Houghton in that State, on April 30, 1873, to Samuel S. Smith and William Harris; expressed to be made in consideration of the indorsement by Smith and Harris of several promissory notes of Bendey, therein described, payable to the order of Thomas W. Edwards, at the First National Bank of Houghton; conditioned that if Bendey should pay the notes at maturity and should save and keep harmless the mortgagees of and from all costs and charges arising from or on account of said indorsements; and empowering the mortgagees, in case of default by Bendey, in the payment of the notes or either of them, to sell the land by public auction and convey it to the purchasers, rendering the surplus money, if any, arising from the sale, to the mortgagors, after deducting the costs and charges of the sale, "And also $100 as an attorney fee, should any proceedings be taken to foreclose this indenture under the statute, and the same sum as a solicitor's fee, should any proceedings be taken to foreclose the same in chancery.' The other facts appearing by the record are as follows: Smith and Harris, who were partners, signed their partnership name upon the back of the notes before their delivery to Edwards. One of these notes, for $5,000, became payable on May 4, 1876 and, not being paid by Bendey, was protested for non-payment, and an action was brought thereon by Edwards against Smith and Harris, who, before judgment in that action, paid the amount of the note, with interest. Edwards indorsed the amount as a full payment on the note, and delivered up the note to Smith and Harris; and they entered the amount paid by them upon their books in their general account against Bendey and, afterwards, on September 5, 1877, assigned the mortgage, and the land therein described, together with the note or obligation therein also mentioned, to William Brigham and Amos Townsend, trustees. This assignment was in fact made in part payment of debts due from Smith and Harris to firms of which Townsend and Brigham were respectively members. Townsend and Brigham, who were citizens of Ohio, filed a bill in equity against Bendey and wife, who were citizens of Michigan, in a court of this State, alleging the facts aforesaid, and praying for an account, for the foreclosure of the mortgage by sale of the land, for the payment by Bendey of any balance remaining due to the plaintiff of the principal and interest of the note and mortgage, and for general relief. After the filing of answers and replication, the case was removed, on petition of the defendants, into the Circuit Court of the United States for the Western District of Michigan, and a hearing there had, upon which the facts above stated were proved and a decree entered that the defendants pay to the plaintiffs the sum of $7,996.59 with interest, together with a solicitor's fee of $100, and that in default of such payment the land be sold by public auction and conveyed under the direction of a master in chancery, and the proceeds of the sale applied to the payment of these sums, and that, if the proceeds of the sale should be insufficient for such payment, the amount of the deficiency, with interest, should be paid by Bendey to the plaintiff. From this decree the defendants appealed to this court. The contract into which Smith and Harris entered, by signing their names on the back of the note before its delivery to the payee, though styled in the mortgage an indorsement, was rather, as towards the payee or a subsequent indorsee of the note, that of joint makers with Bendey. Good v. Martin, 95 U. S., 90 [XXIV., 341]; Rothschild v. Grix, 31 Mich., 150. But, whether their liability in that aspect should be treated as that of promisors or of guarantors or of indorsers, it is clear that, having signed their names to the note for the accommodation of Bendey, their relation towards him was that of sureties, and they had the right, upon being obliged to pay the amount of the note on his failure to pay it at maturity, to recover from him the sum so paid. The mortgage, containing a condition to indemnify them against all costs and charges arising from their contract, was security to them for the payment by the mortgagors to them of that sum. The entry, in the regular course of their book-keeping, of the amount so paid in general account against Bendey, did not merge nor extinguish the mortgage or the personal liability of Bendey to them. The assignment by them to Townsend and Brigham, of the mortgage, together with the obligation therein mentioned, was a valid assignment, in equity at least, of the mortgage, as well as of their claim against Bendey for the repayment of the sum paid by them on the note. The assignees were, therefore, rightly held to be entitled to a decree for the foreclosure of the mortgage, and also under the Ninety-Second Rulein equity, to a decree against Bendey himself for so much of the sum paid by Smith and Harris, with interest, as the money obtained by the sale of the land under the foreclosure should be insufficient to satisfy. The decree below is, therefore, right in all respects except in allowing a solicitor's fee of $100. The land is in Michigan, the notes and mortgage were made and payable in Michigan; and by the law of Michigan, as settled by repeated and uniform decisions of the Supreme Court of that State, a stipulation in a mortgage to pay an attorney's or solicitor's fee of a fixed sum is unlawful and void, and cannot be enforced in a foreclosure, either under the statutes of the State, or by bill in equity. Bullock v. Taylor, 39 Mich., 137; Myer v. Hart, 40 Mich., 517; Vosburgh v. Lay, 45 Mich., 455; Van Marter v. McMillan, 39 Mich., 304; Botsford v. Botsford, 49 Mich., 29. Upon such a question, affecting the validity and effect of a contract made and to be performed in Michigan, concerning land in Michigan, the law of the State must govern in proceedings to enforce the contract in a Federal Court held within the State. Brine v. Ins. Co., 96 U. S., 627 [XXIV., 858]; Ins. Co. v. Cushman [ante, 648]; Equator Co. v. Hall [ante, 114]. The result is, that the decree must be reversed, without costs to either party in this court, and the case remanded to the Circuit Court with directions to enter a decree for the plaintiffs, with costs, modified by striking out the allowance of the solicitor's fee. Decree accordingly. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. HERMAN S. BACHMAN ET AL., Plffs. in sums of money might be awarded on the claim, Err., v. JAMES LAWSON ET AL. (See S. C., Reporter's ed., 659-664.) and to give in their name proper acquittances therefor; to execute all papers necessary to secure the transfer of the claim to any party, department or government which might assume the payment thereof; and to employ for the prosecution of the claim such attorneys as they Compensation of attorney-share of claim-lien might think fit. for. *1. An agreement, made a fortnight before the Treaty of Washington of 1871, and by which the owners of a ship and cargo taken by the armed rebel cruiser, The Florida, employed a person, whether an attorney at law or not, to use his best efforts to colJect their claim arising out of the capture, and authorized him to employ such attorneys as he might think fit to prosecute it, and promised to pay him a compensation equal to twenty-five per cent of whatever sum shall be collected on the said claim, applies to a sum awarded to them by the Court of Commissioners of Alabama Claims, established by the Act of June 23, 1874, ch. 459; and is not affected by section 18 of that Act, providing that that court should allow, out of the amount awarded on any claim, reasonable compensation to the counselor and attorney for the claimant, and issue a warrant therefor; and that all other liens or assignments, either absolute or conditional, for past or future services about any claim, made or to be made before judgment in that court, should be void. [No. 160.] Argued Dec. 14, 1883. Decided Jan. 7, 1884. the court: This action was brought in the Superior Court of the City of New York, by the members of the firm of Lawson & Walker against the members of the firm of Bachman Brothers, to recover compensation for services performed under a written agreement between them, dated April 25, 1871, which recited that the defendants had employed, and by power of attorney of the same date had authorized, the plaintiffs to collect their claim arising out of the capture of the ship Commonwealth and her cargo by the armed rebel cruiser, The Florida; and by which the plaintiffs agreed to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time; and the defendants, in consideration of the premises, agreed to allow and pay to the plaintiffs a compensation equal to twenty-five per cent of whatever sum shall be collected on the said claim. By the power of attorney, referred to in this agreement, the defendants appointed the plaintiffs their attorneys to prosecute and collect the claim by such lawful proceedings and means as to them might appear expedient but at their own cost and charge, and authorized them to receive on the defendants' account whatever *Head note by Mr. Justice GRAY. NOTE.-Attorney's compensation contingent on success or from proceeds of suit; a fixed sum or a percentage; purchase of interest in the suit or subject of litigation by attorney. See note to McMicken v. Perin, 59 U. S., XV., 504. The plaintiffs, who were average adjusters, filed an abstract of the claim in the department of state, and in accordance with the instructions issued by that department, and from papers and information furnished by the defendants, prepared a memorial giving a full history of the circumstances relating to the claim; and afterwards went to Washington several times about this and other like claims; and after the passage of the Act of Congress of June 23, 1874, ch. 489, establishing the Court of Commissioners of Alabama Claims, prepared and sent to the defendants for signature a petition to be presented to that court which, although repeatedly asked for, was never returned; and the defendants, after endeavoring to induce the plaintiffs to release them from the agreement, employed an attorney at law to prosecute their claim before that court, which he did, and recovered thereon the sum of $3,034.16. The plaintiffs brought this action to recover twenty-five per cent of this sum, less $125, the estimated expense which they would have incurred had they proceeded and recovered the money. The defendants, besides other defenses presenting no federal question, contended that the agreement sued on had been annulled and rescinded by the Act of 1874 [18 Stat. at L., 245]. The Judge presiding at the trial overruled the objection, and the jury returned a verdict for the plaintiffs, on which judgment was rendered. The defendants appealed to the General Term of the Superior Court, at which the judgment was reversed and a new trial ordered. The plaintiffs appealed to the Court of Appeals, which reversed the judgment of the General Term, and remitted the case to the Superior Court for further proceedings. See, 81 Ñ. Y., 616. The Superior Court thereupon entered judgment in accordance with the verdict, and the defendants sued out this writ of error. In support of the writ of error it was contended that the agreement sued on had relation solely to the claim which existed at its date; that that claim was extinguished by the operation of the Treaty of Washington, the Geneva Award, and the payment by Great Britain to the United States of the sum awarded; and that the claim successfully prosecuted under the Act of Congress and before the court of commissioners was a new claim, created by that Act, and after the making of the agreement; or, if it could be treated in any respect as the same claim, was so changed in its character and circumstances that the agreement had no applica tion to it. But, as was said by Mr. Justice Story, delivering the judgment of this court, in a similar case: "The right to indemnity for an unjust capture, whether against the captors or the Sovereign, whether remediable in his own courts, or by his own extraordinary interposition and grants upon private petition, or upon public negotiation, is a right attached to the ownership of the property itself." "The very ground of the Treaty is, that the municipal remedy is in- | and reasonable, as compensation for the services adequate; and that the party has a right to com- rendered the claimant in prosecuting such pensation for illegal captures, by an appeal to claims, which allowance shall be entered as part the justice of the government." "The right to of the judgment in such case, and shall be made compensation, in the eye of the Treaty, was just specifically payable as a part of said judgment as perfect, though the remedy was merely by for indemnification to the attorney or counsel, petition, as the right to compensation for an il- or both, to whom the same shall be adjudged; legal conversion of property, in a municipal and a warrant shall issue from the Treasury, court of justice." "It recognized an existing in favor of the person to whom such allowance right to compensation, in the aggrieved parties, shall be made respectively, which shall be in and did not, in the most remote degree, turn full compensation to the counsel or attorney for upon the notion of a donation or gratuity. It prosecuting such claim; and all other liens upwas demanded by our government as matter of on, or assignments, sales, transfers, either absoright, and as such it was granted by Spain.' ." lute or conditional, for services rendered or to Comegys v. Vasse, 1 Pet., 193, 215-217. be rendered about any claim or part or parcel thereof provided for in this bill, heretofore or hereafter made or done before such judgment is awarded and the warrant issued therefor, shall be absolutely null and void and of none effect." 18 Stat. at L., 249. The claim established before the Court of Commissioners of Alabama Claims was manifestly the very claim contemplated by the agreement in suit. It is described in that agreement as a claim arising out of the capture of the ship Commonwealth and her cargo, by the armed rebel cruiser, The Florida. The agreement bears date only a fortnight before the Treaty of Washington was made and concluded, by which it was agreed between the United States and Great Britain that all claims growing out of acts committed by The Alabama and other vessels should be referred to a tribunal of arbitration. The Florida was one of the vessels which were determined by the Geneva Award to have put out from British ports through neglect of international duty on the part of Great Britain, and compensation for the wrongs done by which to these defendants and others was included in the sum awarded in favor of the United States. The claim of the defendants was one for which compensation was justly due to them from Great Britain; was demanded by the United States from Great Britain as a matter of right; as such was awarded to be paid and was paid by Great Britain to the United States in accordance with the provisions of the Treaty between the two Nations, and with the determination of the tribunal of arbitration created by that Treaty; and was paid by the United States to the defendants, out of the money received from Great Britain, pursuant to the directions of the Act of Congress, and to the decision of the court of commissioners established by that Act. The defendants were the original owners of the claim, and the money was granted and paid by the United States to them as such The money so demanded and received by the United States from Great Britain, and paid by the Unit It was argued that the Act, by prescribing a mode of proceeding for collecting the claim which required the services of attorneys at law, rendered the agreement in question inoperative, because the plaintiffs, not being such attorneys, were incapable of performing it. But the pow er of attorney executed at the same time as the agreement, and referred to therein, authorized the plaintiffs to use all such lawful means and proceedings, and to employ such attorneys, as they might think fit, for the prosecution of the claim. It was further contended that the section above quoted rendered illegal and void all agreements, made before judgment, to pay compensation for services about any such claim. But the prohibition is clearly limited to liens, sales or assignments which create a right of property in the claim itself, and does not extend to a mere personal agreement to pay as compensation for such services a sum of money equal to a certain proportion of the amount which may be recovered. The other points made in argument present no federal question and, therefore, afford no ground upon which this court can revise the judgment of the state court. Murdock v. Memphis, 20 Wall., 590 [87 U. S., XXII., 429]. Judgment affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. ed States to the defendants, was money collected A. U. WYMAN, Treasurer of the UNITED on the claim described in the agreement. Comegys v. Vasse, above cited; Phelps v. McDonald, STATES, Pl. in Err., v. 99 U. S., 298 [XXV., 473]; Leonard v. Nye, UNITED STATES, ex rel. EMINEL P. HAL125 Mass., 455. The other points relied on in support of the writ of error, so far as they present any federal question, are based upon the following provisions of the Act of 1874: "Sec. 18. In case any judgment is rendered by said court for indemnity for any loss or claim herein before mentioned against the United States; at the time of the giving of the judgment the court shall, upon motion of the attorney or counsel for the claimant, allow out of the amount thereby awarded, such reasonable counsel and attorney fees, to the counsel and attorney employed by the claimant or claimants respectively, as the court shall determine is just STEAD, Admr., etc. (See S. C., Reporter's ed., 654-659). Assets, what are-debts due from United States— mandamus to U. 8. Treasurer. *1. For the purpose of founding administration, a simple contract debt is assets where the debtor resides, even if a bill of exchange or promissory note has been given for it, and without regard to the place where the bill or note is found or payable. 2. Debts due from the United States are not local assets at the seat of Government only. 3. The Treasurer of the United States cannot be Head notes by Mr. Justice GRAY. compelled by writ of mandamus to pay to an administrator appointed in the District of Columbia, of an inhabitant of one of the States of the Union, the amount of a draft payable to the intestate at the Treasury,out of an appropriation made by Congress, and held by such administrator. [No. 892.] was rightly taken out in the District of Columbia, nor upon the question whether an administrator appointed elsewhere could sue within the District upon debts payable here, but upon the question whether a payment by the United States to an administrator already or hereafter Argued Dec. 13, 14, 1883. Decided Jan. 7, 1884. appointed in Tennessee, the domicil of the de ceased, would be a good discharge of the debts, IN ERROR to the Supreme Court of the Dis-payment of which is now sought to be enforced. trict Columbia. The history and facts of the case appear in the opinion of the court. Mr. Wm. A. Maury, Asst. Atty-Gen., for plaintiff in error. Messrs. A. L. Merriman and J. Walter Cooksey, for defendant in error. Mr. Justice Gray delivered the opinion of the court: This is a writ of error sued out by the Treasurer of the United States, to reverse a judgment of the Supreme Court of the District of Columbia, ordering a peremptory writ of mandamus to issue against him upon the petition of Eminel P. Halstead, as administrator, appointed in the District, of the estates of John N. Pulliam and John J. Pulliam, each of whom was an inhabitant of the State of Tennessee at the time of his death, and as trustee appointed by that court, to compel the payment to him of the amount of certain drafts hereinafter mentioned. The petition alleged and the answer admitted these facts: on June 17, 1882, Wyman, then and still Treasurer of the United States, residing and transacting the business of his office at Washington in the District of Columbia, issued, under and by virtue of the Act of Congress of May 1, 1882, ch. 114 [22 Stat. at L., 688], making appropriations therefor, three drafts payable at the Treasury in Washington, one for $3,020, payable to John J. Pulliam, executor of John N. Pulliam or order, and two for $1,223 and $545 respectively, payable to John J. Pulliam or order; and the three drafts were delivered to Halstead on account of the payees. John J. Pulliam afterwards died, and Halstead, having the drafts in his possession, applied for and, on August 2, 1882, obtained letters of administration in the District of Columbia upon the several estates of the two Pulliams. In September, 1882, Benjamin U. Keyser filed a bill on the equity side of the Supreme Court of the District against Halstead and others, claiming an equitable interest in these drafts or the proceeds thereof, and in March, 1883, obtained a decree directing Halstead, as administrator as aforesaid, and as trustee for that purpose, to indorse and collect the drafts, and to make distribution of the proceeds. In obedience to this decree, Halstead, on April 19, 1883, indorsed the drafts, and demanded payment thereof of Wyman, as Treasurer of the United States; but he, although having sufficient money in his possession, appropriated by Congress, refused to pay them without the indorsements of administrators appointed in the State of Tennessee, the domicil of the two deceased persons. The opinions delivered in the court below, upon granting the writ of mandamus, are reported in 11 Washington Law Reporter, 370377, 385-394. The determination of this case does not depend upon the question whether administration 109 U. S. U. S., Book 27. The general rule of law is well settled, that for the purpose of founding administration all simple contract debts are assets at the domicil of the debtor; and that the locality of such a debt for this purpose is not affected by a bill of exchange or promissory note having been given for it, because the bill or note does not alter the nature of the debt, but is merely evidence of it and, therefore, the debt is assets where the debtor lives, without regard to the place where the instrument is found or payable. Yeomans v. Bradshaw, Carth., 373; S. C., Comb., 392; Holt, 42; 3 Salk., 70, 164; Abinger, C. B., in AttyGen. v. Bouwens, 4 M. & W., 171, 191; 8. C., 1 Horn & Hurl., 319, 324; Parke, B. in Mondel v. Steele, 1 Dowl. (N. S.), 155, 157; Slocumb v. Sanford, 2 Conn., 533; Chapman v. Fish, 6 Hill, 554; Owen v. Miller, 10 Ohio St., 136; Pinney v. McGregory, 102 Mass., 186. An administrator is of course obliged to demand payment at the place where the bill or note is payable; and he may find difficulty, unless it is payable to bearer, in suing upon it in a place in which he has not taken out administration. But payment to the administrator appointed in the State in which the intestate had his domicil at the time of his death, whether made within or without that State, is good against any administrator appointed elsewhere. Wilkins v. Ellett, 9 Wall., 740 [76 U. S., XIX., 586], and [ante,718]. As was said by Mr. Justice Story, in delivering the judgment of this court in Vaughan v. Northup, 15 Pet., 1, 6, and repeated by Mr. Justice McLean, in delivering judgment in Mackey v. Cox, 18 How., 100, 105 [59 U. S., XV., 299, 301]: "The debts due from the Government of the United States have no locality at the seat of Government. The United States, in their sovereign capacity, have no particular place of domicil, but possess, in contemplation of law, an ubiquity throughout the Union; and the debts due by them are not to be treated like the debts of a private debtor, which constitute local assets in his own domicil. On the contrary, the administrator of a creditor of the Government, duly appointed in the State where he was domiciled at the time of his death, has full authority to receive payment and give a full discharge of the debt due to his intestate, in any place where the Government may choose to pay it." In Vaughan v. Northup, an administrator, appointed in Kentucky, of an inhabitant of that State, who died there intestate and childless, received a sum of money from the Treasury of the United States, for military services rendered by the intestate during the Revolutionary War; and a bill in equity, filed against him in the District of Columbia by the next of kin, for their distributive shares of the money, was dismissed for want of jurisdiction, because an administrator, appointed in and deriving his authority from one State, was not liable to be 67 1069 sued elsewhere, in his official character, for assets lawfully received by him under and in virtue of his original letters of administration. ubiquity throughout the Union," may in their discretion, exercised through the appropriate officers, pay a debt, due to the estate of a deceased person, either to the administrator appointed in the State of his domicil, or to an ancillary administrator duly appointed in the District of Columbia; and the exercise of their discretion in this regard cannot be controlled by writ of mandamus. In that case, as in this, it was argued by counsel that the assets in question were not collected in the State of the intestate's domicil, but were received as a debt due from the government at the Treasury Department at Washington, and so constituted local assets within this District. It was in declining to It is hardly necessary to mention the proceedyield to that argument, that the court laid down ings in equity upon the suit of Keyser. Though the general principles above quoted, and added: referred to in the petition for the writ of man"If any other doctrine were to be recognized, damus in the general terms stated at the beginthe consequence would be, that before the per- ning of this opinion, they have not been printed sonal representative of any deceased creditor, in full in the record, as required by the Eighth belonging to any State in the Union, would be Rule. The reason doubtless is, that both in the entitled to receive payment of any debt due by opinion of the court below, and in the arguthe Government, he would be compellable to take ment in this court, while it is said that the adout letters of administration in this District for ministrator, appointed in Tennessee, of the esthe due administration of such assets. Such a tate of John N. Pulliam was made a defendant doctrine has never yet been sanctioned by any in that suit, and the bill taken for confessed practice of the Government; and it would be against him, it is admitted that he was not full of public as well as private inconvenience. amenable as administrator to suit in this DisIt has not, in our judgment, any just founda-trict, and that neither he nor any administration in the principles of law. We think that Northup, under the letters of administration taken out in Kentucky, was fully authorized to receive the debt due from the Government to his intestate; that the moneys so received constituted assets under that administration, for which he was accountable to the proper tribunals in Kentucky; and that distribution thereof might have been and should have been sought there, in the same manner as of any other debts due to the intestate in Kentucky." The Act of June 24, 1812, ch. 106, sec. 11, since omitted in the Revision in 1874 of the Statutes of the District, by which executors or tor hereafter appointed in Tennessee, of the estate of John J. Pulliam, could be concluded by that decree. The result is, that the judgment of the Supreme Court of the District of Columbia, awarding a peremptory writ of mandamus must be reversed and the case remanded to that court, with direc tions to dismiss the petition. True copy. Test: James H. McKenney, Clerk, Sup. Court, U.S. Cited-110 U. S., 45; 111 U. S., 146, 147. administrators appointed in any State or Terri- POTOMAC STEAMBOAT COMPANY ET tory were permitted to maintain any suit or action, or to prosecute and recover any claim, in the District of Columbia, as if they had been AL., Appts., v. appointed here, was referred to in the opinion,|UPPER POTOMAC STEAMBOAT COM not as the principal ground of decision, but as affording no support for the bill, and as fortify In the case at bar, neither the fact that the drafts were made payable at the Treasury of COMPANY. (See S. C., Reporter's ed., 672–702.) Lands in Washington City-title to riparian proprietor-title of United States-parol proof to vary agreement-certificates and plats of land-wharves on the Potomac. the United States in the City of Washington, INLAND AND SEABOARD COASTING nor the deposit, pursuant to section 307 of the Revised Statutes, of the money represented by the drafts in the Treasury to the credit of the payees, affected the character or the locality of the debts. The deposit of the money gave the payees or their representatives no property in or lien upon it. The obligation of the United States was not to surrender to them any specific sums of money, but to pay to them sums equal to the amounts credited to them, as in the case of any other liquidated debt. The creditors could not, indeed, insist upon payment without first demanding it at the Treasury. But the United States, in their sovereign capacity, having no domicil in any one part of the Union rather than 2. The United States thereby became the riparian in any other, do not, by establishing at the nation-proprietor, and succeeded to all the riparian rights al capital a Treasury for the transaction of the of Young, by becoming the owner in fee simple ab principal business of the financial department the river; and it owned the right of wharfage ap solute of Water Street, a strip of land that adjoined of the Government, and making their money purtenant to it, although the land was granted for s obligations payable there, confine their presence or their powers to this spot. The United States, having, in the phrase of Mr. Justice Story, “an 1. The transactions between Young and the United States concerning the site of the City of Washington, were equivalent to a conveyance by him to the and a conveyance back by the United States to him, United States, in fee simple,of all his land described, of a certain square; leaving in the United States an estate, in fee simple, in the strip of land designated as Water Street. street. 3. The United States held its title to the land over which such street was laid out, for its own use, and not in trust for any person nor for any purpose, and |