clusive upon the parties who had litigated their | lees as he did in the action of ejectment. The respective titles in a court of law. circuit court dismissed the bill and we are asked to review that decision. 2. There is no proof of fraud in making the sale on the execution. The bill states that N. The common-law form of the action of ejectJ. Brown owned all the property in dispute;ment does not *prevail in Illinois. [*249 whereas, the proof was that he owned only an There the action is without fictions, and is beundivided half of it. tween the real parties in interest, and for the It is not denied that the judgment was in possession of a specific estate and damages for full force, wholly unpaid, and the oldest lien on its detention. On account of the fictitious the property, or that the execution was regular- character of the common-law action of ejectly issued, levied and returned; but it is insist-ment, a judgment was not a complete bar, as in ed, on behalf of the appellant, that the sale was void for fraud and for irregularities. The only irregularity insisted on is, that the hour of making the sale was not definitely fixed in the advertisement. The notice was sufficient in form and sub-action, upon the party against whom the same stance under the statutes and decisions of the state of Illinois. Rev. Stat. 1845, p. 303, § 11; Trustees of Schools v. Snell, 19 Ill. 157. The main ground of complaint about the sheriff's sale is the sacrifice of the property. This was a matter of which the defendant in the execution and not third persons could complain; but the case shows there is no foundation for it in fact. This brings us to consider the 3d ground of defense to this suit, and that is, that B. F. Brown was a bona fide purchaser for value of the premises in controversy, from Calvin Jenks. The appellees, in their answer, deny that there was any fraud or irregularity in the sheriff's sale. This defense is set up with all the formality and particularity required by the decisions of this court. Boone v. Chiles, 10 Pet. 211. But, it is insisted for the appellant, that the failure to return the execution on which the sale to Jenks was made, is either an evidence of fraud in making the sale or was an omission which invalidated the purchaser's title under the sale. This was a matter with which Jenks had nothing to do. He depended on the judgment, the levy and the deed. All other questions are between the parties to the judgment and the marshal (or sheriff). Wheaton v. Sexton, 4 Wheat. 503; Phillips v. Coffee, 17 Ill. 154. The decree below, by a court which had three times heard the whole matter, was right, and ought to be affirmed. Wright v. Neely, 11 Ill. 241. other actions. But in Illinois, by statute (Revised Laws, 1845, chapter 36, § 29), it is declared that "every judgment in the action of ejectment, rendered upon a verdict, shall be conclusive as to the title established, in such is rendered, and all persons claiming from, through, or under such party, by title accruing after the commencement of such action." One verdict alone was not deemed satisfactory by the legislature. The ancient reverence for the tenure by which lands are held had its influence, and the unsuccessful party, of right, is entitled to one new trial, and the court can, if satisfied that justice will thereby be promoted, grant a second. After this the litigation is ended, and the verdict and judgment have the same conclusive effect as in other actions. In Missouri, a judgment in ejectment is also a bar to any other action, between the same parties, on the same subject-matter; and this court, in the case of Miles v. Caldwell, 2 Wall. 44, 17 L. ed. 758, in construing a statute, no broader than the Illinois enactment, held that whatever is conclusive of the title to land in the courts of the state, is equally conclusive in the Federal courts; that it is, in fact, a rule of property. A perfect solution is, therefore, given to this case when it is ascertained what was tried and determined in the ejectment suit. The evidence on this point is so full as to leave no room for doubt. Blanchard did not resist Brown's recovery in the action of ejectment on the sole question of paramount legal title, which he had the right to do, and then endeavor to get rid of it in chancery on the question of superior equities. He chose rather to risk his whole defense in the impeachment of Brown's title for fraud, and because the sale was vitiated by irregularities and the property sacrificed. Having failed *before the jury, he is estopped from [*250 investigating the same matters in another jurisdiction. He waived his right to have the Mr. Justice Davis delivered the opinion of question of fraud litigated in a court of chan the court: and proper, for such questions of fraud and irregularity as were raised could be disposed of as well at law as in chancery. cery, when he presented it, as a defense to the Benjamin F. Brown brought a suit in eject-action at law. And the defense was legitimate ment against Blanchard in the circuit court for the northern district of Illinois, to recover possession of certain real estate in the city of Chicago. Both parties claimed through Nathaniel J. Brown, by virtue of certain judgments and execution sales. Judgments are liens in Illinois according to their priority, and those under which Blanchard claimed were junior to the one on which B. F. Brown rested his title. The suit was tried and resulted in a verdict and judgment for Brown, and a second trial had the same termination. Having failed at law, Blanchard filed his bill in equity seaking to redeem, and making the same attack on the judgment title of the appel A grossly inadequate price is, under some circumstances, evidence of fraud, and a fit subject of inquiry by a jury, in determining the validity of a sale made under legal process. If the sale on the Hart execution was not made for the purpose of satisfying the judgment, but fraudulently to defeat subsequent encumbrancers, and Brown was not a bona fide purchaser for value, then his title was bad: and it was equally bad, if the irregularities were such as to render the sale void. Evidence was given on all these matters, and was never withdrawn from the consideration of the jury. In fact the whole record shows that Blanchard claims equitable relief on substantially the same grounds, and sustained by the same evidence that he relied on to defeat the action of ejectment. The decision in Miles v. Caldwell, 2 Wall. 44, 17 L. ed. 758, is, there fore, applicable. In that case, as in this, the question of fraud had been submitted to the jury, and determined against the complainant; and this court held that he was barred by the proceedings in ejectment, and could not raise anew in chancery the same questions that were heard at law. As this point decides the case, it is not important to review the other questions which were argued. The decree of the Circuit Court is, therefore, affirmed, with costs. SUN CHEONG-KEE, Plff. in Err., v. THE UNITED STATES. (See S. C. 3 Wall. 320-326.) Discretion of court below, not reviewable pleading under state statute-clause in judgment not affecting its validity. Matters wholly within the discretion of the circuit court are not reviewable here. Where the statute of a state expressly declares that new matter in an answer shall, on the trial, be deemed controverted by the adverse party, the answer of the defendant cannot be taken as true. The statement in a judgment, that it is "payable in gold and silver coin for duties," though unnecessary, could not affect the validity of the judgment. [No. 215.] Submitted Jan. 3, 1866. Decided Jan. 22, 1866. N ERROR to the Circuit Court of the United States for the Northern District of California. This is an action in the nature of an action of debt brought in the court below, to recover the sum of $1,240.55, being the amount of certain duties alleged to be due and unpaid by Sun Cheong-Kee, who was defendant below, to the United States. On or about the 12th day of August, 1862, the defendant imported from the port of Hong Kong, in China, into the collection district of San Francisco, certain goods, wares and merchandise, and on the same day made entry thereof with the collector. The duties to which said goods were subject, if estimated according to the provisions of the act of July 14, 1862, would amount to $1,452.55; but if estimated according to the provisions of the law in force at and before the time when said act went into effect, would amount to the sum of $211.70. The defendant alleges that at the time of the entry the collector decided that the goods were subject to a duty of $211.70, and no more; which amount was duly paid. A permit, in the usual form, was thereupon given for the delivery of the goods and they were, accordingly, NOTE.-Error. The Supreme Court will_not_ review the discretionary action of the court below see note to Barrow v. Hill, 14 L. ed. U. S. 48. delivered to the defendant and before the defendant knew that said goods were subject to any further duties, and before any further duties were demanded, said goods were sold by him. At the time of the entry neither the collector nor the importer knew of the passage of the act of July 14, 1862, and no copy of said act had reached the state of California. The case was tried on the 17th day of June, 1864, when the case was submitted on the defendant's answer-the district attorney, who moved for judgment, admitting, for the purposes of his motion, that the answer was true, but contended that it was insufficient. On the next day an order for judgment was made in favor of the United States for the amount claimed. On the 27th day of July, 1864, the district attorney moved that the order for judgment in favor of the United States be vacated and a new trial granted, which motion was granted, notwithstanding the objections of counsel for defendant. No ground was alleged for this motion, and no previous notice of it had been given. On the 6th day of August, 1864, a new trial was had (against which defendant's counsel protested) and judgment given for the United States for $1,388.10, "payable in gold coin of the United States for duties." The following errors were assigned: 1. In making the order for judgment in favor of the United States, on the 17th day of June, 1864. 2. In setting aside said order for judgment; in granting a new trial; and in retrying said cause. 3. In not finding as matters of fact, that the allegations of the answer are true. 4. In rendering judgment in favor of the United States. 5. In rendering judgment for the United States, "payable in gold coin of the United States for duties." Mr. Edmond L. Goold, for plaintiff in error: The first and second assignments of error, although apparently inconsistent with each other, are not really so. The defendant was, under the admissions made by the plaintiff, on the motion for judgment on the pleadings, entitled to a judgment in his favor. For the purposes of that motion, the district attorney admitted that the answer was true, and read it in evidence. If, therefore, we can show that the answer was sufficient, we are entitled to judgment; and if we are entitled to judgment, the order for judgment in favor of the United States was erroneous. The error in setting aside this order for judgment, and in granting a new trial, consist ed in this: Suppose we had a hundred witnesses at the first trial, and the plaintiff should, by admitting our answer to be true, prevent us from producing any of our witnesses. It is unjust to set aside the verdict at the bidding of the plaintiff, and require us to summon the hundred witnesses anew, and pay the fees for their attendance, to say nothing of time or trouble. that the court erred in not finding, as matters of From these considerations, it also follows, fact, that the allegations of the answer are | debt for current money, and could have been true. Do, then, the facts, as stated in the an- discharged by the payment of such money. swer, constitute a defense to the action? This 3. Judgments cannot be made payable in is the subject of the 4th assignment of error. any particular form. 4. The court erred in rendering judgment in favor of the United States. 1. The act of July 14, 1862, was not in force in San Francisco at the time of importation and entry. The answer shows that neither the collector nor the defendant had any knowledge of the passage of said act, and that no copy of said act had reached the state of California at the time of the entry and delivery of the goods. We contend that revenue laws which affect trade do not go into effect until they are promulgated, and that such promulgation is made by delivering a copy of the laws to the collector. We submit this point upon the authority of the case of The Ship Cotton Planter, decided by Judge Livingston, and reported in 1 Paine, C. C. 23. 2. But admitting the act of Congress of July 14, 1862, to have been in force, the credit system having been abolished, the defendant is not liable and the government must look to the collector. The only credit which the law now authorizes, is where the goods are warehoused under the laws of 1846. The collector cannot be heard to say that he voluntarily delivered the goods without collecting the duties. Longfellow v. Quimby, 29 Me. 196. 3. Importers are no longer liable for duties where the goods have been destroyed by accident; and the defendant having sold the goods without notice that they were subject to any further duties. the goods are, in point of law, to be considered as having been actually destroyed by accident. Act of 28th of March, 1854, § 8. It is a rule of construction of remedial laws, that what is within the mischief is within the remedy. In this case the importer, without any notice or knowledge of the act raising the duties, sold the goods. He had no opportunity of including the increased rate of duty in the price of the goods. The loss was as actual and as accidental as if it had been occasioned by fire. The loss was literally occasioned by "other casualty." 4. The decision of the collector as to the rate of duty at the time of entry was final and conclusive, so far as the importers were concerned. Act of 3d of March, 1857, § 5. The decision of the collector is final as to the "liability to duty, or exemption therefrom." The collector having decided at the time of entry that these goods were exempt from any higher rate than that which was paid, such decision is, by the very terms of the statute, final, no appeal having been taken, or action brought within the time specified. 5. The court below erred in rendering judgment for the United States, "payable in gold coin of the United States for duty." In support of this assignment of error, we shall endeavor to maintain the following propositions: 1. Duties are not, in terms, payable in gold coin of the United States. 2. After the goods were delivered to the importer, his liability, if any, was that of a mere 4. A judgment is a merger of the original demand; and the insertion of the words "for duties" is error. 1. Duties are not in terms payable in gold coin. They are payable in "money of the United States." Section 74 of the act of 2d of March, 1789; act of 21st of February, 1857. 2. There are, however, objections to this judgment, of a more solid and fundamental character. It is only upon the theory of a debt due by the importer to the government, that a personal action, and particularly an action of debt, can be at all supported. It has been repeatedly so decided by the Federal courts. U. S. v. Lyman. 1 Mason, 498; Meredith v. The U. S. 13 Pet. 493. That unpaid duties, so far as they are recoverable by action, are a debt, appears further from the fact that they bear interest, which they would not do as a mere tax. Shaw v. Peckett, 26 Vt. 482. We are aware that it has been decided in some states that a tax is not a debt. In most of the cases, however, where it has been decided that a tax is not a debt, it has also been held that no personal action can be maintained to recover it. Camden v. Allen, 2 Dutch. 398; Pierce v. Boston, 3 Met. 520; Shaw v. Peckett, 26 Vt. 482. The Federal courts have uniformly held duties to be debts, and that an action of debt is the proper proceeding for their recovery. When the goods are delivered to the importer, duties are converted into debts. They are not, after such delivery, any longer duties; they become debts. The government is armed with two remedies, each distinct from the other: First. The right to enforce the lien on the goods by an ex parte sale, and at such sale to require payment in the specific coin or property in which the duty is payable. Second. To sue the importer in an action of debt, to recover the pecuniary value of the duty. Perry v. Washburn, 20 Cal. 318. It follows, therefore, that after the government has lost its lien upon the goods, inasmuch as duties are payable in money, there is a mere debt due, by the importer to the government, for the amount of the duty; and that such debt, not being, strictly speaking, duty, may be discharged by any lawful money of the United States. “An universal silence," said Buller, J., in Le Caux v. Eden, in Westminster Hall, "on a subject which so frequently gives occasion for litigation, is a strong argument to prove that no such action can be maintained.” Even where a contract is, in terms, payable in gold coin, courts of law have no power to render a judgment payable in such coin, or otherwise than for current money. See, particularly, the cases of Wood v. Bullens, 6 Allen, 516; Shoenberger v. Watts, 1 Amer. Law Reg. N. S. 558. Mr. James Speed, Atty. Gen., and Mr. Delos Lake, for the United States, defend- | for duties." The amendment, made during the ant in error. Mr. Chief Justice Chase delivered the opinion of the court: The United States sued the plaintiff in error for duties on certain merchandise imported by him into the port of San Francisco, on the 13th August, 1862. The defense was, payment of the duties as ascertained by the collector of the port under the law in force prior to the 14th July, 1862, in ignorance on his part, and on the part of the importer, of the enactment of that date imposing higher rates. It was alleged that the existence of the act of July was unknown in California until after the duties had been assessed and paid, and the goods delivered to the importer and sold; and it was insisted, that under the circumstances, the government was concluded by the act of the collector in assessing and receiving the duties under the act previously in force. term, was clearly within the power of the court. EVANS ROGERS, Piff. in Err., v. THE CITY OF KEOKUK. City of Keokuk had power to issue bonds in aid of railroad, and levy tax to pay interestlegislature may legalize bonds-purchaser not charged with defect in their issue. Legislature of Iowa had the power to authorize the city of Keokuk to subscribe for and take stock The cause was tried by the court, under sub- in a railroad company, and to issue its bonds in mission by the parties, without a jury. Wit-payment therefor, and to lay a tax to pay the interest upon said bonds. nesses were examined and counsel heard, and the court found: (1) That the defendants imported the goods as alleged; (2) that the duties on the importation under the law then in force, amounted to $1,432.55; (3) that the defendant, now plaintiff in error, paid on account of said duties, $211.70, leaving due $1,240.85; (4) that, as a conclusion of law, the United States were entitled to judgment for the balance due, with interest, amounting to $1,388. 10, payable in gold coin for duties, with costs. These findings excluded the defense set up by the answer upon the facts, and judgment was entered accordingly. The act of such legislature, legalizing the issue of county, city, and town corporation bonds in the counties of Lee and Davis, gave validity to said bonds, notwithstanding any informality or illegality in their issue. The plaintiff having purchased the bonds in open market, for value, is not charged with any defect or irregularity in their issue. [No. 94.] Submitted Jan. 4, 1866. Decided Jan. 22, 1866. Otween the Judges of the Circuit Court of Na certificate of division of opinion bethe United States for the District of Iowa. The plaintiff sued in the court below upon interest coupons attached to certain bonds, dated January 1, 1856, signed by the mayor and recorder of Keokuk, issued to the Keokuk, Fort Des Moines & Minnesota Railroad Company, for subscription to its stock, under an ordinance of the city of Keokuk passed 20th November, 1855; and also sued upon coupons Exceptions were taken to various rulings in the progress of the cause, and are made part of 326*] the record. *The first two related to matters wholly within the discretion of the circuit court, and are not reviewable here. This is not merely settled by repeated decisions, but is expressly directed by an act of Congress pre-attached to other bonds signed in the same scribing the limits of this court's jurisdiction upon writs of error to the circuit court of California. Act of Feb. 19, 1864, ch. 11 (13 Stat. 7). The third exception related to the examination of witnesses on the trial. This exception must rest on the assumption that, inasmuch as the pleadings consisted only of claim and answer, the answer must be taken as true, and could not be contradicted by witnesses. But the statute of the state, which has been adopted as a rule by the circuit court of the United States for the district of California, expressly declares that new matter in an answer shall, on trial, be deemed controverted by the adverse party. 2 General Laws of California, 5005. Under that statute the answer of the defendant below could not be taken as true. Witnesses, therefore, were properly examined. manner, issued to the Keokuk, Mount Pleasant, & Muscatine Railroad, for subscription to its stock, under ordinance passed 5th February, 1856. The only questions arising in the case are upon the construction of the laws of Iowa, and the legal effect of certain facts agreed as follows: 1st. The plaintiff purchased the coupons sued on in open market, for value, before maturity. 2d. The coupons were attached to bonds issued by the proper officers of the city of Keokuk, in accordance with an ordinance of the city, after a vote as prescribed by law, and were delivered to said railroad companies. That said railroads are private corporations, created for pecuniary profit and for the construction of railroads without the limits of the city. That the bonds were delivered by the mayor of Keokuk to said companies, to enable them to build two railroads from the city of Keokuk to the termini of said roads, and the city received no other consideration for the NOTE. Statutes legalizing invalid The only other exception is to the form of the judgment, which was originally for the amount due, payable in gold coin, for duties; and afterwards, during the term, amended by order of the court so as to make it "payable in gold and silver coin, for duties." The objection is to the amendment and to the statement in the judg ment that it is "payable in gold and silver coin, bonds-see note, 27 L. R. A. 696. municipal bonds than the benefit it expected to derive | subscribe for and take stock in a railroad comfrom the building of the roads and the stock pany and to issue its bonds in payment therereceived therefor. for, and to lay a tax to pay the interest upon said bonds." The laws applicable to these facts are as follows: 1st. "An act to incorporate the city of Keokuk," approved December 13th, 1848. 2d. "An act to amend an act entitled 'An Act to Incorporate the City of Keokuk,'" passed December 13th, 1838, approved January 22d, 1853. 3d. "An act to amend the charter of the city of Keokuk," which took effect July 26th, 1856. 4th. "An act legalizing the issue of county, city, and town corporation bonds in the counties of Lee and Davis," approved 29th January, 1857, being chapter 258, p. 447, of Session Acts of 1857. Upon the foregoing facts, stated in a special verdict and law, the plaintiff moved for judgment, on argument of which motion this question occurred: 1st. Whether, under the Constitution of Iowa of 18th May, 1846, the legislature could authorize the defendant to subscribe to the stock of the railroad company, and issue its bonds in payment thereof. Upon which point the opinions of the judges were opposed. 2d. And also this question,-whether the legislature had conferred such power upon the defendant. It is not necessary to vindicate the correctness of this decision by further argument. 2. The legislature having such authority, the "act legalizing the issue of county, city, and town corporation bonds in the counties of Lee and Davis," gave validity to said bonds, notwithstanding any informality or illegality in their issuing. This is a sufficient answer to the second and third questions proposed. 3. The plaintiff, having purchased the bonds in open market, for value, is not charged with any defect or irregularity in their issue. The fifth and sixth questions proposed, each include all that is presented, and need not be answered. Submitted Jan. 4, 1866. Decided Jan. 22, 1866. 3d. And also this question,-whether the legislature had power to pass said act, legaliz-IN ERROR to the Circuit Court of the United ing the acts of the city of Keokuk. 4th. And also this question,-whether the plaintiff, having purchased the bonds in open market before dishonor, was charged with notice of any defect, illegality and irregularity in their issue. 5th. And also this question, whether, under the Constitution and laws of Iowa, the city of Keokuk had authority to make these bonds and deliver the same to the railroad companies. 6th. And also this question, whether, under the Constitution and laws of Iowa in force at the time of the issue of the bonds, and those subsequently enacted, the plaintiff was entitled to judgment. Mr. F. A. Dick for plaintiff in error. Mr. Justice Grier delivered the opinion of the court: It might be objected to the certificate of division of opinion in this case, that it is a submission of the whole case, first in separate propositions and afterwards in a point containing all the rest. When the case was tried below, the questions on which it depends had not been decided by this court, and were considered doubtful, having received in the courts of Iowa contrary solutions; but having since that time been decided in this court in other cases involving the same questions, we need only to refer to them, as containing answers to all the questions necessary to the decision of this case. The case of Gelpcke v. Dubuque, 1 Wall. 202, 17 L. ed. 524, will afford an answer to the first, which is the most important question submitted, to wit: "That the legislature of the state of Iowa had the power to authorize the said municipal corporation, the city of Keokuk, to States for the District of Iowa. The plaintiff sued the county of Lee, state of Iowa, in the court below, to recover several instalments of interest evidenced by coupons attached to certain bonds, dated 1st January, 1857, signed by S. Bayles, county judge, purporting to be the bonds of the county of Lee, issued under authority of a vote of the people of Lee county, at an election held 10th September, 1856, authorizing the county judge to subscribe to the stock of the Keokuk, Muscatine & Mount Pleasant Railroad Company, and to issue bonds therefor. The plaintiff gave in evidence the election proceedings of the people of Lee county, held 10th September, 1856, also the laws of Iowa and decisions of the supreme court thereon, up to the time the bonds were issued. The plaintiff asked instructions declaring the validity of the bonds under the laws in evidence, which the court refused. At defendant's instance the court instructed: 1st. That at the date of the coupons sued in this case, there was no statute law in the state of Iowa authorizing the issue thereof. 2d. That the election proceedings given in evidence were void. And that the act of January 25th, 1857, called the Curative Act, gave no validity to said bonds. It follows that said bonds, if based upon said submission and said act of legislature, were and are issued without authority of law, and are fraudulent and void. The court, on its own motion, instructed the jury. "That under the evidence the bonds were issued without authority of law, and are void." Mr. F. A. Dick for plaintiff in error. |