struction as to the liability of the defendant was erroneous. He contends that the evidence showed that the erection of the building and all the other work, including the construction of the area, was done by an independent contractor, and that the owner of the land, for whose benefits the improvements were made, is not liable in such cases for any such injuries occasioned by an obstruction or defect in the street caused or created by the contractor or his workmen in the construction of such improvements. Two answers may be given to that proposition, either of which is satisfactory: 1. That it assumes a theory of fact which is contradicted by the evidence. 2. That this court, in its former decision, overruled it as applied to a case where the work contracted to be done was itself of a character necessarily to constitute an obstruction or defect in the street or highway requiring pre678*] cautions, care and oversight, to protect the traveler from danger and injury. 1. Theory of fact assumed by the defendant is not sustained by the evidence. Seven contractors were employed in preparing the lot, laying the foundation, erecting and completing the building, raising the sidewalk, constructing the area, laying the flagstones, putting in the gratings, and finishing the improvements. Contractor who constructed the area finished his contract prior to the 19th day of December, 1856, when he left and went away, and did not return until after the accident. Uncontradicted evidence was introduced that the defendant frequently visited the premises during the progress of the work, and that the curb wall was raised eight or nine inches under his special directions in the latter part of September of that year. Both the area and curb wall were ready for the flagstones four months before the accident. When the area was completed it was covered with joists three by twelve inches but they were afterwards removed when the gratings were put down, late in the fall, and were never properly replaced. Attention of the defendant was several times called to the dangerous condition of the sidewalk, and the superintendent of public works gave him notice in writing that the area was not properly covered. He gave no heed to these repeated admonitions, but insisted throughout that it was the sole business of the contractor, with which he had nothing to do. Such wilful negligence, the law will never excuse. 2. Import of the decision of this court in reversing the former judgment of the circuit court, and remanding the cause for a new trial, was, that the party contracting for the work was liable, in the case like the present, where the work to be done necessarily constituted an obstruction or defect in the street or highway which rendered it dangerous as a way for travel and transportation, unless properly guarded or shut out from public use; that in such cases the principal for whom the work was done could not defeat the just claim of the corporation, or of the injured party, by prov679*] ing that *the work which constituted the obstruction or defect was done by an independent contractor. Strictly speaking, that question was not open in this case, but the argument was allowed to proceed; and, lest there should be a doubt up on the subject, it is proper to say that we again affirm the proposition. Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. Hole v. Railway Co. 6 Hurlst. & Nor. 497; Ellis v. Gas. Cons. Co. 2 Ellis & Bl. 767; Newton v. Ellis, 5 Ellis. & Bl. 115; Lowell v. B. & L. R. R. 23 Pick. 24; Storrs v. Utica, 17 N. Y. 104. Implied authority was doubtless shown to construct the area, if it was done with proper precautions to prevent accidents to travelers, but no authority to construct it without such precautions is proved or can be presumed; and it is clear that in leaving it open and without guards during the progress of the work, or after its completion, the defendant was guilty of gross negligence, and the structure itself became unlawful. Concede that the defendant might cast the blame on the contractor while the area was being constructed, still it is clear to a demonstration that he cannot successfully make that answer for his own negligence after the work was completed, and the control and oversight of the contractor had ceased. Looking at the case in any point of view, there is no error in the record. Judgment affirmed, with costs. WINTHROP W. GILMAN, Plff. in Err., v. JOHN LOCKWOOD. (See S. C. 4 Wall. 409-411.) Insolvent's discharge under state law, no bar in courts of United States or of another state to non-resident creditor not a party to proceedings. the insolvent laws of a state, cannot be pleaded A discharge in insolvency from all debts under in bar of an action brought by a citizen of another state, in the courts of the United States or of any other state than that where the discharge was ob tained, unless it appear that the plaintiff proved his debt against the defendant's estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one state cannot discharge the contracts of citizens of other states. [No. 136.] Submitted Feb. 14, 1867. Decided Feb. 26, 1867. N ERROR to the Circuit Court of the United States for the District of Wisconsin. John Lockwood, a citizen of Wisconsin, made, at Milwaukee, in that state, his promissory note payable there, and delivered the same to NOTE. Bankrupt and insolvent laws of state, constitutionality of; bankrupt laws of U. S. suspend state bankrupt laws. Discharge in foreign county, no bur-see note to Sturges v. Crowninshield, 4 L. ed. U. S. 529. Conflict of laws as to transfer of property out of the state by bankruptcy or insolvency proceedings see note, 65 L. R. A. 353. the plaintiff, then and afterwards a citizen of New York. The plaintiff in error below, sued to recover on this note. The defendant there interposed insolvent proceedings in the circuit court of Wisconsin, to which the plaintiff was a party under the laws of Wisconsin, but in which the plaintiff actually took no part. To the plea the plaintiff demurred. The demurrer was overruled and judgment for the defendant entered; from which the plaintiff sues this writ. Mr. M. H. Carpenter, for plaintiff in error, insists that the demurrer should have been the proceedings, has no jurisdiction of the case. Baldwin v. Hale, 1 Wall. 223, 17 L. ed. 531; Baldwin v. Bank of Newbury, 1 Wall. 234, 17 L. ed 534. Unquestionably the decision in those cases controls the present case, and renders further remarks upon the subject unnecessary. Demurrer should have been sustained. Judgment reversed, with costs, and the cause remanded for further proceedings in conformity to the opinion of this court. in Err., sustained, and refers the court to the case of *TOBIAS S. BRADLEY et al., Plffs. [*459 Baldwin v. Hale, 1 Wall. 223, 17 L. ed. 531, where the precise questions involved herein are fully considered and settled. Mr. O. H. Waldo for defendant in error. Mr. Justice Clifford delivered the opinion of the court: Amended plea of the defendant admitted, as the declaration alleged, that the plaintiff, when the note was made and delivered, was a citizen of the state of New York; and that the defendant was a citizen of the state of Wisconsin, where the note is dated and was executed. Action was assumpsit to recover the amount of a certain promissory note, described in the notice of claim annexed to the declaration. Defendant pleaded his discharge in insolvency from all his debts prior to the commencement of the action under the insolvent laws of the state where he resides, and where the contract was executed between the parties. Plaintiff demurred especially to the plea, and the defendant joined in demurrer. Causes of demurrer shown were: issue. Second. That the insolvent court exceeded its jurisdiction in attempting to determine the rights of the plaintiff under this contract, as he was a citizen of another state, and never became a party to the proceedings in insolvency. Third. That the discharge in insolvency set up in defendant's plea is nugatory, because the insolvent law of the state as to the plaintiff is unconstitutional and void. Circuit court overruled the demurrer and rendered judgment for the defendant; whereupon the plaintiff sued out this writ of error and removed the cause into this court. State legislatures may pass insolvent laws, provided there be no act of Congress establishing a uniform system of bankruptcy conflicting with their provisions, and provided that the law itself be so framed that it does not impair the obligation of contracts. Certificates of discharge, however, granted under such a law, cannot be pleaded in bar of an action brought by a citizen of another state in the courts of the United States, or of any other state than that 411*] where the discharge was obtained, unless it appear that the plaintiff proved his debt against the defendant's estate in insolvency, or in some manner became a party to the proceedings. Insolvent laws of one state cannot discharge the contracts of citizens of other states; because such laws have no extraterritorial operation, and consequently the tribunal sitting under them, unless in cases where a citizen of such other state voluntarily becomes a party to v. THE PEOPLE OF THE STATE OF ILLINOIS. (See S. C. 4 Wall. 459-463.) Tax on capital of state bank not a tax on the shares-U. S. securities. bonds of the United States, which are exempt from As the capital of state banks may consist of the state taxation, a tax on the capital is not equivalent to a tax on the shares. Tax on the capital stock of such a bank, under an Illinois statute, held unauthorized. [Mr. Justice DAVIS did not sit in this cause.] [No. 369.] Submitted Feb. 8, 1867. Decided Feb. 26, 1867. IN ERROR to the Supreme Court of the State of Illinois. The case is stated by the court. Messrs. Dexter, Walker, and Wirt, for the plaintiffs in error: The policy of taxing the capital and property of the bank as an entirety to the corporation itself, and thereby relieving the shares in the hands of the holder, was early adopted by the legislature of the state of Illinois, and steadily and perseveringly adhered to till the present time. It will not do to take the ground which the auditor seems to intimate, and which must be assumed if he be correct in his objections to the action of the board of supervisors, that the law of the state intends to tax the capital stock and property of the banks; and while it prescribes and directs that it shall be listed by and assessed against the corporation itself, yet if this is not done and the tax be levied on the shares in the hands of the holder, no wrong is thereby done to anyone, since it is to be presumed that the same property is reached and taxed; and that the form or mode of its assessment is immaterial, and the error, if there be one in this respect, should be disregarded and the tax held to be valid. But these are statutes by which it is sought to take the property of the individual and appropriate it to the public use, and they must be strictly construed; upon this subject the rule is well settled. In the case of U. S. v. Wigglesworth, 2 Story, 369, Mr. Justice Story says: "The general rule in the interpretation of all statutes levying taxes or duties upon subjects or citizens, is not to extend their provisions beyond the clear import of the language used, or to enlarge their operation so as to embrace mat NOTE.-Taxation of capital stock of corporations -see note, 58 L. R. A. 513. ters not specifically pointed out, although association is invested in United States secustanding upon close analogy. In every case of doubt, therefore, such statutes are construed most strongly against the government and in favor of the subjects and citizens, because burdens are not to be imposed nor presumed to be imposed, beyond what the statutes expressly and clearly import. Revenue laws are in no just sense either remedial laws or laws founded upon public policy, and therefore are not to be liberally construed." It is said in Wheeler v. Chicago, 24 Ill. 107, a case involving the legality of a tax, "that a statute under which the property of the citizen is to be taken from him for the use of the public is to be strictly construed, and it must be complied with in all its essential provisions." To the same effect, among others, are the following authorities: See Wall v. Jones, 9 Pick. 414; Moseley v. Tifft, 4 Fla. 402; Dwar. 743, 749. "It will not do to adopt a course not authorized by the statutes, upon the principles that it is equivalent to the requirement of the statute." Rathbun v. Acker, 18 Barb. 393; Thurston v. Prentice, 1 Man. Mich. 194; Hale v. Benton, Dudley (Ga.), 105; Dwar. Stat. 767. There is no law justifying the imposition of such a tax, nor it is possible so to construe the legislation of the state relating to the subject as to create even a show of authority for such a proceeding. It is said, to be sure, by the auditor, that the entire property, which includes all the shares, is taxed as a whole, and that this, so far as the rate is concerned, is equivalent to taxing the share. But the answer to this is that, under the authority to which we have referred, this class of statutes is to be strictly construed, the mode of taxation designated must be scrupulously adhered to, and for it there is and can be no substitute or equivalent. These rules re- | late as well to the statute authorizing and regulating the objects and rate of taxation as to the machinery and manner of imposition. ers. And again; a tax levied upon the entire capital of a bank, which includes all the shares, is not the same thing or equivalent to a tax levied upon the shares in the hands of the stockhold"The corporation," says Mr. Justice Nelson, in the case of Van Allen v. Assessors, 3 Wall. 584 (ante, 229), "is the legal owner of all property of the bank, real and personal; and within the powers conferred upon it by the charter and for the purpose for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own. This is familiar law, and will be found in every work that may be opened on the subject of corporations." A striking exempliication may be seen in the case of Queen v. Arnold, 9 Ad. & El. N. S. 806. Messrs. John M. Palmer and Cullom, for the defendant in error: The Supreme Court of the United States has settled, as far as judicial decisions can determine any question, that the states may, without infringement upon the Federal Constitution or the acts of Congress, tax the shares of stockholders in the national banks, and that such shareholders are not entitled to the exemption of their shares from taxation, because the whole or part of the capital stock of such rities. Van Allen v. The Assessors, 3 Wall. 573 (ante, 229); People etc. v. Denning, Duer, Dec. term, 1866; People etc. v. Commissioners etc. (ante. 344). The states cannot tax the capital or the franchises of the banks; they are protected by the principles of the decisions cited by the counsel for the plaintiff. They cannot tax the bonds of the United States. They are protected from state taxation by the act of Congress and by the authority of judicial decisions. Both of these propositions are distinguishable from the one involved in the argument of this case, and in the supreme court of Illinois and in this court, the proper distinctions have been perceived and vindicated with the utmost possible clearness. Chief Justice Walker, delivering the opinion of the court in this cause, amply recognizes as conclusive the decisions in Osborn v. U. S. Bank, 9 Wheat. 738, and McCulloch v. Maryland, 4 Wheat. 316, adding the concession that the securities of the government are exempt from taxation, enforces the distinction between the franchises which belong to and are a part of the legal entity-the corporation. The bonds of the government which, by investment of the funds, become the property of the association, and the shares which belong to the individual stockholders and distinct from the corporate property, are the objects of legislation, adjudication, and upon the death of the owner become subject to distribution and descent. And Mr. Justice Lawrence, in delivering his own concurring opinion said: "The bonds issued by the general government are not the subjects of taxation." Yet, if the bondholders elect to convert them into bank stock and thereby come into the exercise of a valuable pecuniary franchise, not possessed by them in the character of mere bondholders, they must do so on such conditions as the act giving this privilege imposes, and this court, in the case of Van Allen v. Assessors, supra, used the following language: "But in addition to this view, the tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all the property of the bank, real and personal, and within the powers conferred upon it by the charter and for the purposes for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own." The interest of the shareholder entitles him to participate in the net profits earned by the bank in the employment of its capital during the existence of its charter, in proportion to the number of its shares, and upon its dissolution or termination, to his proportion of the property that may remain after the payment of its debts. This is a distinct, independent interest or property held by the shareholder, like any other property held by him." This language is quoted and approved by the court in the case of Mead v. The Commissioners, decided at the present term, and it is added, "of course is subject to like taxation." These decisions are relied upon as conclusive adjudications, that shares in the national banks are the property of the stockholders, distinct from the capital or the franchises of the cor poration; distinct from the bonds in which the moneys of such corporation are or may be invested, and are, as the property of such share holder, subject to state taxation. as courts of law. Mr. Justice Nelson delivered the opinion of the rigid requirements of the statute for the pur The supreme court reversed the decision of the board, and held the shareholders liable to Courts of equity have in many instances relaxed poses of hindering the statute made to prevent frauds from becoming the instrument of fraud. In order that equity may enforce specific execution of a parol contract for the sale or exchange of payment, or tender of the consideration, part perlands, a party must show conclusively a contract, formance and delivery of possession. Where there has been no part execution on either side, nor anything but a breach of promise, the relief will not be granted. [No. 135.] Argued Feb. 14, 1867. Decided Feb. 26, 1867. APPEAL from the Supreme Court of the District of Columbia. The cause comes up on an appeal from the judgment of the supreme court of the District of Columbia, dismissing the bill of the complainant, Purcell, which prayed the court to enforce the specific performance of a parol contract for an exchange of lands, alleged to have been made between the complainant and James Coleman, one of the defendants. the tax. The ground of exemption relied on, both before the supervisors and the supreme court, was want of authority in the board within the 41st section of the national bank act of June, 1864, and particularly within the second proviso of that section, which declares that the tax "shall not exceed the rate imposed upon the shares in any of the banks organized under the authority of the states." The bill of the complainant sets forth that The act of the state dated Feb. 14, 1857, pro-about the 10th day of January, 1861, he traded vides for taxing the capital stock of the banks, with Coleman a farm in Virginia for a house together with the surplus profits or reserve and lot in the city of Washington, it being funds. No tax is imposed specifically on the agreed that deeds therefor should be prepared shares held by the stockholder. at the reasonable convenience of the complainant; that the complainant did prepare a deed and tender it to Coleman, and had commenced to make improvements on said house in Washington city." The question raised in this case came before us in the case of Van Allen v. Assessors, 3 Wall. 573 [ante, 229], from New York, where the statute taxing the state banks was substantially like that of Illinois. We there held the tax unauthorized for the defect stated. The answer of the defendant, Coleman, denies that he traded lands with the complainant, averring that he and the complainant had entered into negotiations looking to a trade in lands, and that while these negotiations were in progress, he let the complainant have one of the keys of his house in Washington for the purpose of giving him an opportunity of examining said house, and thus judging its value, whilst he, Coleman, examined the farm in Vir It was in that case attempted to be sustained on the same ground relied on here, that the tax on the capital was equivalent to tax on the shares as respected the shareholders. But the position was answered that, admitting it to be so, yet, inasmuch as the capital of the state banks may consist of the bonds of the United States, which were exempt from state taxation, it was not easy to see that the tax on the cap-ginia, for which it was proposed an exchange ital was an equivalent to a tax on the shares. We see no distinction between the two cases. and the judgment of the court below must be re463*] versed, and the proceedings remanded, with directions to enter a judgment affirming the decision of the board of supervisors. WILLIAM F. PURCELL, Comp. and Appt., บ. JAMES COLEMAN, Austin L. Adams, Gilbert (See S. C. 4 Wall. 513-519.) of should be made; but that he, having found said farm incumbered, declined to trade with the complainant, who thereupon claimed that the trade had been completed and refused to surrender the key of Coleman's house. Evidence was given to the effect that Colenan, at sundry times and to various persons, stated that he had traded his house in Washington with the complainant for a farm of the latter in Virginia. Here the plaintiff rested his case. No testimony was offered by the defend ants. Messrs. R. J. Brent and R. T. Merrick, for appellant: The statute of frauds is not relied on nor inStatute of frauds contract for exchange lands-when parol contract for sale or ex-timated in the answer of defendants, but if it change of lands, enforced. A contract for the exchange of lands is as much NOTE-When specific performance decreed, and when refused-see notes to 4 L. ed. U. S. 65; 4 Led. U. S. 253; 5 L. ed. U. S. 322; 39 L. ed. U. & 956. Specific performance of parol agreement for land see note, 38 L. ed. U. S. 976. had been, it would not apply in this case; for there are circumstances which take a case of parol sale or exchange of land out of the statute of frauds. Dart, Vend. 477. See Fry, Spec. Per. 100 vol. Law Lib. 171, side; 100 vol. Law Lib. 174, $8 383, 384, etc., 100 vol. Law Lib. 180; §§ 397, 401; Butcher v. Stapely, 1 Vern. 363; Pyke v. Williams, 2 Vern. 465; 9 Pet. 103; 1 Story, Eq. | ing on courts of equity as courts of law. Every 759, etc. The giving possession is part performance. 1 Story, Eq. § 765, note 1; Simmons v. Hill, 4 H. & McH. 252. Grounds of error are as follows: 1. The possession being mutually given and taken by the parties, entitled appellant to specific performance of the agreement. Boone v. Chiles, 10 Pet. 177. 2. Time was not of the essence of the contract, and it was enough that Purcell was ready to give a legal title when the deed to him was ready to be executed, and that he was ready. Rec. 45; Brashier v. Gratz, 6 Wheat. 528; Taylor v. Longworth, 14 Pet. 172. That an exchange will be specifically decreed. McIver v. Kyger, 3 Wheat. 53. It is enough if the vendor has a good title at time of decree. Hepburn v. Auld, 5 Cranch, 262. Complainant is ready to convey a good title at the hearing (see offer of Austin L. Adams in his answer), and this is sufficient. 1 Story, Eq. § 777; Hepburn v. Dunlop, 1 Wheat. 179; Dart. Vend. 209, 211. Mr. Gilbert S. Miner, in person, for the appellees: The defendants maintain that the court below did not err in their judgment, dismissing the bill upon the ground following, viz.: 1. That the complainant proves no contract of exchange at all, the statements of Coleman, having led no party to act upon them, are, even if accurately remembered by witnesses, who did not charge their minds therewith, but loose and careless declarations which, if they be evidence, are of little weight. Stark. Ev. vol. 11. 24; Flagg v. Mann, 2 Sumn. 486. 2. That the contract proved to have been admitted by Coleman is too vague and uncertain to be enforced by a court of equity. Colson v. Thompson, 2 Wheat. 336; Hall v. Hall, 1 Gill. 383; Millard v. Ramsdell, Harr. Ch. 373; McCue v. Johnston, 25 Pa. 306; Printup v. Mitchell, 17 Ga. 538. 3. The complainant not being able to make a title free from incumbrance, is not entitled to a decree for specific performance. Morgan's Heirs v. Morgan, 2 Wheat. 290. 4. That the contract sets forth in the bill of complaint, if prima facie within the statute of frauds, and that the acts of part performance alleged are not sufficient to take the contract out of the statute. Watts v. Waddle, 6 Pet. 389; Caldwell v. Carrington's Heirs, 9 Pet. 96; Brashier v. Gratz, 6 Wheat. 528; Thompson v. Todd, 1 Pet. C. C. 380; McKee v. Phillips, 9 Watts, 86; Young v. Glendenning, 6 Watts, 510; Gangwer v. Fry, 17 Pa. 495; Moore v. Small, 19 Pa. 461. Mr. Justice Grier delivered the opinion of the court: A contract for the exchange of lands is as much within the statute of frauds as a contract for their sale, and a party seeking to enforce a specific execution of a parol contract for that purpose, must bring himself within the same conditions before he can invoke the aid of a court of equity. The statute, which requires such contracts to be in writing, is equally bind day's experience more fully demonstrates that this statute was founded in wisdom, and absolutely necessary to preserve the title of real property from the chances, the uncertainty, and the fraud attending the admission of parol testimony. It has been often regretted by judges that courts of equity have not required as rigid an execution of the statute as courts of law. Nevertheless, courts of equity have, in many instances, relaxed the rigid requirements of the statute; but it has always been done for the purposes of hindering the statute made to prevent frauds from becoming the instrument of fraud. A mere breach of a parol promise will not make a case for the interference of a chancellor. It is plain that a party who claims such interference has the burden of proof thrown on him. He knows that the law requires written evidence of such contracts, in order to their validity. He has acted with great negligence and folly who has paid his money without getting his deed. When he requests a court to interfere for him and save him from the consequences of his own disregard of the law, he should be held rigidly to full, satisfactory, and indubitable proof First. Of the contract, and of its terms. Such proof *must be clear, definite and [*518 conclusive, and must show a contract, leaving no jus deliberandi or locus pœnitentiæ. It cannot be made by mere hearsay, or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witness had no reason to recollect from interest in the subject-matter, which may have been imperfectly heard, or inaccurately remembered, perverted or altogether fabricated; testimony, therefore, impossible to be contradicted. Second. That the consideration has been paid or tendered. But the mere payment of the price, in part or in whole, will not, of itself, be sufficient for the interference of a court of equity, the party having a sufficient remedy at law to recover back the money. Third. Such a part performance of the contract that its rescission would be a fraud on the other party, and could not be fully compensated by recovery of damages in a court of law. Fourth. That delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party. This will not be satisfied by proof of a scrambling and litigious possession. The application of these principles to the case before us will show that the plaintiff has wholly failed to establish a case proper for the interference of a court of equity. We do not think it necessary to a vindication of our judgment to give a history either of the pleadings or evidence disclosed by the record. The case appears to have been carried on by the parties propria persona, who are excusable for their ignorance of all the rules of pleading and practice in a court of chancery, or the proper mode of taking testimony. The merits of the case seem to have been tried in a verbal wrangle before two justices, and afterwards converted into a written one for the consideration of the court. |