[103]

and the satisfaction entered on the mortgage,
be declared null and void; that the bond and
mortgage be declared valid and subsisting ob-
ligations of Small to Robertson, as the trustee
of a trust for the benefit of the defendant and
her sisters; and that Small be decreed to pay
the defendant and the plaintiffs the amount of
money secured by the bond and mortgage.
Under replications to the answers, proofs
were taken by the several parties. The case
was heard on its merits, and a decree was made
dismissing the bill, with costs. From this de-
cree the plaintiffs and the defendant Helen Rob-
ertson Blacklock have appealed to this court.
It appears by the proofs in the record that
John F. Blacklock, the assignor of the bond,
was, at the time of the assignment, a citizen of
South Carolina, and continued to be such until
this suit was commenced, and that the defend-
ant Small was, when this suit was commenced,
a citizen of South Carolina. Under these cir-
cumstances the provision of the first section of
the Act of Congress of March 3, 1875, chap.
137, 18 Stat. at L. 470, applies to this case.
That provision is as follows: "Nor shall any
circuit or district court have cognizance of any
suit founded on contract in favor of an assignee,
unless a suit might have been prosecuted in
such court to recover thereon if no assignment
had been made, except in cases of promissory
notes negotiable by the law merchant, and bills
of exchange."

In Bushnell v. Kennedy it was said, though not determined, because not necessary to that case, that the provision of the 11th section of the Judiciary Act of 1789 did not apply to a naked right of action founded on a wrongful act or a neglect of duty, to which the law attached damages.

In the present case, the bill is clearly one for a decree against Small for the amount of the bond, and for a foreclosure of the mortgage and a sale of the mortgaged premises.

There is another difficulty in the case, on
the question of jurisdiction. The bond was a
unit; the mortgage was a unit; and the assign-
ment of the bond by Blacklock to Robertson
in trust for the children of Blacklock was a
unit. The bond cannot be enforced against
Small, nor can the mortgaged premises be sold,
in favor of the two plaintiffs alone. The re-
lief asked in the suit must necessarily be for
the benefit of the defendant Helen Robertson
Blacklock, as well as for the benefit of the
plaintiffs, especially as, by her answer, she
ranges herself on the side of the plaintiffs as
against Small, joins in the prayer of the bill,
and asks that the payment of the bond and
the satisfaction of the mortgage be declared
void, and that the bond and mortgage be de-
clared valid in the hands of Robertson as trus-
tee for the benefit of herself and the plaintiffs,
and that Small be decreed to pay to herself
and the plaintiffs the amount of money secured
The present suit is a suit against Small, by the bond and mortgage, with interest. The
founded on contract, namely, his bond and suit is therefore shown to be one substantially
mortgage in favor of the plaintiffs, who claim by and for the benefit of Helen Robertson
only under the assignment made by their father, Blacklock, and the proofs show that, at the
John F. Blacklock, to the defendant Robert-time of the commencement of the suit, she was,
John F. Blacklock could not have pros-
ecuted this suit in the Circuit Court of the
United States for the District of South Caro-
lina, to recover on the bond and mortgage
against Small, if he had made no assignment
of the bond to Robertson; for the reason that
he and Small were not citizens of different
States when the suit was coinmenced, but were
both of them at that time citizens of South
Carolina.

son.

and has since then always continued to be, a
citizen of South Carolina, of which State Small
was and is a citizen. Ayres v. Wiswall, 112 U.
S. 178 [28:693]; Thayer v. Life Asso. 112 U. S. [105]
717 [28:864]; New Jersey Cent. R. R. Co. v.
Mills, 113 U. S. 249 [28:949]; Louisville & N.
R. R. Co. v. lde, 114 U. S. 52 [29:63].

The circuit court ought therefore to have
dismissed the bill for want of jurisdiction, and
not upon the merits. For this error its decree
In answer to this objection it is contended is reversed, with costs in this court against the
by the appellants that this suit is not to be re-appellants, because the reversal takes place on
garded as a suit founded on the contract of account of their fault in invoking the juris-
Small, to recover thereon, but is to be regarded diction of the circuit court when they had no
as a suit for the delivery of the bond and mort-right to resort to it,-Mansfield, C. & L. M. R.
gage by Small to the plaintiffs, founded on
their wrongful detention, and that the rest of
the relief prayed by the bill is ancillary and in-
cidental; and the cases of Deshler v. Dodge, 57
U. S. 16 How. 622 [14: 1084], and Bushnell v.
Kennedy, 76 U. S. 9 Wall. 387 [19:736], are cited
as authorities; but they do not apply.

to

The case of Deshler v. Dodge was an action of replevin, brought by a citizen of New York [104] against a citizen of Ohio, in the Circuit Court of the United States for the District of Ohio, recover possession of a package of bank bills. The title of the plaintiff to the contents of the package was derived by assignment from corporations of Ohio. This court held that the action could be maintained, although the assignors could not have brought the suit, and that the suit was not one to recover the contents of a chose in action, within the meaning of section 11 of the Judiciary Act of September 24, 1789.

Co. v. Swan, 111 U. S. 379, 388, 389 [28:462,
466],-and the case is remanded to the Circuit
Court, with a direction to dismiss the bill for
want of jurisdiction, without costs of that court.

FRANKLIN C. SMITH, Appt.,

[105]

[106]

complainant its claim against the county for bonds
of the county, and to require the county to sign
and deliver to the complainant such bonds in pay-
ment of the judgment,-Held, that the only remedy
which the company had against the county to com-
pel the issuing and delivering of the bonds was by

mandamus.

2. Held, also, that complainant can have no greater
rights against the county than the railroad com-
pany has, and that relief by mandamus cannot be
granted in equity, but only at law.
3. Held, also, that a decree might be justified
against the railroad company for an assignment of
its right to the bonds, and requiring the railroad
company to permit the use of its name for their
recovery by the appropriate proceeding at law.
4. The right to proceed against the county is a
purely legal right, and can only be prosecuted at
law, notwithstanding the equitable nature of the
complainant's rights as against the railroad com-

pany.

issuing of bonds of said County in the sum of
$150,000, to secure the construction of a rail-
road from Fort Scott westwardly, north of the
Marmaton River, in the general direction of
Humboldt, in Allen County.

This order directed "that there be subscribed, in the name and for the benefit of the County of Bourbon, in the State of Kansas, $150,000 to the capital stock of any railroad company now organized, or that shall be organized hereafter, that shall construct a railroad commencing at the city of Fort Scott, in the county and State aforesaid, running from thence west, north of the Marmaton River, upon the most practical route in the general direction of Humboldt, Allen County, Kansas; and that the bonds of said County be issued to said company for the payment of said subscription, said bonds to be payable within thirty years from the date thereof, and bearing interest payable semi-annually at the rate of seven per centum per annum; Provided, That said bonds shall not be issued until the question shall have been submitted to a vote of the qualified electors of the county of Bourbon aforesaid, and shall have received a majority of the votes cast upon said proposition in favor thereof, in pursuance of the provisions of the statutes in such cases made and provided; and that said question shall be submitted to said electors at a special election on Tuesday, the 24th day of Submitted Feb. 17, 1888. Decided April 23, 1888. August, A. D. 1869. At said election the votes shall be cast 'for railroad bonds' and 'against

5. To give a court of equity Jurisdiction, the
nature of the relief asked must be equitable, even
when the suit is based on an equitable title.
6. Section 716, Revised Statutes, construed in
connection with sections 1 and 2 of the Act of 1875,
operates to prevent the issuing, by the United
States Circuit Court, of a writ of mandamus, except
in aid of a jurisdiction previously acquired by that
court; and therefore no application could be en-
tertained in that court for a mandamus against the
county at the suit of the railroad company.
7. Where the relief sought cannot be granted in
equity, and the circuit court is without jurisdiction
to grant the relief, it cannot decide the case on its
merits: and a decree, dismissing the bill generally,
will be modified so that the dismissal shall be with
out prejudice to complainant's rights to proceed at

law.

[No. 193.]

railroad bonds, and if it shall

canvass of the votes cast at said election, by
proper officers, according to law, that a majority
of the votes cast upon said election are in favor
of said subscription, then the said order shall

APPEAL from a decree of the Circuit Court
of the United States for the District of
Kansas, dismissing a suit to subject to the satis-
faction of a judgment against a railroad com-
pany an alleged indebtedness of a county to the
judgment debtor. Decree modified, so as to dis-be carried into practical operation by the issu-
miss the suit without prejudice as against the
county, and retaining the suit, if complainant
elects, and shows title to relief against the rail
road company alone.

Statement by Mr. Justice Matthews:

This is a bill in equity filed January 28, 1880, in the nature of a creditor's bill, The appellant was the complainant below, and in December, 1879, recovered a judgment at law in the Circuit Court of the United States for the District of Kansas for $267,113.19, besides costs, against the Fort Scott, Humboldt and Western Railroad Company, on which judg. ment an execution has been issued and returned unsatisfied, the defendant corporation being insolvent. The object of the present bill is to subject to the satisfaction of this judgment an alleged indebtedness of Bourbon County, Kansas, to the judgment debtor, the Fort Scott, Humboldt and Western Railroad Company. That indebtedness consists in a supposed legal obligation on the part of the Board of Commissioners of Bourbon County to issue and deliver to the Fort Scott, Humboldt and Western Railroad Company municipal bonds of the County in payment of a subscription of stock in the sum of $150,000. The obligation to issue and deliver these bonds is alleged to arise upon the following facts:

On July 23, 1869, the Board of Commissioners of Bourbon County made an order, submitting a proposition to the voters of the county for the subscription of stock and the

ing of said bonds to the said company whenever
the County Commissioners of Bourbon County
are satisfied that the bonds herein provided for,
with the other resources of the said company,
shall be sufficient and adequate to complete the
construction of the roadbed, ready for the iron,
from the city of Fort Scott to the west line of
Bourbon County," etc.

There was no record of the notice of the
election preserved or filed in the clerk's office;
but as a fact the proof showed that the notice
of the election was first given on July 28, 1869,
by publication in the Fort Scott Monitor, a
weekly newspaper published at Fort Scott in
said county, and for three successive weeks
thereafter, the last publication being on Au-
gust 18th, and the election on the 24th day of
August. On August 27th the vote was duly
canvassed by the Board of Commissioners, and
was ascertained to be in favor of the subscrip-
tion and issuing of bonds by a majority of over
700. In October, 1870, more than a year after
the bonds were voted, the Fort Scott and Allen
County Railroad Company was organized, un-
der the general laws of the State of Kansas, for
the purpose of building a railroad from Fort
Scott westwardly, on the north of the Marma-
ton River, in the general direction named in the
order under which the election was held. The
corporators and directors of this railroad were
composed largely of citizens of Bourbon
County.

[107]

Soon after the organization of said railroad [108] company the Commissioners of Bourbon Coun

ernment, in some of its departments, for compensation in satisfaction of their respective claims; and this compensation the various Acts of Congress heretofore mentioned provided. The claimant in this case does not seek to recover upon any supposed obligation created by the Treaty of Washington, but upon the spe[57] cific appropriation made in the Act of June 2, 1886. It was under this Act that a means of satisfaction of this claim was provided. The claim may therefore be said to be "founded upon a law of Congress," within the meaning of Rev. Stat. § 1059, and therefore clearly one of which the court of claims could take jurisdiction.

[58]

It may be said, in opposition to this view of the case, that, had there been no Treaty of Washington, there would have been no fund of $15,500,000 to distribute; the Act of June 5, 1882, would never have been passed; and therefore that the Treaty is the basis of all he subsequent legislation, and consequently the basis of this claim, in other words, that therefore this claim is "dependent upon and grows out of" the Treaty of Washington.

We are of opinion, however, that such a dependency upon or growing out of is too remote

CHARLES H. PAGE, Appt.,

v.

UNITED STATES.

(See S. C. Reporter's ed. 67-69.)
Section 51, Rev. Stat.-vacancy in Congress.

Revised Statutes, in regard to a vacancy in Con-
1. The proper construction of section 51 of the
gress, is that the predecessor of the person elected
to fill a vacancy must be a person who was the pre-
decessor in the same Congress.
2. One whose credentials showed that he was
regularly elected a member of Congress, and who
was sworn in and took his seat, and served, and
drew the salary, was-although his seat was con-
tested, and subsequently he was declared by Con-
gress not to have been elected, and his seat was de-
clared vacant-the predecessor of the person
within the meaning of said section.
elected to fill the vacancy in the same Congress
[No. 1387.]

Submitted April 2, 1888. Decided April 16, 1888.

APPEAL from a judgment of the Court of
Claims dismissing a petition of claimant
for pay as a member of Congress. Affirmed.
The facts fully appear in the opinion.
Mr. Allan Rutherford for appellant.
Mr. A. H. Garland, Atty-Gen., and He-

Mr. Justice Blatchford delivered the opinion of the court:

to come within the meaning of Rev. Stat.ber J. May, Asst. Atty-Gen., for appellee.
1066. In our view of the case, the statute
contemplates a direct and proximate connection
between the Treaty and the claim, in order to
bring such claim within the class excluded
from the jurisdiction of the court of claims by
Rev. Stat. § 1066. In order to make the claim
one arising out of a treaty within the meaning
of Rev. Stat. § 1066, the right itself, which the
petition makes to be the foundation of the
claim, must have its origin-derive its life and
existence-from some treaty stipulation. This
ruling is analogous to that of the ancient and
universal rule relating to damages in common-authority to have been elected, received a cer-
law actions, namely, that a wrongdoer shall be
held responsible only for the proximate, and not
for the remote, consequences of his actions.

This disposition of this question renders it unnecessary to consider whether section 1066 has been repealed by the subsequent Act of Congress, approved March 3, 1887, supra, since, if there has been such repeal, it is admitted, on all hands, that the court of claims would have jurisdiction of the case.

On the merits of the case, we think there can be no doubt that the accounting officers of the Treasury Department were in error in charging to and deducting from the fund the expenses of the Tribunal of Arbitration at Geneva. The payment of those expenses had already been provided for by Congress by the Act of December 21, 1871, 17 Stat. at L. 24, and were never chargeable to this fund.

In the language of the court below: "Section 5 of the Act of June 2, 1886, supra, fixes the amount of the fund, and specifies exactly what shall be deducted from it, and provides that the balance shall be distributed to the judgment creditors. The item thus deducted was not among those thus specified."

We are of the opinion that the claimants are entitled to their share of the amount thus improperly deducted, and the decision of the Court of Claims is therefore affirmed.

This is an appeal by the claimant from a
judgment of the court of claims, dismissing
his petition, on the following facts found by
that court: An election was held on the 4th
of November, 1884, in the Second Congres-
sional District of Rhode Island, for the purpose
of electing by the people a representative in
the Forty-ninth Congress, for that district.
William A. Pirce was declared by the proper

tificate of election from the Governor of the
State, and was sworn in and took his seat in
the Congress of the United States on the 4th of
March, 1885. His election was contested by
Charles H. Page. On the 25th of January,
1887, the House of Representatives of the 49th
Congress agreed to the following resolution,
to wit: "Resolved, that William A. Pirce was
not elected a member of the House of Repre-
sentatives of the Forty-ninth Congress from
the Second Congressional District of Rhode
Island, and that the seat be declared vacant."
An election was thereafter held in Rhode
Island to fill such vacancy, and, on the 25th of
February, 1887, Charles H. Page presented to
the House of Representatives a certificate from
the Governor of Rhode Island, setting forth
that he was, on the 21st of February, 1887,
regularly elected a representative from that
State in the Forty-ninth Congress, to fill the
vacancy caused by the action of the House of
Representatives in declaring the seat of Wil-
liam A. Pirce vacant. Thereupon Page was
sworn in and took his seat. Pirce occupied
the seat from March 4, 1885, to January 25,
1887, was recognized as the sitting member,
voted, served on committees, and drew the
salary for that time, amounting to $9,468.18,
and also received mileage in the sum of $344.
Page occupied the seat from February 25,
1887, to March 3, 1887, was recognized as the

65

[67]

[68]

[69]

The proper construction of section 51 is that
the predecessor of the person elected to fill a
vacancy must be a person who was the prede-lant:
cessor in the same Congress. If no such per-
son is to be found, because no such person
was duly elected, Page had no predecessor in
the sense of section 51, and that section does
not apply to his case. But we think that,
under the proper construction of section 51,
Pirce was the predecessor of Page as to com-
pensation or salary. His credentials showed
that he was regularly elected; he must have
been placed on the roll of Representatives elect,
under section 31 of the Revised Statutes; he
was sworn in, took his seat, voted, served on
committees, and drew the salary and the mile-
age. Under sections 38 and 39 he was entitled
to his salary, because his credentials, in due
form of law, had been duly filed with the
clerk, under section 31, and because he took
the required oath. Section 51 refers only to a
vacancy occurring after the commencement of
a particular Congress, and in the membership
of that Congress; and the reference to a "pre-
decessor" is plainly intended to apply only to
a predecessor in that Congress. If there was
any such predecessor of Page, it was Pirce. If
there was no predecessor of Page in that Con-
gress, section 51 does not apply to the case.

The judgment of the Court of Claims is af-
firmed.

[18