Reporter's ed., 51, 52.) Exception, when taken-when taken too late. 1. An exception to be of any avall must be taken at the trial. It may be reduced to form and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record, by a bill of exceptions duly allowed, or otherwise. 2. Where the language of the bill of exceptions implies that the exceptions were taken only at the time of tendering the bill of exceptions to be signed, which was long after the trial, at a subsequent Term, the errors assigned cannot be considered. [Nos. 157, 158.] Submitted Dec. 12, 1883. Decided Jan. 7, 1884. and signed afterwards, but the fact that it was seasonably taken must appear affirmatively in the record by a bill of exceptions duly allowed U. S. v. Breitling, 20 How., 254 [61 U. S., XV., or otherwise. Phelps v. Mayer, 15 How., 160; 902]; French v. Edwards, 13 Wall., 516 [80 U. S., XX., 705]; Stanton v. Embry, 93 U. Š., 555 [XXIII., 984]; Hunnicutt v. Peyton, 102 U. S., 354 [XXVI., 116]. This clearly is not such a case. There is nothing whatever to indicate that any exception was taken to the rejection of the evidence complained of until the next Term after the trial was over and the judgment rendered, though not signed. Even the liberal extension of the rule granted in Simpson v. Dall, 3 Wall, 460 [70 U. S., XVIII., 265], is not enough to reach this defect. The language here implies an exception only at the time of tendering the bill of exceptions to be signed, which was not only long after the trial, but at a subsequent Term of the court. It follows that the errors assigned are not such as we can consider, and the judgments are, consequently, affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. ISAAC N. JENNESS, Piff. in Err., v. IN ERROR to the Circuit Court of the United CITIZENS' NATIONAL BANK OF ROME States for the District of Louisiana. The actions were brought in the court below, by the plaintiff in error, on distiller's bonds, to recover certain assessments and penalties alleged to be due from the principal obligor, Carey. The trials resulted in verdicts and judgments in favor of the defendants. Whereupon, the plaintiff sued out these writs of error. Mr. Wm. A. Maury, Asst. Atty-Gen., for plaintiff in error. Messrs. J. D. Rouse, Wm. Grant and G. Hine, for defendants in error. L. Mr. Chief Justice Waite delivered the opinion of the court: The judgment in each of these cases was rendered after a trial by jury on the 17th of March, 1880, during the November Term, 1879, although it was not signed until May 20, 1880. On the 19th of May, 1880, which was at the April Term of that year, the District Judge who presided at the trial signed a bill of exceptions, which sets forth that on the trial the United States offered in evidence a document which was annexed and purported to be a copy of an assessment made by the Commissioner of Internal Revenue for May, 1875, to the introduction of which the defendants objected, and that the objection was sustained. The bill of exceptions then proceeds as follows: "To which ruling of the court plaintiff excepts, and tenders this, his bill of exceptions, which is accordingly signed this 19th day of May, 1880." The rule is well established and of long standing that an exception to be of any avail must be (See 8. C., Reporter's ed., 52, 53.) Jurisdictional amount. $5,000, but a part of that amount was not disputed Argued Dec. 20, 1883. Decided Jan. 7, 1884. States for the Eastern District of Michigan. error. Mr. Chief Justice Waite delivered the opinion of the court: The judgment in this case is for $7,275.16, but it appears affirmatively on the face of the record, that of this amount $2,669.03 was not disputed below. The defense related alone to the difference between these two amounts, which is less than $5,000. The dispute here is only in reference to the amount contested below. Such being the case, we have no jurisdiction. The cases of Gray v. Blanchard,97U.S.,564 [XXIV., 1108]; Tintsman v. Nat. Bk., 100 U.S., 6[XXV., 530], and Hilton v. Dickinson, 108 U. S., XXVII., 688], are conclusive to this effect. Dismissed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. Cited-110 U. S., 305. NOTE.-Jurisdiction of U. S. Supreme Court depends on amount; interest cannot be added to give shown; what cases reviewable without regard to sum Jurisdiction; how value of thing demanded may be in controversy. See note to Gordon v. Ogden, 28 U. 8. (3 Pet.), 33. [53] JOHN E. HOFF, Piff. in Err., v. COUNTY OF JASPER, STATE OF MIS SOURI. (See S. C., Reporter's ed., 53-56.) Law impairing contract-town bonds, retroactive law as to act of executive officer-case followed. 1. Where, by a contract of subscription, a township agreed to take stock of a railroad company and pay for it in valid negotiable bonds and, when the subscription was made, a bond signed by the presiding justice of the county court alone would have been sufficient, the contract of subscription is not impaired by a law passed afterwards that required the signature of the clerk of the court to the bond, in addition to that of the presiding justice. 2. An Act requiring town bonds to be registered and certified, passed after the contract of subscription was made and before the bonds were issued, does not change or impair the contract, and is not a retrospective law. 3. Every executive officer, when called on to act in his official capacity, must inquire and determine whether, on the facts, the law requires him to do the act required. The due execution of bonds is an 4. Anthony v. County of Jasper, XXV., followed. [No. 182.] Argued Dec. 20, 1883. executive act. Ν Decided Jan. 7, 1884. IN ERROR to the Circuit Court of the United States for the Western District of Missouri. This action was brought in the court below, by the plaintiff in error, to recover the amount of 1,240 interest coupons, amounting to $31,000, which had been detached from certain bonds is sued by Jasper County for Marion Township, in aid of the Memphis, Carthage & Northwestern Railroad Company. the obligation of the contract of subscription, and is, therefore, so far as such application is concerned, in contravention of article I., section 10, clause 1, of the Constitution of the United States; and, 2. That it was retrospective in its operation and, therefore, in contravention of article I.,section 28, of the Constitution of Missouri, which is "That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed." It is also insisted that the 4th section of the Act is in contravention of the Constitution of Missouri, because it delegates the exercise of judicial power to an executive officer of the State. The first two objections may be considered together, and to our minds they are disposed of by the paragraph in the opinion in Anthony v. Jasper Co., which is as follows, p. 699 [1009]: 'It matters not that, when the bonds were fore they were issued it had gone into effect. It voted, the registration law was not in force. Bedid not change in any way the contract with the railroad company. The company was just as much entitled to its bonds when it complied with the conditions under which they were voted after the law, as it could have been before. All the Legislature attempted to do was to provide what should be a good bond when issued. There was nothing changed but the form of the exe- [55] cution." That is clearly the true construction of the 4th section of the Act. The contract of subscription undoubtedly gave the company the right to valid negotiable bonds executed in due form of law. This section simply provides that before any bond thereafter issued shall be deemed to have been completely executed, it must have upon it the requisite certificate of the Auditor of State. When so certified, if otherwise in proper form, it may be issued as a duly executed negotiable public security. The provision that the certificate of the auditor shall be prima facie evidence Messrs. James S. Botsford, Joseph Ship-only of the facts therein stated, does not of itself pen and Marcus T. C. Williams, for plaintiff in The court below found for the defendant, a jury having been waived, and gave judgment accordingly. Whereupon, the plaintiff sued out this writ of error. The facts of the case are sufficiently stated by the court. error. Mr. E. J. Montague, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: open the bonds to attack in the hands of a bona The facts in this case are in all respects the same as those in Anthony v. Jasper Co., 101 U. S., 693 [XXV., 1005], except that here it is expressly found that the subscription of the township which was voted had actually been made by the county court and accepted by the railroad company before the Act providing for the registration of bonds was approved, while there the acceptance of the subscription before the ap-amined, and certified officially that all the conproval of the Act did not appear unless by implication. The vote of the township was taken on the 5th of March, 1872; the order of the county court for the subscription entered on the 28th of March, and on the same day the subscription was actually made and accepted. The Registration Act was approved March 30th. Upon the additional facts, found in this case it is insisted: 1. That if the Registration Act was applicable to the bonds now in question, it impaired NOTE.-Municipal bonds, reference to statute in. See note to Ogden v. County of Daviess, 102 U. S., XXVI., 263. ditions of the law have been complied with, Neither, in our opinion, does the fact that one [56] 8. It is not sufficient to give this court jurisdiction that a federal question is suggested in the state is no part of the record on which the judgment rests. court on a petition for rehearing. Such a petition [No. 874.] Submitted Dec. 10, 1883. Decided Jan. 7, 1884. IN ERROR to the Supreme Court of Pennsyl fore the body politic shall be bound by an in- | apparently was about the right of a Boom Comstrument to be put on the market and sold as pany, under its charter to construct a boom in a commercial paper. We cannot believe, if, when river, this raises no federal question. 2. Judgments of the courts of the States cannot the subscription was made, a bond, if signed by be reviewed in this court on a federal question, unthe presiding justice of the county court alone, either knew or ought to have known that such a less it appears unmistakably, that the state court would have been sufficient, it would be con- question was involved in the decision to be made. tended that the obligation of the contract of subscription was impaired by a law passed afterwards that required the signature of the clerk of the court to the bond as well as that of the presiding justice. In the view we take of the case, the requirement of the signature and certificate of the Auditor of State is nothing more in legal effect than that. By the contract of subscription the township agreed to take stock and pay for it in valid negotiable bonds, and the company agreed to take the bonds and give the stock. All the new law has done is to provide what shall be a valid negotiable bond of the township, and this by providing additional guaranties against fraudulent and irregular issues. Of such a provision honest parties cannot complain, for it is always to be presumed that a public officer will do whenever called on what the law requires of him. As to the objection that the duties of the auditor, in respect to his inquiries under the 4th section, are judicial rather than executive, it is sufficient to say that every executive officer, when called on to act in his official capacity, must enquire and determine whether, on the facts, the law requires him to do one thing or another. The due execution of these bonds was an executive act, and the Auditor of State was made by law one of the executive officers whose duty it was to take part in their execution. The inquiries he is required to make do not differ in their character from those the presiding justice of the county court should have made when he affixed his signature. The certificate of the auditor being according to the statute prima facie evidence only of the facts stated, amounts to nothing more than that in his opinion the circumstances are such that the bonds may properly go out as commercial paper of the kind they appear on their face to be. It binds no one. It simply states the opinion of this executive officer on the questions he was called on to consider in his official capacity. It makes the bond complete in the form of its execution and in law does nothing more. We are of opinion that this case is in no respect distinguishable from Anthony v. Jasper Co., and upon that authority the judgment is affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. WEST BRANCH BOOM COMPANY. (See S. C., Reporter's ed., 57-59.) IN ERR The history and facts of the case sufficiently appear in the opinion of the court. On motion to dismiss because no federal question is involved. Messrs. Seymour D. Ball and William A. McKenney, for defendant in error, in support of motion. Messrs. William A. Wallace and Joseph Mr. Chief Justice Waite delivered the opin- The Susquehanna Boom Company was incorporated by the General Assembly of Pennsylvania on the 26th of March, 1846, and as early as 1849 erected, under its charter, a boom in the West Branch of the Susquehanna River, at Williamsport, for the purpose of securing logs and other lumber floating in the river. Its charter did not purport to confer upon it any exclusive rights to the use of the river above the boom for bringing logs down. On the 26th of March, 1849, the West Branch Boom Company was incorporated to construct and maintain a boom on the south side of the West Branch at Lock Haven, about twenty-five miles above Williamsport. Under its charter this Company was not allowed to extend its boom more than half way across the river, but it could erect such piers, side branches or sheer booms as might be necessary. With this au- [58] thority a sheer boom was constructed in the north half of the stream. This suit was begun in a state court of Pennsylvania to enjoin the West Branch Company from maintaining such a sheer boom, on the ground that under its charter no such structure could be placed by it on the north side of the branch. The Supreme Court of the State, on appeal, decided that it could put in and maintain such a sheer boom, and adjudged accordingly. To reverse that judgment, this writ of error was brought. The West Branch Company now moves to dismiss the writ because no federal question is involved. It is clear to our minds that we have no jurisdiction. The Constitution protects state corporations in such contracts with the State as their charters imply. The Susquehanna Company, whose rights are involved, was given full authority to erect and maintain its boom at Federal question, what is-state judgments, when Williamsport. That, undoubtedly, implied the reviewed-what constitutes the record. 1. Where the only controversy in the state court NOTE.-Jurisdiction of U. S. Supreme Court where federal question arises, or where is drawn in question statute, treaty or Constitution of U. S. See, note to Matthews v. Zane, 8 U.S. (4 Cranch), 382; note to Martin v. Hunter, 14 U. S. (1 Wheat.), 304; and note to Williams v. Norris, 25 U. S. (12 Wheat.), 117. right to use the river as others used it for bring- |