sons already given, as well as others, which will 512*] be briefly stated: 1. Unquestionably, *the complainants receive deposits as one of the primary purposes of the charter, and the second by-law of the bank provides that "deposits of one dollar, or any number of dollars, may be received, but are not, in the whole, to exceed $1,000 from any depositor, without the special direction of the attending committee." General rule is, that no depositor is allowed to have deposits beyond $1,000; but he may have that amount, and, in special cases, when it is made to appear that he can find no other investment, he may exceed that amount. 2. By the terms of their charter they are obliged to pay each depositor, when required, "and at such times, and with such interest, and under such regulations as the trustees shall from time to time prescribe."

such qualification as was imposed by the proviso. 13 Stat. at L. 479. Although the proviso is repealed, still it is proper to resort to it as well as to the proviso in the 79th section of the same act, as affording a legislative exposition of what is meant by the phrase, engaged in the business of banking, as employed in the first clause of the section under consideration. Looking at the case, therefore, in any point of view, it is clear that the answer to the third question must be in the affirmative.

7. Fourth question presented for decision is, whether the moneys so received on deposit and invested, are deposits within the meaning of the act of Congress. Obviously the question as presented is substantially answered by the remarks already made in disposing of the preceding question. All the moneys received by the bank, whether for safe keeping or for inObligation of repayment exists throughout, vestments, are deposits within the meaning of and it cannot make any difference as to the lia-their by-laws, and within the very words of bility of the complainants in this case that the their charter. Answer to this question, also, entries are made in a pass-book, and that the must be in the affirmative. depositors can only obtain their deposits at certain stated periods. Deposits are made to be invested for the benefit of the depositors, and the bank is under obligations to repay the amount when demanded, agreeably to the bylaws and charter. 3. Only remaining condition to bring the case within the words of the body of the act is, that the deposits should be made with a person, bank, association, company, or corporation engaged in the business of banking. Agreed case shows that the corporation complainants were engaged in receiving deposits, and loaning the same on interest for the benefit of the depositors. Irrespective of the definition given to that phrase in the language of the proviso, the same conclusion must be adopted from the facts exhibited in the statement of the case, unless it can be established that the receiving of deposits by a chartered company, and loaning or investing the same for the benefit of the depositors, is not a business of banking.

Banks, in the commercial sense, are of three kinds, to wit: (1) Of deposit; (2) of discount; (3) of circulation. All or any two of these functions may, and frequently are, exercised by the same association; but there are still banks 513*] of deposit, *without authority to make discounts or issue a circulating medium. Ang. & Ames, Corp. § 55; McCull. Com. Dict. p. 73.

*8. Fifth question is whether moneys [*514 received on deposit in any one month, and invested during the same month, are deposits within the meaning of said acts, so as to render the complainants liable to pay a tax thereon for such month. Moneys received, as already explained, whether invested or not, are deposits within the meaning of the acts of Congress, and if so, then it is clear that the amount, whatever it may be, is liable to taxation as soon as it is received by the bank, because when received by the bank, it becomes deposits, and continues to be such till it is repaid to the depositor. An affirmative answer must also be certified to this question.

No answers will be certified to the first two questions, because the court is of the opinion that those given to the others are sufficient to dispose of the cause.

Dissenting, Mr. Justice Grier and Mr. Justice Nelson.

THEODORE J. CAMPAU, Plff. in Err.,

บ.

GEORGE W. LEWIS et al.

(See S. C. 3 Wall. 106.)

stamps, not reviewable.

The decision of a state court as to the amount of revenue stamps necessary to be attached to a deed which can be brought into this court under the of land, under the revenue act, is not a question 25th section of the judiciary act.

"Banks for savings," says McCulloch, "are Decision of state court as to amount of revenue banks established for the receipt of small sums deposited by the poorer class of persons for accumulation at interest." p. 146. Definition given by Grant is more extended, but it amounts to the same thing. Grant, Bank, 614. Courts of justice, also, as well as text-writers, recognize the well-known distinction between banks of deposit and banks of discount or circulation. Duncan v. Savings Inst., 10 G. & J. 309; People v. Utica Ins. Co. 15 Johns. 390;| Argued Jan. 26,1866. Decided Mar. 12, 1866. Grant, Bank, 1, 6, 614.

[No. 348.]

6. Beyond all controversy the proviso, while it continued in force, had the effect to exclude IN ERROR to the Supreme Court of the State

the corporation complainants from the operation of the substantive words of the section. Since the passage of the act, however, the proviso has been stricken out, and the palpable effect of the repeal is to leave the body of the act in full force and operation, without any

of Michigan.

This action was commenced by the present plaintiff in error in the circuit court for the county of Wayne, Michigan, in chancery, for the purpose of setting aside two deeds. That court dismissed the bill, and this decree was affirmed on appeal by the supreme court of the state of

The

Michigan. The original complainant brought
the case to this court by writ of error.
two deeds, to set aside which the action was
brought, were made, the one by Mrs. Lewis, the
sister of the complainant, to a third party; the
other by that third party to Mrs. Lewis and her
husband. Mrs. Lewis having died childless, the
property in question vested in her husband. The
property conveyed was the interest of Mrs.
Lewis in property inherited by her and her
brothers and sisters from their father, Joseph
Campau. Several reasons were urged in the
court below, why the deed should be set aside,
among others, that Mrs. Lewis was mentally in-
competent; that she was unduly influenced by
her husband; and that the deeds were void for
want of sufficient stamps according to the value
of the property under the act of Congress of
July 1, 1862. The latter point is the only one
which the plaintiff in error attempted to raise

here.

Mr. Levi Bishop, for the plaintiff in er

ror:

The plaintiff in error claims that the property did not pass from his sister Emily (Mrs. Lewis) by the first deed, for the reason that such deed was void for want of a sufficient amount of stamps under the act of Congress, and that as a consequence of her death, it descended to the brothers and sisters as heirs at law.

It is sufficient, generally, if it appears from the record that the point was involved in the

case.

Craig v. Missouri, 4 Pet. 410; Mills v. Brown,

16 Pet. 525.

The claim set up need not have originated in or have been derived from an act of Congress. It is enough that it is protected by such act.

New Orleans v. De Armas, 9 Pet. 224; Montgomery v. Hernandez, 12 Wheat. 129.

THE UNITED STATES, Appt.,

v.

VINCENTE P. GOMEZ.

(See S. C. 3 Wall. 752-767.) Practice on appeal-filing of transcript of record on mandamus to compel-grounds of rejection of land claim-fraudulent decree in district court-effect of.

general rule is, that the transript of the record
*1. Where an appeal is taken to this court, the
must be filed, and the case docketed, at the term
next succeeding the appeal.

lowed to that rule, as where the appellant, without
2. Exceptions are, necessarily, recognized and al-
fault on his part, is prevented from seasonably ob-
taining the transcript by the fraud of the other
party, or by the order of the court or the con-
tumacy of the clerk.
3. Mandamus is the exclusive remedy, where a
petition for appeal is improperly denied and it is
an appropriate remedy to compel the clerk, in case
of refusal, to prepare and deliver the transcript.
4. Resort might have been had to that remedy,
in this case, but it is doubtful whether the appli-
cation would have been effectual, as the proceedings
have been such that the question as to the tendency
of the appeal could not well be determined, with-
out an inspection of the record.

5. Appellants in this class of cases may apply to the clerk or to the district attorney for a transcript of the record, as the latter as well as the former may, in case of appeal, transcribe and certify the same to the court.

but when, after demand and refusal, it was ascer 6. They applied to the clerk in the first instance, tained that he would not furnish it, they applied

without delay to the district attorney; and inasmuch as the transcript was filed and the case docketed at the next succeeding term, the case was regularly before the court, under the exception to the general rule, which is as well established as the

rule itself.

7. Decision of the land commissioners rejecting the claim was correct, as the claimant did not pro duce either a concession or grant, or prove that he ever had possession of the land described in his petition.

8. He offered no additional evidence in the district court, but the proofs of the record introduced by the appellants show conclusively that the con

It is enough that we assert a right of prop-firmation in that court was obtained by fraud. erty which descends to us under general laws, and we resist a claim to it set up by another because such claim is in violation of an act of Congress. The proper construction and application of an act of Congress are the things to be here determined.

9. Form of the decree is correct; and although it was obtained by fraud. still it is sufficient as against the appellee to sustain the appeal, correct the error, and dispose of the case.

Farney v. Towle, 1 Black, 350, 17 L. ed. 216;

Minnesota v. Batchelder, 1 Wall. 109, 17 L. ed.

551; Bridge Co. v. Hoboken, 1 Wall. 117, 17 L.

ed. 571.

This is not a question which can be brought into this court under the 25th section of the judiciary act.

Writ of error dismissed.

[No. 139.]

Argued Mar. 5, 1866. Decided Mar. 19, 1866.

PPEAL from the District Court of the

A United States for the Southern District of

California.

This decree, confirming the title of the respondent to the land described in the petition, was pronounced by the court and minuted in open court at the June term thereof, viz., June 5, 1857.

Afterwards, at the December term of said court, viz., February 5, 1858, a decree was formally signed and ordered by the court to be entered, nunc pro tunc, as of June 5, 1857, the day of its pronouncement.

At the regular December term of said court for 1857, March 15, 1858, the acting United States district attorney moved for leave to take an appeal in this case with others; but subsequently, viz., December 7, 1858, at the regular December term of the court for 1858, the motion was withdrawn. No appeal was afterwards taken from this decree till August 25, 1862,

*Headnotes by Mr. Justice CLIFFORD, who delivered the opinion.

and at the term at which the final decree_is | passed, the citation is necessary (The San Pedro, 2 Wheat. 142); and where necessary, the law requires it to be signed by the judge.

Lloyd v. Alexander, 1 Cranch, 565; Bailiff v. Tipping, 2 Cranch, 406; Wood v. Lide, 4 Cranch, 180; Pickett's Heirs v. Legerwood, 7 Pet. 144; Yeaton v. Lenox, 8 Pet. 123.

It follows that where a citation is required in a case of appeal, it must, as in the writ of error, be issued and served on the opposite party before the terms of the appellate court next after the appeal is entered.

Yeaton v. Lenox, 7 Pet. 220. "There was no such citation in the present case, and the entry in the clerk's office, standing by itself, was not a removal of the case by appeal, according to the act of Congress. There was, therefore, no appeal within the time limited by law."

Bacon v. Hart, 1 Black, 38, 17 L. ed. 52. This court has no jurisdiction, because the appeal was not entered at the term of this court next succeeding the date of the appeal.

This appeal was taken ex parte August 25, 1862. The transcript was not entered and the case docketed in the court till February 29, 1864.

The construction of the act of Congress regulating appeals, and the practice of the court under it, has been settled by the cases of Villabolos v. U. S. 6 How. 81, and U. S. v. Curry, 6 How. 106.

"The transcript must be filed in this court and the case docketed at the term next succeeding the appeal, in order to give this court jurisdiction. The case must, therefore, be dismissed."

Mesa v. U. S. 2 Black, 721, 17 L. ed. 350. This court has no jurisdiction because the pretended appeal, by virtue of which this entry was made, lost all its legal effect by reason of the subsequent proceedings in the district court on the part of the United States district attorney.

We lay much stress on the above proposition, for the reason that whatever effect may be given to the discussion of the question by the court in 1 Wall. 690, 17 L. ed. 677, this point, if well taken, disposes of all the difficulties suggested as to the date of the decree and the necessity of citation.

The record shows that after the decree was taken ex parte on the 25th of August, by stipulation of the district attorney, dated the 6th October, the transcript was withheld and all further proceedings stayed till the next term of the court to be held at Monterey, for the very purpose, as expressed in the stipulation, of giving the claimant an opportunity to make a motion to vacate the order allowing the appeal.

The case, therefore, still remains in the district court, subject to its jurisdiction and orders, and no appeal has ever, since then, been taken to the Supreme Court of the United States.

This court has no jurisdiction, because the decree appealed from was not a final decree.

"No appeal will lie from any order or decision of the court below which is not a final decree."

U. 8. v. Fossatt, 21 How. 445, 16 L. ed. 186. "A final decree in equity is one which finally

decides and disposes of the whole merits of the
cause, and reserves no question or directions
for the future judgment of the court."
Barnard v. Gibson, 7 How. 650.

The jurisdiction of this court in respect to appeals from the district court, is derived entirely from the act of Congress.

"If Congress has provided no rule to regulate our proceedings, we cannot exercise our appellate jurisdiction; and if the rule is pro vided, we cannot depart from it." 3 Dall. 327.

If it be urged that the appearance of the claimant at Washington before the Supreme Court is a waiver of all irregularities or submission to the jurisdiction of the court, the answer is readily found in the facts: First, that the Supreme Court can exercise jurisdiction only in cases and manner prescribed by the acts of Congress, and consent cannot give jurisdiction in cases where the power is not so conferred; and second, that the counsel only ap peared before the court at the last term, specially for the purpose of moving the dismissal of the alleged appeal, upon the grounds that five years had elapsed; that there had been no citation; and that the transcript before the court was defective.

But supposing that this court should decide that this appeal was rightfully here. Then it may be suggested, that there never was any valid decree in the district court; that the decree of confirmation which forms the basis of this appeal, was itself a nullity by reason of fraud.

It is denied, however, that it is competent for this court to consider the question of fraud in the present posture of this case, only so far as it may enter into the question of whether the district court had jurisdiction.

If the decree in dispute is vitiated with fraud, let it be annulled by proper proceedings. The law provides a remedy; but there is no discretion vested in the court which will authorize it to disregard a positive rule of law, with the hope of defeating fraudulent practices of dishonest men.

When a party discovers a fraud, he is bound to be prompt in communicating the discovery, and consistent in the use he proposes to make of it.

Boyce's Executors v. Grundy, 3 Pet. 210.

An inspection of the record shows that no steps were taken by the United States to set aside the decree of confirmation, until the 7th of July, 1858, when Mr. Stanton, the special counsel for the government, filed a motion for that purpose. This motion was not filed until after the final adjournment of the June term in 1858, in vacation.

The duty of the court is limited to the consideration of the merits of this decree, as this case stood in the district court when the title of the claimant was confirmed.

As the law was then understood, the claimant had a good case. It had recently been decided by this court in Frémont's Case, 17 How. 542, 15 L. ed. 241, that it was not essential to prove possession subsequent to the grant, which the commissioners, as appears by their opinion, supposed to be necessary, and it had not been then decided by this court that archive evidence of the grant was indispensable.

As the law is now administered by this court,

the claimant did not prove a good title to the | for mandamus to compel the Surveyor General land which he claimed. He did, however, prove everything that was supposed to be required by the law at the time his title was confirmed by the district court. It does not appear but that he could, if an opportunity were allowed him, supply the defect in his proof, and present a claim which shall satisfy the requirements of Law.

2. Nothing further was done in the cause in this court until the December term, 1859, when the Attorney General filed a motion to rescind the decree dismissing the cause, and to revoke the mandate, basing the motion upon the ground that the decree and mandate had both been procured by misrepresentation and fraud. Minutes of the clerk, also, show that he filed his motion on the 27th day of January, 1860, and that the claimant, on the 2d day of March 5. Three of those questions, to wit, the first, following, filed three other motions. First mo- third, and fifth, were carefully examined and tion of the claimant was for mandamus to the decided by this court during the same term in district court, to compel the judge to file the which the motion was filed, and it is only necmandate and permit the execution of the de-essary to refer to that decision as the final decree confirming the claim. Second motion was for mandamus to compel the district court to dismiss an application before it to open the decree and grant a rehearing. Third motion was