become payable, which, in fact, was not predi- | of payment. It is simply the application to the cated upon that default, but rested solely on the non-payment of the coupons due October 1, 1873.

There is nothing in the record to show that any one of the bondholders, who had funded his coupons, claimed the right to rescind the funding agreements, or that any step to do so had been taken or authorized.

This right cannot be regarded as other than important and valuable. Its denial in the present case was a substantial and serious wrong. This is manifest from the bare statement that the decree required payment, within twenty days, of $2,500,000, which we find was not due, as a condition of preventing the sale of property, which, it is admitted, was worth more than this debt, and which, according to the testimony in the case, was earning more than enough to pay the current interest on this mortgage. The receiver states the net earnings for the year 1874 at $330,615.75, and adds, speaking July 31, 1875, that "The present year, like the preceding, is of almost unexampled depression in most branches of business upon which the consumption of coal depends," the transportation of which was the main traffic of the road; and adds that he believes, on the reasons he states, that "It is practicable, in a year of fair prosperity, to increase the earnings from fifty to eighty per cent over those of 1874." Upon such a showing, it is immaterial to say that the Railroad Company was commercially insolvent, not being able to pay all its obligations as they matured; for the fact, if admitted, would not affect its legal or equitable rights, much less be allowed to deprive its other creditors, junior incumbrancers and lienholders, of their right to prevent a sale and sacrifice of the property by paying the comparatively small amount of the interest, justly due, upon the first mortgage bonds, and thus preserving their own estates and interests as well as those of the mortgagor.

case of a sale by the trustees under the power of the practice of courts of equity in cases of judicial sales upon foreclosure. In either case the right of the mortgagee to redeem, and thus prevent the sale, is preserved, on payment, not of the unmatured principal sum of the debt, but merely of the interest then actually due and in arrears; the very right which, by the decree It is true that, after the filing of the bill and now in question, was denied. If authority is the appointment of a receiver, the Railroad needed on such a proposition, it will be found Company ceased to pay interest upon its securi-in Holden v. Gilbert, 7 Paige Ch., 208, and Ol ties. That was but the natural consequence cott v. Bynum, 17 Wall., 62 [84 U. S., XXI., of the litigation; and in taking a decree for 575]. foreclosure and sale, it might have been in strict accordance with the equitable rights of bondholders who had funded their coupons, to have rescinded the funding agreements, as incapable of execution. But the legal effect of this would have been merely to find as the true amount of the mortgage debt then due, necessary to be paid to avoid a sale, the whole amount of interest unpaid on all the coupons. It would not, however, have put the Company in default as to the funded coupons from the beginning, nor deprived it of the benefit of the waiver of that default, arising from the fact of funding. It would have canceled the arrangement only as and from the date of the decree itself, without impairing its antecedent effect by retroaction. It is true, that where a mortgage has been given to secure a debt payable in installments, and a bill has been filed for foreclosure and sale, upon a default as to one, the decree may require payment of all installments then due, though maturing since the institution of the suit; but that principle does not suffice to bring the case of the appellees within the meaning of the 8th article of the conditions of the mortgage, so as to justify the decree requiring payment of the principal of the debt, as presently due. For by the terms of that provision, the entire debt does not become absolutely due, on the default of the Company, continued for six months, without the consent of the holder, to pay an interest coupon; but only at the election of the trustees, as declared by them and notified to the mortgagor. And the forfeiture of the time of payment to be established in a given case, must stand or fall upon the fact of such declaration and notice, as it may be justified or not by the circumstances existing when they were made. It cannot be supported by subsequent occurrences. It follows, therefore, that the claim in support of the finding that the whole debt had become due, must rest exclusively upon the alleged default of October 1, 1873, and that, as we have seen, is not sufficient. It does not affect this conclusion, that by the terms of the 6th article of the conditions of the mortgage, it is provided that upon the exercise of the power thereby conferred, resulting in a sale of the mortgaged premises, for a single default in the payment of interest, it may be one coupon merely, the property is to be sold as an entirety and free of the incumbrance of the mortgage, so as to pass all the title, both of mortgagor and mortgagee; and that the proceeds of the sale are to be applied, after payment of overdue interest, to the payment of the principal of the debt, though not yet due. This provision does not, either in terms or in effect, make the whole debt due before the stipulated day

The second assignment of error which we have noted, is, in our opinion, also well founded.

The 8th article of the conditions of the mortgage, which relates to this subject, contains the provision that, after the principal of the bonds has been declared by the trustees to have become due, by reason of the default therein described, and the mortgagor notified thereof, the trustees, "Upon the written request of the holders of a majority of the said bonds then outstanding, shall proceed to collect both principal and interest of all such bonds outstanding, by foreclosure and sale of said property, or otherwise, as herein provided."

It is contended on behalf of the appellees, that without the last clause the trustees have the sole right to act according to their discretion and upon their own motion, in declaring the principal sum due on account of the default; and that upon such declaration and notice by the trustees, the whole sum becomes due irrevocably for all the purposes of the mortgage; so that thereafter the trustees, at their option, may file a bill for foreclosure and sale, or may intervene, in case such a bill is filed by

any bondholder, and thereupon the amount decreed must be the amount thus declared to be, and hence, actually due; and that the office of the clause in reference to the written request of a majority of the bondholders, is merely to make the obligation of the trustees imperative, instead of optional.

We cannot agree to that construction of the provision. The whole article must be taken together. It is, in fact, a unit, and is directed to a single end. And the nature of the provision and the character of its object must be taken into consideration as furnishing the rule of its interpretation. It is an agreement which the parties were at liberty to make. There is nothing in it illegal or contrary to public policy. And while it is in the nature of a forfeiture, it is one against which, when it has taken place according to the fair meaning of the parties, courts of equity will not relieve. It was so held in Noyes v. Clark, 7 Paige, Ch., 179; Noonan v. Lee, 2 Black, 509 [67 U. S., XVII., 281]; Olcott v. Bynum [supra].

ment that may, in their opinion, prove to be a sacrifice; and this becomes especially important when the present value of the security is insufficient to prepay the incumbrance, but contains the solid promise of future indemnity as an investment. It is that interest, we think, that dictated the clause in question, and can be satisfied only by the construction which secures to the majority of the bondholders the right to veto the proceeding of the trustees.

Indeed, the other construction contended for, which gives to the majority only the right to make the obligation of the trustees to proceed, imperative, renders it nugatory. For, upon that supposition, the debt having become fully due, by the declaration and notice of the trustees, for all the purposes of the mortgage, if they should delay or refuse to file a bill for foreclosure and sale, it would still be in the power of a single bondholder to proceed for himself and associates directly for the same object, and to procure the same relief.

It is, therefore, our opinion that even had the trustees rightfully declared the principal sum of the mortgage debt due, and given the proper notice thereof, nevertheless, the foundation for proceeding to foreclose for that cause, and of the decree requiring payment of that amount would fail, without proof that the bill had been filed for that purpose, upon the written request of the holders of a majority of the bonds then outstanding. It is not disputed that no such proof is to be found in this record.

Other errors than those already discussed have been assigned upon both appeals, which, as in the further progress of the cause they may not arise again, we have not considered and do not therefore pass upon.

For the reasons already given, we reverse both decrees appealed from and remand the cause, with instructions to proceed in conformity with this opinion.

Mr. Chief Justice Waite dissenting:

The stipulation, nevertheless, is in the nature of a penalty, and may be regarded as stricti juris, to be construed fairly and reasonably, according to the meaning of the parties, but leaning, if need be, in any case of ambiguity, in favor of the debtor. And the construction, in the present instance at least, which favors him, does not discriminate against the bondholders as a class, but rather between the interests of the whole number, represented by the trustees and controlled by a majority, and those of a single creditor, or a minority, associated in the like case, pursuing their remedy, as individuals. For while, as we have seen, one or any number of bondholders may prosecute a bill to foreclose a mortgage, upon default as to payment of a single coupon, or the trustees may intervene on behalf of all for the same purpose, because the failure to pay a single installment of interest is made a breach of the condition of the mortgage; yet it is apparent, that one purpose at least of the clause in question was to protect the bondholders as a class against the views of individuals and combinations of individuals, being a minority, pursuing separate interests. In declaring the principal sum due before the date fixed by the credit, upon a default in the payment of interest, the trustee is acting for the whole number of bondholders, and the provision that subjects his action in enforcing the stipulation to the wishes of a majority, is meant, as we think, for the protection of the class. Many cases may be mentioned to illustrate the importance in their interests of such a control, rather than to put it in the power of one or a minority to require all to accept what the majority might consider to be a premature and less valuable satisfaction for their existing security. The larger number might think it to their advantage even to defer the collection of their overdue interest, much less not to antici- This default having happened, and having pate the payment of the principal, even when continued more than six months without the the security was ample to meet both; for they consent of the holders of the coupons, by the might esteem the ultimate investment higher express terms of the 8th clause, the principal of than present payment. While they could not and all the bonds secured by the mortgage became ought not to prevent others, even a single indi- immediately due and payable. If after that, the vidual, from exacting the promptest payment of holders of a majority of the outstanding bonds what is due and may be important as current had requested the trustees in writing to foreincome, by legal process, they may, neverthe- close the mortgage, it would have become the less, rightfully object to an anticipation of pay-imperative duty of the trustees to institute the

I am unable to agree to the judgment in this case. In my opinion default had been made in the payment of the interest on some of the bonds within the meaning of the 8th clause of the mortgage. The Company having given notice that the coupons due October 1, 1873, would not be paid if presented, no presentation was necessary in order to create the default. This notice was a waiver of a presentation in form. Coupon-holders were in effect told it was useless to make a demand, because if made it would not be met. Confessedly, this default as to the coupons on $698,000 of the bonds continued more than six months. Holders of bonds to this amount declined to enter into the scheme for extension. They kept their coupons, hoping some plan might be devised for payment, but retaining all their rights under the mort gage, if their hopes were not realized.

necessary proceedings for that purpose. But if APPEALS from the Circuit Court of the Unit

ed States for the Northern District of Illi

Petition for rehearing.

The history and facts of the case appear in the opinion of the court. See, also, the opinion of this court on the first hearing of the case, ante, 47, and the opinion on the rehearing, post, 64. Messrs. Edicin Walker and R. Biddle Roberts, for appellants.

Messrs. Charles B. Lawrence, Henry Crawford and J. D. Campbell, for appellees. Mr. Melville W. Fuller, for Fosdick and Fish,

no such request was made, it seems to me that the trustees were not precluded from commenc-nois. ing such proceedings on their own motion, in case the safety of the trust made it necessary. It is possible, if a majority of the bondholders had, in an appropriate way, interfered to prevent the trustees from going on, some relief might have been afforded them, but when all came in and availed themselves of what had been done, the Corporation was in no position to defend, because a request had not been formally made in advance. As to the Corporation, the principal of the bonds became due and pay-trustees, appellees. able when a default occurred which continued the requisite length of time. Whether a foreclosure should be had because of the default, rested alone with the bondholders and trustees. The provision in the mortgage for the written Since the announcement of our former opinrequest was, as it seems to me, not for the pro-ion, the appellees, having filed a petition for retection of the Company, but the bondholders. hearing, have suggested that the decree brought If the bondholders are satisfied with what the up by this appeal is not what it is recited to be trustees have done, the Corporation is in no in the prayer for appeal in the circuit court, viz.: condition to complain. the decree confirming the sale of the mortgaged property under that of foreclosure and sale, but one rendered subsequently thereto, and merely in execution of it; and that it is, therefore, not the subject of an appeal, and claim that the present appeal should be dismissed for want of jurisdiction.

That the trustees were justified in commencing proceedings on their own motion, seems to me clear. Some of the bondholders, having coupons and bonds, as to which default had been made, began a suit for foreclosure in a state court, and secured the appointment of a receiver. The Company was very much embarrassed financially, and so long as the receivership continued, could do nothing to extricate itself from its difficulties. It was a necessity, therefore, for the trustees to interfere. When they did, the Company did not relieve itself from the consequences of its default in the payment of coupons on the $698,000 of bonds. All the bondholders seem to have been satisfied with what was done, and they united with the trustees in pressing the foreclosure.

Under these circumstances, in my opinion, the court properly treated the principal of all the bonds as due, and decreed accordingly.

I am authorized to say that Mr. Justice Harlan concurs in this dissent.

WILLIAM R. FOSDICK, JAMES D. FISH,
FREDERICK W. HUIDEKOPER, THOM-
AS W. SHANNON AND JOHN M. DEN-
NISON

(See S. C., 16 Otto, 80-82.)
Rehearing, when granted.

Upon a petition for rehearing made on the ground that the decree brought up by the appeal is not what it is recited to be in the prayer for appeal, but one rendered subsequent thereto and merely in execution of it, this court, to enable the parties to present whatever questions arise upon the record as it is, or upon a complete record when supplied, may grant a rebearing.

[No. 173.] Decided May 8, 1882.

Mr. Justice Matthews delivered the opinion of the court:

The appeal prayed for and allowed in the circuit court is recited in the petition therefor filed March 26, 1879, to be as follows:

"From the decree entered April 12, 1877, confirming the report of the sale of the property of the defendant Railroad Company;

From the decree of April 16, 1877, ordering the delivery of the deed and possession of the property to the purchasers, Frederick W. Huidekoper, Thomas W. Shannon and John M. Dennison;

From the decree entered in said cause on the 19th day of November, 1877, in favor of Frederick W. Huidekoper, Thomas W. Shannon and John M. Dennison, and against the said Chicago, Danville and Vincennes Railroad Company, for the sum of $1,808,646.46."

The two decrees last named, of April 16, 1877, and of November 19, 1877, do not appear in the record.

An examination of the terms of the decree of April 12, 1877, shows that it is a decree, conof the purchasers, Huidekoper, Shannon and firming the report of the master, upon a petition Dennison, asking that their bid may be satisfied by a surrender of bonds and coupons without further cash payment and, upon that surrender, for a conveyance of the title to the property, and to be let into possession. What prior action of the court, upon a report of the sale, had taken place, the transcript of the record before us does not disclose. Counsel for the appellees state that there was, in fact, a prior decree, confirming the sale, rendered on February 26, 1877, from which no appeal was perfected; and produce in support of their statement what is called a supplemental transcript of the record, containing such a decree. This, however, we cannot at present consider or act upon, further than to say that, in view of the suggestions made and to enable the parties to present whatever questions arise upon the record as it is now before us, or upon a complete record, when supplied, upon the appeal

prayed for and perfected on March 26, 1879, the | a removal when there could be a final determiapplication for a rehearing is granted; and the nation of the controversy, so far as it concerned decree of this court rendered at the present Term, them, without the presence of the other defend80 far only as it reverses any of the decrees em-ants, we have now considered the matter in that braced in this appeal, is to that extent and for that aspect. purpose set aside.

While repeals by implication are not favored, it is well settled that where two Acts are not in James H. McKenney, Clerk, Sup. Court, U. S. all respects repugnant, if the later Act covers

The order of the Circuit Court, remanding the cause to the State Court, is affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-106 U. S., 601; 107 U. S., 538; 110 U. S., 60; 18 N. W. Rep., 644; 20 N. W. Rep., 785, 786; 113 U. S., 597.

ASA C. CALL, Appt.,

HENRY H. PALMER.

(See S. C., 16 Otto, 39.)

Construction of Rule 32-motions under.

1. Rule 32 applies only to cases which have been remanded by a circuit court to a state court, or dismissed under the authority of section 5 of the Act of March 3, 1875, ch. 137.

2. Motions under this rule should be accompanied by an agreed statement of the case, or by such extracts from the record as will show that the case is one to which the rule is applicable. [No. 1009.]

Motion submitted Oct. 11, 1882. Decided Oct. 16,

1882.

APPEAL from the Circuit Court of the United

States for the District of Iowa.
Motion to advance under Rule 32.
Mr. J. H. Call, for appellant.
No counsel appeared for appellee.

of the United States, if the necessary citizenship | there was in the suit such a separate controversy of the parties did not exist. In 1875 the sub- as would have entitled him to a removal if the ject of removals seems to have been brought law had been otherwise. specially to the attention of Congress, and the Act [18 Stat. at L., 470], of that year passed. Many important new provisions were introduced, and the new Act was evidently intended as a substitute for much that had been enacted before. Removals of suits arising under the Constitution and laws of the United States were authorized without regard to the citizenship of the parties, and instead of confining the privileges of removal to defendants or citizens of States other than that in which the suit was brought, either party was allowed to move in that behalf. Instead of requiring the petition for removal to be filed in some cases when the defendant entered his appearance, and in others at any time before trial or final hearing, all petitions to which that Act applied were to be presented at or before the term at which the cause could be first tried. Provision for citizens and subjects of foreign States must have been in the mind of Congress at the time, because in the 1st clause of the 2d section, which relates to the removal of a controversy that is not separable, they are specially named. In the 2d clause, which relates to separable controversies, they are not and, as in the local prejudice subdivision of section 639, that privilege is confined to citizens of the United States. In the Law of 1866 an alien defendant, having a separable controversy, could remove. When that law was extended in 1867 to cases of local prejudice, only citizens were included in the extension. In the Act of 1875 the removal in cases of separable controversies was not confined to defendants, but either party could apply. Congress then, as it seems to us, manifested its intention to ex-ion of the court: clude aliens from the privileges of such a removal, just as it did in 1867, in cases of local prejudice. The whole subject was evidently up for consideration. The 1st and 2d subdivisions of section 639 were thoroughly revised and radically modified. There cannot be a shadow of doubt that, except as to aliens in the 2d subdivision, both these subdivisions were repealed, and we cannot believe, if Congress had intended to continue in force that part of the 2d subdivision which allowed an alien defendant to remove a cause, so far as it related to him, and gave his adversary no corresponding right, it would have been left to inference alone. So thorough a revision implies, as we think, an intention to make the new law a substitute for all that those subdivisions contained. The last clause relating to separate controversies needed only the addition of the word alien to make it cover everything in the 2d subdivision. Had it been added, the law would have been uniform, and allowed removals by both parties in all cases where the right was dependent on citizenship. With it out, if we hold that the old law is unrepealed, an alien defendant will be allowed to remove his separate controversy as against a citizen, while the citizen will not have the same privilege against him. This, we are satisfied, it was not the intention of Congress to do. It follows that the whole of the 2d subdivision of section 639 was repealed by the Act of 1875, and that the cause was not removable on the separate petition of the alien. This makes it unnecessary to consider whether

Mr. Chief Justice Waite delivered the opin

This motion is denied. Rule 32 applies only to cases which have been remanded by a circuit court to a state court, or dismissed, under the authority of section 5 of the Act of March 3, 1875 [18 Stat. at L., 470]. This is an appeal from a decree on the merits in a suit removed from a state court to the circuit court. The record shows that a motion to remand was denied, and that the cause was regularly heard and decided.

Motions under this rule should be accompanied by an agreed statement of the case, or by such extracts from the record as will show that the case is one to which the rule is applicable. True copy. Test:

James H. McKenney, Clerk, Sup. Court, U.8.

JOHN W. GOSLING, Appt.,

v.

JOHN ROBERTS.

(See S. C., 16 Otto, 39-47.)

Void letters patent-infringement. *The first claim of re-issued letters patent No.5644, granted to John W. Gosling, November 4, 1873, for an "Improvement in step covers and wheel fenders for carriages," the original patent having been granted to him February 26, 1867, and the re-issue applied for June 24, 1873, namely, "In combination with the step D and the door C, the plate E, attached to the door, to operate as a step cover when the door *Head notes by Mr. Justice BLATCHFORD.