It is certain Chamberlain could not thereafter manage the road under his lease, for he was "Perpetually enjoined and restrained from using, managing, running, controlling, or meddling with said railroad or the rolling stock, personal property, or any of its appurtenances or franchises, or anything connected therewith, under or by virtue of said lease.' The decree did not authorize Cleveland to operate the road, or in any way interfere with it by appointing a receiver or otherwise. Who was to operate it? Manifestly the Railroad Company and no one else. He was enjoined from managing or interfering with the road, not as against Cleveland, nor until the tolls of the road should satisfy Cleveland's judgment, but perpetually, forever. And no party or person was appointed to this duty. It is the special boast of a court of equity that it does complete justice, and not by halves; that its decree is not only settled rights as between plaintiff and defendants, but as between the defendants themselves. The reason given, for making all persons interested in the subject-matter parties defendant, is that the court may by one decree adjust the right of all parties interested. This its decrees would not do, if they were not as binding among defendants in subsequent litigation between themselves, as between the plaintiffs and defendants. The cases fully established this quality of decrees in equity. Story, Eq. Pl., secs. 72, 73; Farquharson v. Seton, 5 Russ., 45; S. C., 5 Eng. Ch., 46. Farquharson v. Seton is a strong authority to show that this decree would be conclusive in any subsequent litigation upon the subject between Chamberlain and the Company. 1 Greenl. Ev., sec. 538. We are under no obligation here to show that the Cleveland decree was properly, that is, correctly, rendered. It remains in full force, and when it is offered in evidence, it cannot be attacked collaterally for even manifest, palpable error. Voorhees v. Bank of U. S., 10 Pet., 449; Huff v. Hutchinson, 14 How., 588. Both lease and judgment are void, having been given and confessed with intent in fact to hinder, delay and defraud creditors. The allegations of the bill confessed by the demurrer, are clear and conclusive on this point. A conveyance, made with a fraudulent intent as against existing creditors, may be impeached by subsequent creditors. Sexton v. Wheaton, 8 Wheat., 250; Hinde v. Longworth, 11 Wheat., 211; Reade v. Living ston, 3 Johns. Ch., 481. Mr. John W. Cary and J. M. Carlisle, for appellees: The decree in the Cleveland case is the usual decree entered in the suit of a creditor against the debtor and his fraudulent grantee, declaring the conveyance void and setting it aside; but its legal effect was only to set aside the lease and judgment as to Cleveland, the attacking creditor, leaving them unimpaired as to all other persons and for all other purposes. It is now claimed by the counsel, that the decree in this case went far beyond the scope, object and prayer of the bill, and actually vacated, anulled and set aside said lease and de cree as to all persons and for all purposes, and that they now are for all purposes as if never made. This wonderful effect is claimed as the result of the general, absolute terms used in said decree, and that said terms should have been qualified by adding thereto "as to creditors,' or "as to said Cleveland," and the correctness or incorrectness of this proposition is the question for our consideration. We therefore say: 1. That it is not competent for a court of equity, on the application of a mere judgment creditor, to set aside, vacate or annul a conveyance made or judgment confessed by the debtor to a third person, except as far as the judgment debtor is concerned; that it cannot, in such suit, vacate them as between the parties thereto, or any other person except such judgment creditor. 2. The decree must conform to the bill and be supported by it. Ferguson v. Ferguson, 2 N. Y., 360; Crockett v. Lee, 7 Wheat., 522; Bailey v. Ryder, 10 N. Y., 363. The language of this decree was suitable, appropriate and effectual to grant the relief prayed by the bill, to remove the incumbrance out of the way of the execution; but it went no further, and the attempt to extend its effect so as to adjudicate and settle rights and interests of parties not before the court, is forced and unnatural. Henriques v. Hone, 2 Edw. Ch., 120; Lentilhon v. Moffat, 1 Edw. Ch., 451, sec. 466. It is well settled that conveyances fraudulent as to creditors are not void but voidable only, by the creditors aggrieved; yet it is the uniform practice of courts, in speaking of them in respect to the rights of creditors, to speak of them as void, and so to adjudge them; but this language in that connection only means void as to the rights of such attacking creditor. Curtis v. Price, 12 Ves., 103; Jackson v. Garnsey, 16 Johns., 189; Reichart v. Castator, 5 Binn., 109; Hare & Wall. Am. Lead. Cas., p. 45, and cases there cited. The Cleveland decree did not purport to set aside the Chamberlain lease or judgment as between Chamberlain and the La Crosse Company. Their rights were not before the court; were not involved in the pleadings; and could not, by any possibility, have been the subject of the decree of the court in that case. It was impossible for the court to have made a decree in this case between said defendants, because there were no equities between them, arising out of the pleadings and proofs between the plaintiffs and defendants. And it is only when such equities do so arise that a decree can be made between co-defendants. Chamley v. Lord Dunsany, 2 Sch. & L., 718; Conry. v. Caulfield, 2 Ball & B., 255; Elliott v. Pell, 1 Paige, 263; Blair v. Thompson, 11 Gratt., 441; 1 Story, Eq. Jur., sec. 371. The Cleveland decree is neither a bar nor an estoppel upon Chamberlain in these actions, and he is not bound in this case by it; neither can it be used as evidence in favor of the complainants. This decree was only operative between Cleveland and this defendant, and its operation between them was simply to postpone or set aside said lease and judgment, so far as they interfered with Cleveland's execution, but leaving them, in all other respects, in full force. If we were to admit the complainant, Railroad Company, to be a creditor of the La Crosse Company, and entitled to all the remedies of such creditor; still, neither it nor any other creditor, except Cleveland, could claim any benefit from said decree. Only such creditors as attack the fraudulent conveyance by legal proceedings, are entitled to share in the benefits resulting from setting it aside. The conveyance is good between the parties, and can be vacated by creditors only by legal proceedings, and such proceedings can only avail those who are parties to the record and their privies. Other creditors would not be bound, if the decision was in favor of the conveyance, and, therefore, cannot claim its benefits when adverse to it. Estoppels must be mutual. Schulze's Appeal, 1 Pa. St., 251; Schick's Appeal, 49 Pa.; see Am. Law Reg., Feb., 1866, 253. The Cleveland decree cannot be used in evidence by the Minnesota Company, and it is neither a bar nor an estoppel in favor of said Company against Chamberlain. While we admit that the record of a judg. ment is the proper evidence of its existence, and of all the legal consequences resulting from that fact, we deny that it is, or ever was, proof of the existence of the facts upon which it is founded, except as between the parties thereto, or that it is even admissible in evidence as tending to prove said facts when put in issue between other parties. 2 Sm. Lead. Cas., 424-443; 1 Greenl. Ev., 522-524; Baring v. Fanning, 1 Paine (C. C.), 549; Wood v. Stephen, 1 Serg. & R., 175; Griswold v. Jackson, 2 Edw. Ch., 468; Brown v. Wyncoop, 2 Blackf., 230; Schulze's Appeal, 1 Pa. St., 251; Schick's Appeal, Am. Law Reg., Feb., 1866, p. 253; King v. Chase, 15 N. H., 9; Outram v. Morewood, 3 East, 174; Hurst's Lessee v. McNeil, 1 Wash. (C. C.), 70. Mr. Chief Justice Chase deli vered the opin ion of the court: waukee and La Crosse Company, which we will call the La Crosse Company, subject, however, to prior incumbrances. Three years before, in September, 1857, the La Crosse Company, whose road was not then completed, entered into articles of agreement with Chamberlain, for the double purpose of insuring its completion and securing to him a large debt, alleged to be due from the Company. By this contract the road was leased to Chamberlain, in consideration that he would apply the income to the operation and extension of the road; to the payment of interest on debts of the Company; and to the payment of Chamberlain's own debt, on satisfaction of which, either by application of the income or otherwise, the road was to be restored to the Company. After the execution of this contract and in the following month, the Company confessed a judgment in his favor for $629,089.72. Afterwards, and in the same month, Cleveland recovered a judgment against the Company for $111,700.71. To enforce the satisfaction of this judgment by sale of the road and other property of the La Crosse Company, Cleveland filed his bill against that Company and Chamberlain, with whom were joined some other defendants. In this bill, according to the account given of it by the complainants in the cases now before us, Cleveland insisted that the lease to Chamberlain, and the judgment confessed in his favor, were without consideration and in fraud of creditors, and that they hindered the collection of his judgment, and he prayed that they might be declared void. The La Crosse Company and Chamberlain answered, denying all fraud, and Cleveland took issue by re-application. The court found against the respondents and decreed that the article of agreement between the La Crosse Company and Chamberlain “be, and hereby is vacated, annulled and made void. so that the same shall not be of any force and effect whatever," and that "the judgment and all executions and proceedings thereon, be, and hereby are vacated, annulled, made void and set aside, so that the same shall have no effect whatever." These two appeals have been properly argued together. They present the same controlling question, to be decided upon the same facts" and principles. That question is: were the lease made to Chamberlain and the judgment confessed in his favor by the La Crosse Railroad Company in 1857, annulled as between the parties to the lease and judgment by the decree of the District Court of the United States for the District of Wisconsin, at the January Term, 1859, or only as against Cleveland, the judgment cred itor, in whose suit against the Company and Chamberlain the decree was rendered? Some other questions are presented by the records, but they are comparatively unimpor tant. The Milwaukee and Minnesota Railroad Company, which we will call the Minnesota Company, succeeded in 1860, through the purchase of bonds for their benefit, and through their subsequent organization as a Railroad Company, in order to take and manage the property acquired by that purchase to all the property, franchises, and rights of the Mil The decree also enjoined Chamberlain from controlling or meddling with the railroad or anything belonging to it under the article of agreement." The Minnesota Company, by their bill now under review, allege that by this decree, the agreement and the confessed judgment were made absolutely void, not only against Cleveland, the judgment creditor, but also as between Chamberlain and the La Crosse Company; and that Chamberlain, having purchased the Cleveland judgment, remained in possession of the road, notwithstanding this decree, receiving large sums of money, amounting altogether to more than $200,000, for which he is bound to account. They prayed, therefore, that Chamberlain be ordered to apply to the payment of the Cleveland judgment, from the money so received, a sum sufficient for that purpose; and that he be ordered to account; that he be credited with the sum applied to the Cleveland judgment; that the balance be ascertained; that the Cleveland judgment be ordered to be canceled, and that the ascertained balance, if against Chamberlain, be paid to the Minne sota Company; or if in his favor, by the Min- | against creditors, to submit that arrangement, nesota Company to him. They also pray further as between themselves, to the action of the court. relief. It is true that it is the constant practice of It was the manifest intention of the Minne- courts of equity to decree between co-defendants sota Company to seek a decree in this suit only upon proper proofs, and under pleadings between upon hypothesis of the nullity of the Cleveland plaintiffs and defendants, which bring the rejudgment, and the prayer for particular relief spective claims and rights of such co-defendants was framed accordingly. We are also informed between themselves under judicial cognizance. by the counsel for the Minnesota Company and In the case of Farquharson v. Seton, 5 Russ., for Graham and Scott, as well as by the counsel 45, cited by counsel, the pleadings showed that for Chamberlain, that there is now pending in Farquharson, as a co-defendant with Seton in the Circuit Court of the United States for the another suit, had, by answer, set up the same District of Wisconsin, a suit, brought by the case against him that he afterwards set up by Company against Chamberlain, for the direct bill. In the former suit the decree had been object of setting aside the contract between against Farquharson, and he afterwards sought Chamberlain and the La Crosse Company. In to renew the litigation by an original proceeddisposing of the cause before us, therefore, we ing, and it was held properly that the former shall not inquire whether that contract was or decree, though between co-defendants, was a was not one which the La Crosse Company bar. So in the case of Chamley v. Lord Duncould legally make, nor whether the contract sany, 2 Sch. & L.. 718, the general litigation and the judgment were or were not in law void was for the settling and marshaling of incumabsolutely or as against creditors only. These brances; and it was held, that where a case was matters may be better and more regularly inves- made out between defendants, by evidence aristigated and passed upon in the cause now before ing from pleadings and proofs between plaintthe circuit court and, if necessary, upon ap-iffs and defendants, a court of equity was enpeal from the decree in that cause. At present we shall only inquire into the effect of the decree of the district court upon the article of agreement and the judgment which it declared to be void. titled to make a decree between the defendants. In this case the decree was between defendants who asserted adverse interests in the incumbered estate. But neither of these cases assert the doctrine maintained here for the appellants, that a court of equity may decree between defendants when neither pleadings nor proofs show any controversy or adverse interest between them. Nor have we been referred to any case which does assert that doctrine. We have seen already that, according to the allegation of the Minnesota Company in their bill now before us, the issue between Cleveland, the complainant, and the La Crosse Company and Chamberlain, the respondents in the cause in which that decree was made, was upon the question whether the agreement and judgment were or were not void as against Cleveland and his judgment. The decree was evidently in tended to determine that issue. It was, as evidently, not intended to determine the question whether the making of the agreement was beyond the corporate powers of the La Crosse Company, for there are no terms which affirm its inherent invalidity without regard to intent. It is our duty to construe the decree with reference to the issue it was meant to decide. Its words are very broad and very emphatic; but we cannot say that they were intended by the district court to have any greater effect than to avoid and set aside, as against Cleveland, the agreement and the judgment impeached by his bill. We think, on the contrary, that a decree having such an effect could not have been properly rendered upon the pleadings and issue in that cause. Neither the La Crosse Company nor Chamberlain sought to avoid the agreement or the judgment, nor asked any relief whatever as against each other. Indeed, the case shows that both regarded the agreement and the judgment as essential to their respective interests. We cannot ascribe to any court an intention, by a decree on such pleadings, to anal such an arrangement as between the parties In one of the cases before us, that of Graham to it, nor could we approve such action even and Scott v. Chamberlain and The La Crosse were the intent clear beyond question. No Company, there are averments in the bill which question was made between Chamberlain and would require an answer if the general structthe La Crosse Company, nor could any ques-ure and the special prayer of the bill and the tion arise between them of any such nature as absence of a general prayer did not show that that between those parties and Cleveland, nor in this case, as in the case of the Minnesota could they be required, in a suit prosecuted by Company, the real object of the suit was to esCleveland, to enforce satisfaction of his judg- tablish the Cleveland decree as an absolute bar ment by setting aside their arrangement as void to the assertion by Chamberlain of any right We think, therefore, that the decree of the district court in the case of Cleveland against The La Crosse Company and Chamberlain must be regarded as having made void the arrangement between the Company and Chamberlain only as against the judgment creditor, Cleveland; and not as having determined anything between these parties. Nor do we intend here to determine anything as between them. We leave all questions concerning the validity of Chamberlain's judgment and its lien on the railroad, or touching the va lidity of the articles of agreement between Chamberlain and the La Crosse Company, or relating to the rights of parties in or to Chamberlain's receipts under that agreement, to be investigated and determined in the suit now pending in the circuit court. Nor do we understand the decrees dismissing the bills in the two cases before us as deter mining anything on either of these points, but only as determining that the Cleveland decree adjudged nothing between Chamberlain and the La Crosse Company and, therefore, cannot be regarded as evidence of the annulment of the contract between them in another suit where the validity of the contract is directly in controversy. whatever under his agreement and judgment. | ment, which made the subject of the two suits We do not think it such a bar, and therefore just decided. The cause was afterwards transwithout prejudice to any suit which is now ferred to the circuit court. pending, or may be hereafter brought, to determine any other controversy of the La Crosse Company, or of its creditors, of its successors in right or interest, we shall affirm the decrees of the Circuit Court in the two cases now before us by appeal. Cited-37 Wis., 327; 72 Mo., 492. THE MILWAUKEE AND MINNESOTA RAILROAD COMPANY, Appt., v. CHARLES HOWARD. A decree is not res judicata or a bar as to others, not parties to it. A court of equity cannot decree between defendants when neither pleadings nor proofs show any controversy or adverse interest between them. A decree,making void an agreement and a judgment, only operates between the parties to the action, and does not make the agreement and judgment void as to other parties. Such decree is not a bar to the assertion of a right, under the agreement and judgment, in another action, against other parties. [No. 149.] Argued Mar. 27, 1866. AF Decided Apr. 3, 1866. PPEAL from the Circuit Court of the United States for the District of Wisconsin. The case is sufficiently stated in the opinion. Mr. Matt. H. Carpenter, for appellant: The filing of petition for release of the prop: erty in the proper case, is the commencement of a proceeding and the only legal proceeding, to recover the property so held. Such petitioner thereby becomes a party to the cause, and is bound by the adjudication of the court on his petition. In Wiswall v. Sampson, 14 How., 68, this court held that the proceedings in the state court of chancery by petition for the discharge of the receiver, founded on a prior right to the property, were conclusive between the parties in the subsequent suit; and were such is the effect of an order or decree, the party aggrieved may always appeal. The decision in the court below in this petition is final as to the petitioner, and ends its connection with and its interest in the cause in the court below; it may, therefore, appeal, although no final decree has been rendered in the cause in the court below, as to the original parties to the cause. Forgay v. Conrad, 6 How., 203; Brewster v. Wakefield, 22 How., 128 (63 U. S., XVI., 303); Bronson v. Railroad Co., 2 Black, 529 (67 U. S., XVII., 359). Mr. John W. Cary, for appellee. Mr. Chief Justice Chase delivered the opinion of the court: This is an appeal from an order denying a petition for the dismissal of a receiver. Sebre Howard filed his bill in the District Court of the United States for the District of Wisconsin, as a judgment creditor of the La Crosse & Milwaukee Railroad Company and Selah Chamberlain, to set aside the contract between the defendants and the confessed judg Sebre Howard having deceased, Charles Howard was made complainant in his stead; and the La Crosse Company having been obliged to allow their road to be sold under mortgage, the Minnesota Company became the proprietor of an important division of it. Before either of these events, a receiver had been appointed in the suit, and had been for several years in possession and management of the road. The Minnesota Company, on acquiring title, court to discharge the receiver and put the intervened in the suit by petition, and asked the petitioner in possession of the division of the road purchased by them. The court being divided in opinion, the petition was denied and the petitioner appealed. We think the appeal was premature. The decision upon the petition was not a final decree in the cause. The removal or appointment of a receiver, as we have heretofore said, rests in the sound discretion of the court, and is not reviewable here. The appeal must, therefore, be dismissed. JOHN H. DUVALL, Claimant of a Lot of Machinery, etc., Piff. in Err., v. THE UNITED STATES. Where plaintiff in error submits no argument, exceptions presumed abandoned; the censing of the war does not release goods seized. Where no argument has been submitted for the plaintiff in error, the court infer that the exception have been abandoned. The effect of the ceasing of the war, on good seized, is not the same as that of a repeal of a stat ute on which a prosecution is founded. U.S. v. Schooner Reform, ante, p.105, followed. Submitted Mar. 27, 1866. Decided Apr. 3, 1869 [No. 145.] Mr. Justice Swaye delivered the opinion the court: This is a writ of error to the Circuit Court the United States for the District of Marylan The United States filed in the district court libel of information against certain goo seized, as was alleged, in transitu, to a part the State of Virginia, then in insurrection. T libel was founded upon the 5th section of t Act of Congress of July 13, 1861, ch. 3, and t 1st section of the Act of August 6, 1861, ch. 6 The plaintiff in error interposed and claim the goods. A verdict and judgment were re dered for the United States. Upon the trial, several exceptions were tak by the claimant. The judgment was affirm by the circuit court, and the case is now before this court for review. An elaborate brief has been filed for the United States. No argument has been submitted for the plaintiff in error. From this we infer that the exceptions relied upon in the circuit court have been abondoned. We have, however, looked into them, and find nothing which we deem erroneous. A motion has been made and fully argued, in behalf of the plaintiff in error, to dismiss the case upon the ground that the war having ceased, the effect of that fact is the same which would have followed the repeal of the statutes upon which the prosecution is founded. That proposition was ruled adversely to the claimant by this court in the case of The U. S. v. The Schooner Reform, Baily and Pennington claimants, decided at this term [ante, 105]. The subject was then fully considered. It is sufficient to refer to the opinion of the court in that case for an exposition of our views, without reproducing the consideration which controlled the decision. The judgment below is affirmed, with costs. money. war steamer, at a vast expense. She had a long, low deck, with a casemate or covered iron plated house in the center, with sloping sides and ends in which was her battery. She had also a powerful ram; and attached to her bow and carried under water, a torpedo charged with about fifty pounds of powder. Two steam vessels of our navy, of the type so novel and yet already so universally known as monitors, were guarding the Wassau sound, to prevent the egress of The Atlanta. These were The Weehawken, commanded by Captain John Rogers, and The Nahant, commanded by Captain John Downs. Captain John Rogers was the senior and commanding officer. Each monitor had one revolving turret with two smooth bore Dahlgren guns, one of fifteen inch and the other of eleven inch caliber. The rebels knew that these monitors were there, and knew their size and force; and The Atlanta, when fully ready, was sent down the sound for the purpose of capturing or destroying them. It would seem, too, that they had little doubt of their success. The Atlanta was accompanied by several steamers having passengers on board to be spectators of the conflict. Two of these steamers were armed and belonged to the Rebel Navy; but being wooden vessels, they kept at a safe distance and On our side, also, took no part in the action. there was a wooden gunboat, Cimmerone, which was directed by Captain Rogers to keep out of the action unless signaled specially. It was at early dawn of the 17th of June, 1863, a little after 4 o'clock, that The Atlanta was descried coming down the sound. The monitors at once began to prepare for action. The Weehawken lay higher up than The Nahant. She slipped her cable. The Nahant The Nahant is to be regarded as one of the capt-weighed her anchor, Captain Downs thinking aring vessels of The Atlanta, within the meaning of the Act of Congress of July 17, 1862. to the captors. As the combined force of the two monitors, Weehawken and Nahant, was superior to that of The Atlanta, and both are to be regarded as capt aring vessels,only one half of the prize money goes The court below had no power to award payment from the prize money of the compensation of the nt of the officers and crews of the monitors which was agreed upon between these parties. No. 142.] Argued Mar. 27, 1866. Decided Apr. 3, 1866. PPEAL from the District Court of the United States for the District of Massachusetts. The case is stated by the counsel of the ap. pellants, and in the opinion. Mr. Reverdy Johnson, for appellants: This vessel, an ironclad war steamer taken from the rebels in battle, has been condemned lawful prize, and the question now is on the istribution. What vessel or vessels in this case "made the capture?" The officers of The Atlanta, ow prisoners of war at Fort Warren in this harbor, have refused to testify, so that I have not the benefit of their statement; but still, the evidence in the cause presents a clear account of this most interesting conflict-perhaps in its bearings on naval science the most significant attle in modern times, except that of The Monifor and Merrimac. The Atlanta, originally a British steamer, powerful and fast, called The Fingal, had early in the war run the blockade of Savannah and ixen converted by the rebels into an ironclad he might need it in the action in case of injury to his motive power, and that he could prepare for action as well while weighing. To give themselves time to be fully ready, Captain Rogers steamed slowly down the sound, directing Captain Downs to follow in his wake, the Weehawken having the pilot. Captain Downs followed in the wake of The Weehawken as soon as he got his anchor. This left him for a time nearer to the advancing enemy than The Weehawken. When fully ready, The Weehawken turned toward the advancing enemy. Just as she turned, The Atlanta opened her fire on The Nahant. Her shot did not take effect. The Weehawken rounded and steamed towards The Atlanta, The Nahant following in her wake. It was then seen that The Atlanta was stationary and lying partly across the channel. When within between three hundred and four hundred yards, The Weehawken slowed and fired her fifteen inch gun. Drifting with the tide and under slow way, when within about two hundred yards, she fired both her guns as nearly together as possible. Captain Downs acted on a different plan. He thought his fire would be most effectual close aboard, and made directly for The Atlanta at full speed, reserving his fire until he should be at close quarters. Captain Downs was never, from the first, more than a thousand yards separated from The Weehawken, and at the second discharge was about the same distance from The Atlanta that The Weehawken was. Immediately after the second discharge from The Weehawken, The Atlanta |