Palmer v. McMahon, 133 U.S. 660 (1890)

The record showed that on the 17th day of April, 1882, Martin T. McMahon, the receiver of taxes of the city of New York, filed a petition against Francis A. Palmer in the Court of Common Pleas, stating that in the year 1881 Mr. Palmer was a resident of the twenty-first ward in the city of New York and a stockholder in the National Broadway Bank, located in the third ward of said city; that the shares of stock in said bank owned by Mr. Palmer were duly assessed for the year 1881 at the valuation of $247,635, which valuation was entered by the tax commissioners in “ The Annual Record of the Assessed Valuation of Real and Personal Estate for the year 1881, which record was open for examination and correction from the second Monday of January until the first day of May, 1881, and the fact that the books were so open was duly advertised; that before April 30, 1881, Palmer applied for a reduction of the valuation, and it was reduced by p. 663the commissioners to the sum of $190,635; that on May 1, 1881, the assessment rolls were prepared from the books, upon which his name was entered, with an assessment against him for his shares at the valuation last mentioned, wThich rolls were duly certified to the board of aidermen of the city of New York, and immediately afterwards the tax commissioners gave public notice that the tax rolls had been completed and delivered to the board, and would be open to public inspection for the period of fifteen days from the date of the notice, which notice was duly published in several newspapers in the city of New York for fifteen days consecutively, commencing July 5, 1881; that thereafter the tax upon such valuation of Palmer’s shares of stock was estimated and set down upon said roll at the sum of $4994.63, and on October 13, 1881, was duly confirmed by the board of aidermen, and corrected assessment rolls showing the amount of said tax were delivered to McMahon, as receiver of taxes, with a warrant for the collection thereof; that notice was duly published in twelve New York newspapers that said assessment rolls had been delivered and that the taxes were due and payable thereon ; that thereafter notice was again published in twelve newspapers that unless the taxes were paid the receiver would proceed to collect them according to law; and a fourth notice was likewise published requiring payment; that Palmer had neglected to pay the sum of $3684.63 of the tax assessed against him; that subsequently to the 15th of January, 1882, a warrant was issued by the receiver to a marshal of the city for the collection of said tax, which was returned unsatisfied, except as to the sum of $1310, after demand of payment from Palmer, which was refused as to $3684.63; that there were no goods or chattels in Palmer’s possession upon which said tax might be levied by distress and sale; that one year had not elapsed since said refusal or the return of the warrant; and that the receiver had reason to believe that Palmer had debts, credits, choses in action, or other personal property, not taxed elsewhere in the State of New York, upon which levy could not be made according to law; and he applied for the enforcement of payment of the tax pursuant to the statute.

We have decided that so much of the capital of national and state banks as is invested in United States securities cannot be subjected to state taxation, People v. Commissioners of Taxes for New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; but that shares of bank stock may be taxed in the hands p. 667of their individual owners at their actual instead of their par value, People^. Commissioners of Taxes <&c., 94 IT. S. 415; Hepburn v. School Directors, 23 Wall. 480; without regard to the fact that part or the whole of the capital of the corporation might be so invested; Van Allen v. Assessors, 3 Wall. 573; Bradley v. People, 4 Wall. 459; People v. Commissioners, 4 Wall. 244; and that under acts permitting the deduction of debts from the value of all a person’s taxable property, such deduction must be permitted from the value of such shares, People v. Weaver, 100 IT. S. 539, 546; but that a statute is not void because it does not provide for a deduction, nor is the assessment void if deductions are not made, but voidable only. Supervisors v. Stanley, 105 IT. S. 305. We have also held that individual instances of omission or undervaluation cannot be relied on to invalidate an assessment, Supervisors v. Stanley, supra', and that because a state statute does not provide for the taxation of shares in corporations other than banks, it does not follow that the tax on moneyed capital invested in bank shares is at a greater rate than that of the moneyed capital of individual citizens invested in other corporations, nor are the shareholders in national banks discriminated against, because the taxation of such other .corporations is arrived at under a separate system. Mercantile Bank v. New York, 121 IT. S. 138. In this last case the assessment was made in pursuance of section 312 of an act of the legislature of the State of New York, passed July 1, 1882, entitled “ An act to revise the statutes of this State relating to banks, banking and trust companies,” which section is identical with section 3 of the act of 1880, except that trust companies are omitted in the act of 1882, and a provision in relation to notice is added at the end of the section. The court held as follows: “The main purpose of Congress in fixing limits to state taxation on investments in shares of national banks was, to render it impossible for the State, in levying such a tax to create and foster an unequal and unfriendly competition, by favoring institutions or individuals carrying on a similar business, and operations and investments of like character. The term i moneyed capital,’ as used in Rev. Stat. § 5219, respecting state taxation of p. 668shares in national banks, embraces capital employed in national banks, and capital employed by individuals when the object of their business is the making of profit by the use of their moneyed capital as money — as in banking as that business is defined in the opinion of the court; but it does not include moneyed capital in the hands of a corporation, even if its business be such as to make its shares moneyed capital when in the hands of individuals, or if it invests its capital in securities payable in 'money. The mode of taxation adopted by the State of New York in reference to its corporations, excluding trust companies and savings banks, does not operate in such a way as to make the tax assessed upon shares of national banks at a greater rate than that imposed upon other moneyed capital in the hands of individual citizens.” The conclusions there announced and the reasoning by which they are supported, are decisive in the disposition of the errors assigned on behalf of the plaintiff in error, on the first branch of this case. The assessment was not void because in contravention of the Constitution or laws of the United States.

But it is argued that chapter 230 of the laws of New York of 1843 is unconstitutional, as depriving the plaintiff in error of liberty and property without due process of law, and of the equal protection of the laws, in violation of the Fourteenth Amendment to the Constitution of the United States. That amendment provides, that no State “ shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” It is insisted that Palmer had no notice and no opportunity to be heard or to confront or cross-examine the witnesses for the taxing authorities or to subpoena witnesses in his own behalf; and had not otherwise the protection afforded in a judicial trial upon the merits. The phrase “due process of law ” does not necessarily mean a judicial proceeding. “ The nation from whom we inherit the phrase * due process of law,’ ” said this court, speaking by Mr. Justice Miller, “ has never relied upon the courts of justice for the p. 669collection of her taxes, though she passed through a successful revolution in resistance to unlawful taxation.” McMillen v. Anderson, 95 U. S. 37, 41.

Collection by distress and seizure of person is of very ancient date, Murray's Lessee v. Hoboken Land Co., 18 How. 272; and counsel for defendant in error cites many English statutes, commencing with the twelfth year of Henry VII, c- 13, which in their essential features resemble the New York law upon the subject, one in 6 Henry VIII, c. 26, being strikingly like it. 2 Statutes of the Realm, 644; 3 lb. 156, 230, 516, 812; 4 lb. 176, 334, 385, 744, 991, 1108, 1247; 5 p. 670Ib. 9, 700; 7 lb. 567. Under the act of 1843 commitment is not resorted to until other means of collection have failed and then only upon a showing of property possessed, not accessible to levy, but enabling th^ owner to pay if he chooses, this constituting such misconduct as justifies the order. That law had been in existence for more than forty years at the time of this proceeding. We do not regard the collection in this way, founded on necessity and so long recognized by the State of New York as to be justifiably resorted to under the circumstances detailed in the act, and operating alike on all persons and property similarly situated, as within the inhibitions of the Fourteenth Amendment.

As respects fraud in law, as distinguished from fraud in fact, in a convey ance, if that which is invalid can be separated from that which is va i p. 671without defeating the general intent, the maxim “ void in part, void in toto ” does not necessarily apply, but the instrument may be sustained notwithstanding the invalidity of a particular provision.

“ The material facts are these: The Exchange National Ban < p. 673was organized May 13, 1865, with a capital of $100,000, which was increased November 13, 1866, to $150,000. Its place of business was Norfolk, Va.

and guaranteed that the same should yield the amount for which they were taken whenever put on the market and sold. This guaranty was secured by a transfer of the interest of the firm in the Richmond Cedar Works, and also in $80,000 of Southern telegraph bonds held as collateral security. This being done, and the firm also agreeing not to assign their other property for the benefit of creditors with preferences against the bank, notes of the firm and other indebtedness to the amount agreed on as the value of the stocks and bonds were surrendered and the unsecured debts thereby nominally reduced. While some of the .stocks and bonds thus transferred had been before that time in the possession of the bank, or some of its officers, the evidence does not establish the fact that they had been in any way pledged, or that they could be legally held by the bank as security. They were all, so far as appears, the property of the firm, free of any specific claim of p. 676the bank. The value of the stocks and bonds thus transferred falls between two and three hundred thousand dollars short of the amount for which they were taken, and the Richmond Cedar Works stock and Southern telegraph bonds, held as collateral to the guaranty against this deficiency, are of but little value.

“After the death of Thomas A. Bain the business of the firm was conducted in all respects as it had been before. The indebtedness of the firm to depositors and otherwise at the time of the failure has not been accurately determined, but p. 677claims of depositors have already been proved against the trust to more than $750,000, and it is not unlikely that the entire indebtedness, other than that to the bank, may approach a million of dollars.

“The property in the second class, however, occupies a different position. There the purchases were made with moneys that cannot be identified as belonging to the bank. The payments were all, so far as now appears, from the general fund then in the possession and under the control of the firm. Some of the money of the bank may have gone into this fund, but it was not distinguishable from the rest. The mixture of the money of the bank with the money of the firm did not make the bank the owner of the whole. All the bank could in any event claim would be the right to draw out of the general mass of money, so long as it remained money, an p. 679amount equal to that which had been wrongfully taken from its own possession and put there. Purchases made and paid for out of the general mass cannot be claimed by the bank, unless it is shown that its own moneys then in the fund were appropriated for that purpose. Nothing of the kind has been attempted here, and it has not even been shown that when the property in this class was purchased, the firm had in its possession any of ’the moneys of the bank that could be reclaimed in specie. To give a cestui que trust the benefit of purchases by his trustees, it must be satisfactorily shown that they were actually made with the trust funds.

“ 2. As to the assignment. By a statute of Virginia, a creditor may file a bill to set aside a conveyance by his debtor on the ground of fraud without having first obtained a judgment. This suit was, therefore, properly brought. We find p. 680no evidence whatever, of any actual fraudulent intent on the part of the firm, or either of the partners, to hinder and delay their creditors. They devoted all their property, partnership and individual, of every kind to the payment of their debts. Nothing whatever was kept back. It is true some creditors were preferred over others, but this is allowable in Virginia. From the case of Skipwith'’s Executor v. Cunnirigkam, 8 Leigh, 271, decided in 1837, until now, such has been the recognized law of the State, and this was conceded in the argument.

“ As to the first of these objections it. is sufficient to say that as early as 1837 the Supreme Court of Appeals of Virginia decided, in the case of ELcCullougk v. Sommervillc, 8 Leigh, 418, that a provision like that contained in this deed did not vitiate the assignment, but that a court of equity would, if required, so control the administration of the trus p. 681as to apply the partnership property to the payment of the partnership debts in preference to those of the individual partners, and the individual property to individual debts. This ruling was followed in Gordon v. Cannon, 18 Gratt. 387, decided in 1868, and its authority was recognized by all the judges, though there was some difference of opinion as to its applicability to-the particular facts of the latter case. We see no reason to depart from what seems now to be the recognized rule of decision in the State, and we have no hesitation in saying that if there ever can be a case where such an assignment ought to be sustained it should be in this.

“ This brings us to the consideration of the bidding clause of which complaint is made, and as to this it may be said there is no provision which can in any manner result to the advantage of the assignors in opposition to the creditors, for, until the creditors are all paid in full, the assignors can get nothing. If payment is made, it matters not to the creditors p. 682how it is done. In no event can any but the first and second-class creditors be affected injuriously, and they are not here complaining. Although the bank is named as a creditor in each of the classes, the object of the present suit is, not to control the administration of this branch of the trust, but to set aside the assignment altogether.

Virginia, 694; Foster n . Goddard, 1 Black, 506; McCullough v. Sommerville', 8 Leigh, 415; Gordon v. Cannon, 18 Grattan, 387; Cochran v. Paris, 11 Grattan, 348; Kevan v. Branch, 1 Grattan, 274; Brockenbrough v. Brockenbrough, 31 Grattan, 580; Young v. Willis, 82 Virginia, 291; Darling v. Rogers, 22 Wend. 483; Salmon n . Stuyvesant, 16 Wend. 321; Curtis v. Leavitt, 15 N. Y. 9; Parks n . Parks, 9 Paige, 107; Pigot's Case, 11 Rep. 27; Patterson v. Jenks, 2 Pet. 215; Mackie v. Cairns, 5 Cowen, 547; & C. 15 Am. Dec. 477; Harrison v. Harrison, 36 N. Y. 543 ; Post v. Hover, p. 68530 Barb. 312; 33 N. Y. 593; Gott v. Cook, 7 Paige, 521; De Peyster v. Glendining, 8 Paige, 295 ; Van Vechten v. Van Vechten, 8 Paige, 103; Gilman v. Redington, 24 N. Y. 9; Everitt v. Everitt, 29 N. Y. 39; Kane v. Gott, 24 Wend. 641; & G. 35 Am. Dec. 641; Williams v. Williams, 4 Selden (8 N. Y.) 524; Van Schuyver v. Mulford, 59 N. Y. 426; Manice v. Manice, 43 N. Y. 303 ; Denny v. Bennett, 128 IT. S. 489; United States v. Bradley, 10 Pet. 343; Gregory v. Gates, 30 Grattan, 83; Dixon v. Me Gue, 14 Grattan, 540 ; Wilson v. Townshend, 2 Ves. Jr. 693; Watson v. Watson, 128 Mass. 152; Chapin v. Thompson, 89 N. Y. 270; Smith v. Smith, 14 Gray, 532; Brown v. Brown, 108 Mass. 386; Hapgood v. Houghton, 22 Pick. 480, 483; Doe v. Cavendish, 3 Doug. 48, 55; S. C. 4 T. R. 741, 743, note; Birmingham v. Kirwam, 2 Sch. & Lef. 444, 450.

In Virginia the statute reads as follows: “ Every gift, conveyance, assignment, or transfer of, or charge upon any estate, real or personal, every suit commenced, or decree, judgment, or execution suffered or obtained, and every bond or other writing given with intent to delay, hinder, or defraud creditors, purchasers, or other persons of or from what they are or may be lawfully entitled to, shall, as to such creditors, purchasers, or other persons, their representatives or assigns, be void. This section shall not affect the title of a purchaser for valuable consideration, unless it appear that he had notice of p. 686the fraudulent intent of his immediate' grantor or of the fraud rendering void the title of such grantor.” Virginia Code, 1873, 896, c. 114, § 1.

When, then, it is claimed in this case that the deed is fraudulent in law, “because it appropriates partnership assets to pay individual debts in preference to the debts of the partnership,” we should naturally expect to find that the Supreme Court of Appeals had held that where, as here, the conveyance included all the property of the grantors as partners and p. 687individually, for the benefit of partnership and individual creditors, it should be construed distributively, and the partnership assets be applied to the payment of partnership debts and the individual assets to individual liabilities. And such is the fact. McCullough, v. Sommerville, 8 Leigh, 415 ; Gordon n . Cannon, 18 Grattan, 388. And, as pointed out by Mr. Chief Justice Waite, the difficulty, at the time the assignment was made, attendant upon any attempt to separate the partnership and individual assets, and the partnership and individual debts, would be considered under the view of the state courts, in passing upon the question of intent to defraud in failing to specifically distinguish between them.

“ And the said trustees, for the purpose of executing this trust, shall at once take charge of all the property and effects hereby conveyed, and make an inventory thereof, and proceed to collect the choses in action and all evidences of indebtedness, and to convert the real and personal property into cash as soon as possible, and they may make sale of the real and other personal estate hereby conveyed, at public auction or private sale, at such time or times and place or places and after such notice as to them shall seem best, and they may make such sale upon such terms and conditions as to them shall seem best, except that at any sale of said property, real or personal, at public auction, any creditor secured by this deed in the second class above enumerated shall have the right to purchase any part or parcel of said property so sold and pay the said trustees therefor at its full face value the amount found due such purchaser secured by this deed, or so much thereof as may be necessary to enable such creditor to complete the payment of his purchase money, and to enable as many creditors as possible to become bidders on these terms, the said trustee may have the real estate hereby conveyed, or any part thereof, laid off into lots or parcels, as they may think best. And upon the conversion of the said property hereby conveyed into moijey the said trustees shall distribute the same to the creditors hereby secured in the order herein p. 688before named with all diligence, and in the distribution between those creditors who may have purchased property and paid for the same under the provisions of this deed with a part of the money found due them respectively, and those who made no purchase, the trustees shall observe such rule of equality as will be just and proper.”

Nor are we able, in view of the current of decisions in Virginia and all the terms of the deed taken together, to concur with the receiver’s counsel that fraudulent intent is a necessary deduction from the permission to the creditors in the second class to avail themselves of their claims in bidding in the manner prescribed. The deed expressly stated that it was given to secure the costs and expenses, and then the payment of the indebtedness enumerated in the first class; “ and after the payment of the hereinbefore mentioned sums and claims, to secure, secondly, the following creditors to be paid equally and ratably if the property hereby conveyed shall be insufficient to pay them all, but with the privilege as to bidding on such property as may be sold at auction as hereinafter provided.” This contemplates the payment of the creditors in the first class before the bidding clause could take effect, and precludes the operation of that clause to the prejudice of those creditors. The record discloses that the total amount p. 689secured in the first class was less than fifty thousand dollars, of which the bank held more than four-fifths, and that the cash assets were much more than enough to cover the costs and expenses and this amount, without any sales; so that the facts correspond with the intention deducible from the language of the deed. The first-class creditors are to be paid before the second-class creditors can exercise the rig-ht to bid if sales by public auction ever take place. The bank is a creditor in the first and second classes and the sole creditor in the third class, but it has no ground of complaint as a third-class creditor, as the operation of the clause can only be for its benefit as such.

It should also be observed that the trustees are rendering vol . cxxxni—44 p. 690their reports under the direction of the court, and ask in their cross-bill “the aid and direction of this honorable court in the ascertainment of all and every the copartnership property and the individual property standing in the names of the individual members of the said copartnerships, or any of said members; and in the application of the trust funds to the payment of the debts secured; and in the administration of this their trust; and they are advised that it is their right and privilege to file this their bill, and to apply to this honorable court as a court of equity for the purpose aforesaid.” So that the receiver, having invoked the interposition of a court of equity, can find there, either on his own application or that of his adversary, a remedy for any injurious results he may apprehend in the administration of the trust. The court will see to it that, as far as practicable, partnership assets are applied to partnership liabilities and individual assets to individual liabilities, and .that the bidding clause shall not be put into operation unless in consonance with equity and good conscience.

It is earnestly argued, however, that the deed should be set aside because fraudulent in fact. We have patiently, but without success, examined this record in the effort to discover what specific acts are made out by the proofs establishing, in connection with the deed itself, actual fraud in its execution. The inquiry is not whether the grantors had been previously guilty of fraud or embezzlement, but whether this particular conveyance was made with a fraudulent intent known to the trustees or beneficiaries. Evans v. Greenhow, 15 Grattan, 153; Emerson v. Senter, 118 U. S. 1. It appears that the Bains weie indebted to the bank and also to their depositors in several hundred thousand dollars. It is said that they indulged in wild speculations in real and personal estate, stocks, bonds, mines, railroads, etc.; but that applies as well to the squandering of the seven hundred thousand dollars and upwards of deposits with them as a banking firm, as it does to the money that they absorbed from the bank; and in any view, the violation of their fiduciary relations to the bank, of which they were officers, or their treatment of the depositors in the banking p. 691firm of which they were members, does not render the assignment of all their property for the benefit of their creditors therefore fraudulent.

Counsel contends that the deed was in contravention of sections 5151 and 5234 of the Revised Statutes of the United States, which provide that the shareholders of every national banking association shall be held individually responsible for its debts to the extent of the amount of their stock, and, additional thereto, and that the Comptroller may enforce that individual liability. It is insisted that the capital stock is a trust fund of which the directors are the trustees, and that the creditors have a lien upon it in equity; that this applies to the liability upon the stock of a national bank ; and that no general assignment of his property for the payment of his debts can lawfully be made by a shareholder, certainly not .when he is a director. Undoubtedly unpaid subscriptions to stock are assets, and have frequently been treated by courts of equity as if impressed with a trust sub modo, in the sense that neither p. 692the stockholders nor the corporation can misappropriate such subscriptions so far as creditors are concerned. Richardson^ Executor v. Green, ante, 30, 44. Creditors have the same right to look to them as to anything else, and the same right to insist upon their payment as upon the payment of any other debt due to the corporation. The shareholder cannot transfer his shares when the corporation is failing, or manipulate a release therefrom, for the purpose of escaping his liability. And the principle is the same where the shares are paid up, but the shareholder is responsible in respect thereof to an equal addi* tional amount. There was, however, no attempt here to avoid this liability, and the fact of its existence did not operate to fetter these assignors in the otherwise lawful disposition of their property for the benefit of their creditors.

The argument is pressed that the trustees were neither bona fide purchasers for value nor purchasers without notice, because they must have had knowledge, for the reasons given, of the previous conduct of Bain & Bro. But, as we have already seen, that previous conduct did not render the assignment in itself fraudulent, although it is quite true that all the circumstances should be taken into consideration in passing on that question. It is urged that the trustees knew that Bain & Bro. had no right to make the deed, because on the 31st of March, when they transferred to the bank certain stocks and bonds of the face value of $640,000 and an estimated value of $570,000’ a member of the concern verbally promised that they would not make an assignment giving preferences against the bank. The transfer of these securities rendered the bank just so much better off, and counsel for the receiver concedes that p. 693the advice of the bank’s former counsel in regard to it, “ in the condition of the affairs of the bank at that date . . . was wise and proper, and did secure to the bank whatever can be realized from the sale of the securities delivered under the agreement of March 31, 1885.” The verbal promise not to make preferences constituted no Ifen upon Bain & Brd.’s property, and its disregard did not affect the validity of the deed. Nor is any issue in regard to it made upon the pleadings. It is noticeable that Bain & Bro. declined to incorporate that pledge in the written agreement transferring the securities, and we are not called upon to examine into the circumstances under which the promise so given failed to be carried out.

It was said by Mr. Justice Bradley in Frelinghuysen v. Nugent^ 36 Fed. Rep. 229, 239 : “ Formerly the equitable right of following misapplied money or other property into the hands of the parties receiving it depended upon the ability of identifying it; the equity attaching only to the very property misapplied. This right was first extended to the proceeds of the property, namely, to that which was procured in place of it by exchange, purchase, or sale. But if it became confused with other property of the same kind, so as not to be distinguishable, without any fault on the part of,the possessor, the equity was lost. Finally, however, it has been held as the better doctrine that confusion does not destroy the equity entirely, but converts it into a charge upon the entire mass, giving to the party injured by the unlawful diversion a priority of right over the other creditors of the possessor. This is as far as the, rule has been carried. The difficulty of sustaining the claim in the present case is, that it does not appear that the goods claimed —- that is to say, the stock on hand, finished and unfinished —were either in whole or in part the proceeds of any money unlaw- p. 694694: OCTOBER TERM, 1889.

fully abstracted from the bank.” The same difficulty presents itself here, and while the.rule laid down by Mr. Justice Bradley has been recognized and applied by this court, National Bank v. Insurance Company, 104: TJ. S. 54, 67, and cases cited, yet, as stated by the Chief Justice, “ purchases made and paid for out of the general mass cannot be claimed by the bank, unless it is shown that its own moneys then in the fund were appropriated for that purpose.” And this the evidence fails to establish as to any other property than that designated in the decree, although it is claimed, on behalf of the receiver, that the sum of $105,000 due to the bank upon certain notes of Wallace & Son, which had been discounted by Bain & Bro., and which were rediscounted for the latter by the bank, should have been traced into certain, property conveyed by Wallace & Son to Bain & Bro. The circumstances, so far as necessary to elucidate this claim, are as follows: Bain & Bro. owed the Richmond Cedar Works $31,885.71. The Exchange National Bank held the interest of Bain & Bro. in these works under the transfer of Bain & Bro. to the bank, of March 31, 1885. The Richmond Cedar Works owed the Exchange National Bank $140,000, upon which Wallace & Son were endorsers. Wallace & Son owed Bain & Bro. over $300,000. By a deed dated April 3,1885, Wallace & Son conveyed certain property to the Richmond Cedar Works for $55,000, receiving in payment the Cedar Work’s check on Bain & Bro. for $31,885.71, due from them to it, and the notes of the Cedar Works for the balance, which were turned over to Bain & Bro. By this transaction the indebtedness of Bain & Bro. to the Cedar Works was extinguished, and Wallace & Son’s indebtedness to Bain & Bro. reduced by the sum of $55,000. This left Wallace & Son still debtors of Bain & Bro. to the extent of over $245,000, and on the 6th day of April, 1885, they executed a deed of their remaining property to Bain & Bro., for the expressed consideration of $151,800, which property has passed under the assignment in this case. None of this property, so far as appears, was purchased with the money of the bank, but counsel for the receiver contends tha.t because Bain & Bro. had rediscounted the notes of Wallace and Son to the p. 695amount of $105,000 at the bank, and because the deed of Wallace & Son to Bain & Bro. was in payment of their indebtedness to the latter, in whole or in part, therefore it ought to be held that the bank’s money purchased Wallace & Son’s property for the benefit of Bain & Bro. We do not understand that the bank was entitled to the assets of Bain & Bro.’s debtors, and can perceive no ground for holding that Bain & Bro., in receiving the deed from Wallace & Son, were purchasing property with the money of the bank.

While it is well settled in Virginia that the trustees and beneficiaries in a deed of trust to secure bona fide debts occupy the position of purchasers for a valuable consideration; Wickham n . Lewis Martin, 13 Graft. 427; Evans v. Greenhow, 15 Gratt. 153, 156; KesnerN. Trigg, 98 U. S. 50, 53 ; yet they cannot hold with notice of the fraudulent intent of their grantor, or of the fraud rendering his title void. And it is equally well settled in the States of West Virginia and Virginia that notice p. 697to the trustees is notice to the beneficiaries. Fidelity Co. v. Shenandoah Valley Failroad, Supreme Court of Appeals, West Virginia, February 25, 1889, 9 Southeastern Reporter, 181, 185; Beverly v. Brooks, 2 Leigh, 446; French v. Loyal Go., 5 Leigh, 627, 641.

valuable considerations,” assigned to G. an interest in letters patent. G., by a writing executed the following day, made a further agreement with 8. as to the times and modes and amounts of payments, and further agreed that if he should fail to carry out his said agreements, the title p. 698was to revert to S.; Held, that the transfer was absolute, subject to be defeated by failure to perform the condition subsequent.

The assignment by Schwintzer to Albert Gräff was dated the 22d day of April, 1885, wras absolute in form and transferred title to six twenty-fourths of the patent for the expressed consideration of “the sum of one hundred dollars and for other valuable considerations; ” but a contract between Schwintzer p. 700and Albert Gräff was produced by the latter upon his examination by the respondents, which read as follows :

Albert Gräff testified in respect to the words, “ instead of the, in the patent letter mentioned, one hundred dollars for the first year,” etc., that they meant that, instead of the one hundred dollars mentioned in the assignment, he was to pay two hundred and fifty marks the first year, and that the contract was made one day later than the assignment. Counsel contends that the two documents must be construed together, and amount simply to an executory contract to assign when Gräff shall have paid the sum of 4000 marks; that, therefore, Gräff could at most only be regarded as a licensee of the interest under the patent, until such time as his contract should be executed according to its terms; and that the legal right as to six twenty-fourths of the patent remained in Schwintzer, who was therefore a necessary party. It is evident that the agreement was not drawn by parties well versed in English, p. 701but their intention, is sufficiently apparent. The assignment being absolute in form, conveyed the legal title, and on the next day the parties signed this contract, relating to the consideration, probably, to enable Albert Gräff to pay the 4000 marks out of the sales of the burners; at all events, it provides that if Gräff failed to carry out his covenants, then the title was to return to Schwintzer, which provision was in the nature of a security to him that he should be paid. The condition that if Mr. Albert Gräff did not, “against all expectations, stick to the agreements mentioned in S. 1 & 2, all titles of the patent letter ceded to him by Carl Schwintzer shall him return,” is a condition subsequent. The title had already vested, but was liable to be defeated in futuro on failure of the condition. There has been no such failure, but on the contrary Albert Gräff has paid the 4000 marks in full. We shall, therefore, not reverse the decree on the ground first referred to.

Letters patent had been granted to the original patentees for the invention by the government of Germany in 1879 and 1880. A portion of the burners in question were purchased in Germany from one Hecht, who had the right to make and sell them there. By section 5 of the imperial patent law of Germany, of May 25, 1877, it was provided that, “ the patent does not affect persons who, at the time of the patentee’s application, have already commenced to make use of the invention in the country, or made the preparations requisite for such use.” 12 Off. Gaz. 183. Hecht had made preparations to manufacture the burners prior to the application for the German patent. The official report of a prosecution against Hecht in the first criminal division of the Royal District Court, Ko. 1, at Berlin, in its session of March 1, 1882, for an infringement of the patent law, was put in evidence, wherefrom it appeared that he was found not guilty, and judgment for costs given in his favor, upon the ground “ that the defendant has already prior to Kovember 14, 1879 —that is to say, at the time of the application by the patentees for and within the State — made use of the invention in question, especially, however, had made the necessary preparations for its use. § 5, eodem. Thus p. 702' Schwintzer & Graff’s patent is of no effect against him, and he had to be acquitted accordingly.”

In Wilson v. Rousseau, 4 How. 646, it was decided that a party who had purchased and was using the Wood worth planing machine during the original term for which the patent w*as granted, had a right to continue the use during an extension granted under the act of Congress of 1836; and Mr. Chief Justice Taney, in Bloomer v. McQuewan, 14 How. 539, 549, says in reference to it, that “ the distinction is there taken between the grant of the right to make and vend the machine and the grant of the right to use it.” And he continues: “ The distinction is a plain one. The franchise which the patent grants consists altogether in the right to exclude every one from making, using or vending the thing patented without the permission of the patentee. This is all he obtains by the patent. And when he sells the exclusive privilege of making or vending it for use in a particular place, the purchaser buys a portion of the franchise which the patent confers. He obtains a share in the monopoly, and that monopoly is derived from, and exercised under, the protection of the United States. And the interest he acquires necessarily terminates at the time limited for its continuance by the law which created it. . . • But the purchaser of the implement or machine for the purpose of using it in the ordinary pursuits of life stands on different ground. In using it he exercises no rights created by the act of Congress, nor does he derive title to it by virtue of the franchise or exclusive privilege granted to the patentee. The inventor might lawfully sell it to him, whether he had a patent or not, if no other patentee stood in his way. And when p. 703the machine passes to the hands of the purchaser it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress.”

“ First exception. For that the said master has in and by his said report certified on page six thereof that ‘ the cap was p. 704the essential feature of the Gräff burner. The respondents adopted Gräff’s arrangement, and then reduced the price of the burner, forcing Gräff to do the same in order to hold his trade. The evidence shows that the reduction in prices by Gräff was solely due to the respondents’ infringement. So far as the evidence shows, the only competitors with Gräff in the use of his cap arrangement during the period covered by the accounting, were the respondents; ’ whereas the said master ought to have certified that respondents came innocently into possession of the burners by purchase in the ordinary course of business from legitimate manufacturers thereof in Germany, and that immediately upon being notified that they were claimed to be an infringement they ceased to sell the same. The evidence shows that at about the time Gräff made the alleged reduction in bhe price of his burners there were thrown upon the market lamp-burners of other kinds of equal or greater power, which came directly in competition with the Gräff burner, and that the reduction in price was the result of such competition; that the sale of 14 infringing burners by respondent in the course of three years’ trade could not have been a sufficient competition to plaintiff’s business to cause him to make a reduction of price, where the testimony shows that during the period from March 1st, 1886, when complainant reduced the price of burners, until October 81st, 1887, he sold about 6000 of said burners.

It is conceded that these exceptions raise two points, namely, that the infringement was not wilful, and that the reduction of prices was not caused solely by it. And this, as it seems to us, is quite sufficient to permit the real question p. 705involved to be passed upon. The master awarded $2970.50 as damages for the reduction in price, which, he holds, was caused by the respondents’ infringement. He says :

vol . cxxxm—45 p. 706Manufacturing Co. v. Sargent, 117 U. S. 536. The damages must be actual damages, but where the patented feature is the essential element of the machine or article, as in the case just cited, if such damages can be ascertained they may be awarded. When, however, a plaintiff seeks to recover because he has been compelled to lower his prices to compete with an infringing defendant, he must show that his ■ reduction in prices was due solely to the acts of the defendant, or to what extent it was due to such acts. Comely n . Marclawald, 131 IT. S. 159. There must be some data by which the actual damages may be calculated. New York n . Ransom, 23 How. 487 ; Rude v. Westcott, 130 IT. S. 152.

The evidence established that the first invoice of lamp burners contained fifty 20-wick burners with caps, of which respondents sold four; and fifty 12-wick burners with half caps, of which respondents sold twelve; and fifty 16-wick burners with half caps, of which respondents sold iorty-four; and that respondents altered the forty-six remaining 20-wick burners by changing their caps to half caps, and sold forty-four. This makes the one hundred with half caps, referred to by the master. Of the second invoice, the- respondents sold four 20-wick capped burners and six 16-wick capped burners, making, with four 20-inch burners with caps sold out of the first invoice, the fourteen capped wick burners reported as thus disposed of. The original bill in this case ¡was filed September 17, 1886. It had been preceded by another suit, which had been dismissed. The goods in the second invoice, it is testified, had been ordered before this suit was commenced, but the invoice is dated October 16, 1886. This invoice contained one hundred 20 and one hundred 16-wick burners with caps, of which respondents sold four 20-wick and six 16-wick burners unchanged as before p. 707stated. Most of this lot were still on hand at the time the testimony was taken, though some had been altered into what was called the “ Boesch burner,” which had no caps at all, and sold as such.

It is remarked by the master that “ it is a fact of common knowledge that there is to be found on sale in the market a great variety of lamp burners, among which, as shown by the evidence, have been for many years burners of the same general class as complainants’.” This being so, and Boesch & Bauer being dealers in burners generally, it is not to be presumed that Gräff reduced his prices, for nineteen months, p. 708on six thousand burners, not on account of competition in burners, but because of the effect upon his particular burner created by the sale of fourteen of the same kind, and of one hundred differing but the same in principle. Conceding that as Gräff granted no licenses, and had no established license fee, but supplied the demand for his burner himself, and was able to supply that demand, and that, therefore, if he was compelled to lower the price by the infringement he could recover for the loss thus sustained, does the evidence satisfactorily establish that the reduction in prices was due solely to the acts of the defendants in infringing ? The opinion of Mr. and Mrs. Gräff to that effect is not sufficient, and even that is so qualified as to fall far short of expressing it. The master allowed upon 3070 burners sold at wholesale, and on 2870 sold at retail, by the complainants, between March 1, 1886, and October 31, 1887, or 5940 in all. The sales of one hundred and four out of the one hundred and fourteen sold by the respondents apparently took place prior to the filing of the bill. Boesch had been in the business for twenty years. The firm of Boesch & Bauer carried a large stock of lamps, embracing a hundred varieties in styles and sizes, under a very large variety of names.

We cannot concur with the conclusion that the result of the sales of the one hundred and fourteen burners was to keep Gräff’s prices for his particular burner down from March 1, 1886, to October 31, 1887. If Boesch and Bauer had a burner which satisfied the public just as well as Gräff s, and which they could sell cheaper, Gräff cannot complain of the consequences. If Gräff’s burner was so much better than p. 709any other that the public must have it he could make his own price, and, if within the bounds of reason, find a sufficient market.

1. On June 14, 1887, the Fidelity National Bank of Cincinnati drew a draft for $100,000 on the Chemical National Bank of New York City, payable t0 the order of the American Exchange National Bank of Chicago, and put it into the hands of one W., who delivered it for value to K. & Co. They endorsed it for deposit to their account in the Chicago Bank, which credited its amount to them and paid their checks against it. It was not paid; Held, that the draft was a foreign bill of exchange; that W. did not act as the agent of the Cincinnati Bank; and that in a suit by the Chicago Bank against the receiver of the Cincinnati Bank, which had failed, to recover the amount of the draft, p. 718the Chicago Bank was a bona fide holder and owner of it for value, and want of consideration could not be shown by the receiver. Armstrong v. American Exchange Bank, 433.

3. All the questions presented and argued in this case have been often considered and decided by this court, and the court adheres to the p. 719decisions in Montclair v. Ramsdell, 107 U. S. 147; Bernards Township v. Stebbins, 109 U. S. 341; and New Providence v. Halsey, 117 U. S. 336. Bernards Township v. Morrison, 523.

by consuls, under the consular regulations of 1874 and 1881, prescri e p. 723by the President by virtue of the provisions of § 1745 of the Revised Statutes. United States v. Mosby, 273.

1. The city of Galesburg, Illinois, by an ordinance, granted to one Shelton, and his assigns, in May, 1883, a franchise for thirty years, to construct and maintain water works for supplying the city and its inhabitants with water for public and private uses, the city to pay a specified rent for fire hydrants, and a tariff being fixed for charges for water to consumers. In December, 1883, the water works were completed by a water company to which Shelton had assigned the franchise, anda test required by the ordinance was satisfactorily made, and the city,, by a resolution, accepted the works. The water furnished by the company for nine months was unfit for domestic purposes. After November, 1884, the supply of water was inadequate for the protection-of the city from fire, and its quality was no better than before. During eighteen months after December, 1883, the company haa ample p. 724time to comply with the contract. The city, by a resolution passed

13. By a contract for the construction of a jail, under the statute of Indiana, (which requires all such contracts to be let to the lowest responsible bidder, taking a bond from him for the faithful performance of the work,) the contractors agreed to construct the jail and to provide all the materials therefor within a certain time for the sum of $20,000, p. 726which the county commissioners agreed to pay, partly in monthly payments on their architect’s certificate, and the rest on the completion and acceptance of the building ; and it was agreed that the county should not in any manner be answerable or accountable for any material used in the work ; and that, if the contractors should fail to finish the work by the time agreed, they should pay $25 as liquidated damages for every day it should remain unfinished. The contractors assigned to a third person the obligation to do the iron work upon the jail, as if it had been awarded directly to him, and the right to recover therefor from the commissioners $7700 at the times mentioned in the original contract. The assignee did the work to the satisfaction of the commissioners, and to the value of $7700, but not within the time stipulated in the original contract; Held, that the assignments, though notified to the commissioners, if not assented to by them, did not make them liable to the assignee, or prevent them from making a settlement in good faith with the original contractors, lb.

6. On the dissolution of a corporation at the expiration of the term of its corporate existence, each stockholder has the right, as a general rule, and in the absence of a special agreement to the contrary, to have the partnership property converted into money, whether such a sale e p. 727necessary for the payment of debts, or not. Mason v. Pewabic Mining Co., 50.

8. A State is an indispensable party to any proceeding in equity in which its property is sought to be taken and subjected to the payment of its obligations. Christian v. Atlantic fy North Carolina Railroad Co., 233. 9. The State of North Carolina subscribed in 1856 for capital stock in a railway company which had been incorporated by its legislature, issued its bonds with thirty years to run, sold them, and with the proceeds paid its subscription, and received certificates of stock therefor, which certificates it never parted with and still holds. In the act incorporating the company and authorizing the issue of the bonds it was provided that as security for their redemption “ the public faith of the State ” “ is hereby pledged to the holders,” “ and in addition thereto all the stock held by the State” in the railroad company “ shall be pledged for that purpose ”, and that “ any dividend ” on the stock “ shall be applied to the payment of the interest accruing on said coupon bonds.” The State being in default in the payment of the interest due on the bonds’ since 1868, a bondholder, who was a citizen of Virginia, brought suit in the Circuit Court of the United States in the Eastern District of North Carolina against the Railroad Company, its president and directors, the person holding the proxy of the State upon the stock held by it, and the treasurer of the State, praying to have the complainant’s bonds decreed to be a hen upon the stock owned by the State and upon any dividends that might p. 731be declared thereon, and that such dividends might be paid to complainant and to such bondholders as might join in the suit, and for the sale of the stock if the dividends should prove insufficient, and for an account, and for the appointment of a receiver, and for an injunction; Held, that, as the State was an indispensable party to the suit, the bill must be dismissed, lb.

An insolvent debtor of Louisiana, under the insolvent laws of that State, surrendered his property for the benefit of his creditors, the surrender p. 733was duly accepted, and the creditors elected a syndic who qualified and was commissioned as such. On his schedules the debtor returned the house in which he resided and the furniture therein as the property pf his wife to w’hich he had no claim. The syndic did not take possession of it, and laid no claim to it until a foreign creditor, who was not a party to the proceedings in insolvency, and who had obtained a judgment against the debtor in the Circuit Court of the United States after the insolvency, levied upon the house as the property of the debtor. The syndic then filed in the creditor’s suit a third opposition, setting up claim to the property, and praying that the seizure under the execution be set aside, and that the marshal be enjoined from levying upon it. A decree in accordance with the prayer was entered, conditioned upon the syndic’s paying cost of seizure and filing in the Circuit Court an order from the state court to the syndic to take possession of the property, and to administer it as part of the insolvent’s estate ; Held, that there was no error in this decree, but that it was eminently judicious and proper. Geilinger v. Philippi, 246.

(2) The railroad companies were’ beneficiaries under the policy, because p. 734they had an insurable interest in the cotton, and to that extent were its owners, and it was held in trust for them by the plaintiff;

11. To a master’s report upon the damages to be awarded in an equity suit for the infringement of letters patent the bill of exceptions raised the points: (1), that the infringement was not wilful; (2), that the reduction in price of the article manufactured by the plaintiff was not p. 737solely due to the infringement; Held, that this was sufficient to bring before the court the whole subject of the computation of damages, lb. See Clai ms aga ins t th e Unite d Consul , 5;

3. The stewardess of a steam-vessel belonging to a corporation sued it to recover damages for personal injuries sustained by her. She came out of the cabin, which was on deck, to throw the contents of a pail over the side of the vessel, at a gangway facing the door of the cabin, and leaned over a railing at the gangway, composed of four horizon- p. 739tai rods, which gave way, because not properly secured, and she fell into the water, probably striking the side of a boat. The rods were movable, to make a gangway, and had been recently opened to take off some baggage of passengers, and not properly replaced. The porter and the carpenter had attempted to replace them, but left the work, knowing that it was unfinished. The persons composing the ship’s company were divided into three classes of servants, called three departments—the deck department, containing the first and second officers, the purser, the carpenter and the sailors; the engineer’s department, containing the engineers, the firemen and the coal-passers; and the steward’s department, containing the steward, the waiters, the cooks, the porter and the stewardess. Every one on board, including the plaintiff, had signed the shipping articles, and she had participated in salvage given to the vessel. The master was in command of the whole vessel; Held, that the porter and the carpenter were fellow-servants with the plaintiff, and that the corporation was not liable to her for any damages. Quebec Steamship Co. v. Merchant, 375.

S. gave two deeds of trust of a lot of land in the District of Columbia to secure loans made by P. Afterwards he gave a deed of trust of the same lot to secure a loan made by C., that deed covering also a lot in the rear of the first lot, and fronting on a side street. At the time all the deeds were given, there was a dwelling-house on the premises, the main part of which was on the first lot, but some of which was on the rear lot. P., on an allegation that B., a trustee in each of the first two deeds, had refused to sell the property covered .by them, filed a bill asking the appointment of a trustee in place of those appointed by the first two deeds. The suit resulted in a decree appointing a new trustee in place of B., “in the deed of trust,” but not identifying which one. The new trustee and the remaining old one then sold the land at auction to P., under the first trust deed. S. then filed a bill ta set aside the sale, and P. filed a cross bill to confirm it. The bill was dismissed. P. then filed this bill against S. and C., and all necessary parties, to have a trustee appointed to sell the land covered by the three trust deeds, and the improvements on it, to have a receiver of the rents appointed, and to have the rents and the proceeds of sale applied first to pay P. A receiver was appointed, and a decree made p. 740for the sale of the entire property, as a whole, by trustees whom the decree appointed, and for the ascertainment by the trustees of the relative values of the land covered by the first two trust deeds and the improvements thereon, and of the rear piece of land and the improvements thereon, and for the payment to P. of the net proceeds of sale representing the value of the land and improvements covered by the first two trust deeds, less the expenses chargeable thereto, and of the residue to C., and, out of the rents, to P., what he had paid for taxes and insurance premiums, and for a personal decree against S., in favor of P., for any deficiency in the proceeds of sale to pay the claims of P.; Held, (1) It was the intention of both S. and P. that the first two deeds of trust should include the rear land as well as the front lot; (2) The decree in the first suit by P. was so uncertain as to be practically void, and there was no effective appointment of a trustee and no effective sale to P.; (3) P. was not estopped by that sale from having the property sold again; (4) P. was not required, as a condition of the sale of the rear lot, to pay the whole of the debt due to C.; and the case was a proper one for selling the property as an entirety; (5) It was, also, a proper one for the appointment of a receiver of the rents, and those rents in the hands of the receiver, after paying charges, ought to go to make up any deficiency in the proceeds of sale to satisfy the corpus of all the secured debts, and ought to be first applied to pay any balance due to P.; (6) Under § 808 of the Revised . Statutes relating to the District of Columbia a decree in personam for a deficiency is a necessary incident of a foreclosure suit in equity; (7) As the notes secured by the deeds of trust bore interest at the rate of nine per cent per annum, until paid, it was proper to allow that rate of interest on the principal until paid, and not to limit the rate to six per cent after decree, because the contracts were not merged in the decree; (8) The rate of interest on the decree for deficiency is properly six per cent, under §§ 713 and 829 of said Revised Statutes. (9) The statute of limitation not having been pleaded as to any part of the principal or interest, the defendant cannot avail himself of it. Shepherd v. Pepper, 626.

2? When both the executive and legislative departments of the State have p. 741given notice to the world that a county within the territorial limits of the State of Kansas has been duly organized, and exists, with full power of contracting, it is not open to the county to dispute those facts in an action brought against it by a holder of its bonds, who bought them in good faith in open market, lb.

1. A national bank went into voluntary liquidation in September, 1873. Before that it had become liable to a state bank, as guarantor on sundry notes, made by a third person, and which were discounted for it by the state bank. In August, 1874, transactions took place between the maker of the notes and the state bank, and the person who acted as the president of the national bank, whereby the maker was released from further liability on the notes, but such acting president attempted to continue, by agreement, the liability of the national bank as guarantor. In a suit begun in October, 1876, a judgment on the guaranty was obtained in May, 1880, by the state bank against the national bank. In a suit brought by a creditor against the national bank and p. 742its stockholders to enforce their statutory liability for its debts, the court on an application made in June, 1887, enquired into the liability of the stockholders to have the claim of the state bank enforced as against them, in view of the transactions of August, 1874, and disallowed that claim; Held, (1) It was proper to reexamine the claim; (2) The judgment against the bank was not binding on the stockholders in the sense that it could not be reexamined; (8) The guaranty of the bank was released as to the stockholders by the release of the maker of the notes; (4) The rights of the stockholders could not be affected by the acts of the president done after the bank had gone into liquidation. Schrader v. Manufacturers’ Bank, 67.

4. The claim of letters patent No. 190,152, granted May 1, 1877, to Alexander C. Martin, for- an “improvement in furniture casters,” namely, “ The floor-wheels EE, the anti-friction pivot wheel F, the housing B, the elliptical housing opening, or its mechanical equivalent, p. 744and the rocker-formed collar bearing, or its mechanical equivalent, all combined so as to allow the floor-wheel axis to oscillate horizontally, substantially as and for the purpose specified,” being a claim selected by the patentee in obedience to the requirements of the Patent Office, after an extended construction of it had been rejected, and being a combination of specified elements, must be limited to a combination of all such elements. Phoenix Caster Co. v. Spiegel, 360.

R. loaned to a railroad company $100,000 upon its notes, and received from it 1250 shares of paid-up stock as a bonus, and 200 mortgage bonds of the company, and the practical control of the board of directors of the corporation. After this he demanded of this board 100 more bonds, as further collateral, and they agreed to it. Subsequently he proposed to the board that he would make further advances if they would put p. 745place, R. claimed to hold these 400 bonds individually, as collateral for his debt; Held, that as between him and the other creditors of the company, he could not, under the circumstances, hold them as collateral for his debt. Richardson’s Executor n . Green, 30.

An envoy extraordinary and minister plenipotentiary of the United States to Turkey was never appointed before July 13, 1882. On that day, the claimant, being minister resident and consul general of the United States to Turkey, at a salary of $7500 a year, was appointed to the higher grade. By each of the diplomatic appropriation bills of 1882, 1883 and 1884, $7500 was appropriated for the salary of an envoy extraordinary and minister plenipotentiary to Turkey. The claimant, having been paid the $7500 salary for each of those years, sued in the Court of Claims to recover the difference between that amount and an annual salary of $10,000, claiming the latter under § 1675 of the Revised Statutes, as amended by the act of March 3, 1875, c. 153, 18 Stat. 483 ; Held, that as, under the amendment of 1875, the salary was to be $10,000, “ unless where a different compensation is prescribed by law,” and the office did not exist before July 1, 1882, and the first provision made by Congress for a salary for it was made by the act of p. 748July 1, 1882, and was for. $7500, and the same provision was continued while the claimant thereafter held the office, and he was paid the $7500, he had no further claim. Wallace v. United States, 180.