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force, relating to the opening, widening and improving of streets in the City, should apply to that part of Broadway thus laid out, and to proceedings under the Act, so far as they were applicable.

And the Act required the Corporation counsel, when the commissioners had filed their maps and certificates, to take the proper steps on behalf of the City to acquire title to the lands needed, and for that purpose to apply to the Supreme Court, at any special term thereof, for the appointment of Commissioners of Estimate and Assessment, who were authorized to assess upon the City such parts of the expenses of the improvement as in their opinion would be just and equitable, not exceeding one third of the whole, and to designate in their report, which was to be made within eight months after their appointment, the time for the opening of the

street.

in part, as the court or justice should direct.

Under this Act, upon notice to the parties interested, a motion was made on behalf of the City at a special Term of the Supreme Court, to vacate the order. Upon this motion affidavits were read and the parties were heard by counsel. The court vacated the order of confirmation and appointed new commissioners to amend and correct the report, and make a new award of damage and assessment. In its order vacating the confirmation and as a basis for the order, the court declared that it appeared that there had been error, mistake, irregularity and illegal acts in the proceedings, and that the assessments for benefit and award for damages had been unfair, unjust, inequitable and oppressive as respects the City and others.

The present action is brought to recover the award of $40,000 made to the plaintiff by the report of the first commissioners, the plaintiff re-alleging in his complaint the ownership of the leasehold, estate taken, the proceedings for the estimate and assessment of damages and the confirmation of the Report by the Supreme Court on the 28th of December, 1870, and insisting that, by force of the Act of the Legislature and the laws therein referred to, the proceedings were final and conclusive, and that the fee of the property had vested in the City, and the right to the payment of the award had vested in the plaintiff.

The commissioners thus appointed were quired to make a just and equitable estimate and assessment of the loss and damage, if any, over and above the benefit and advantage, or of the benefit and advantage, if any, over and above the loss and damage, as the case might be, to the respective owners, lessees, occupants or owners and persons entitled to or interested in the lands and premises required, or affected by the proceedings, the assessment for benefit and advantage to be confined within certain designated limits.

The Act further provided that all awards of the City should be placed by the Chamberlain (the Treasurer of the City) to the credit of the sinking fund, and that all other awards should be paid by him to the parties entitled thereto. Under this Act, the measures authorized were taken and three Commissioners of Estimate and Assessment were appointed by the Supreme Court, who made a report of their proceedings, which was confirmed by order of the court on the 28th of December, 1870.

The report included, among numerous other awards, an award of $40,000 to the plaintiff as his damages for taking a portion of a leasehold estate held by him on Broadway, and it fixed the time for the actual opening of the new street at the 31st of December, 1870. On the 27th of February, 1871, nearly two months after the confirmation of the report, the Legislature passed an Act authorizing an appeal from the order of confirmation on behalf of the City, to be taken at any time within four months from the date of its entry. The Act also provided that within this period, notwithstanding the pendency of the appeal, a motion might be made on behalf of the City to any Justice of the Supreme Court, at a special Term or chambers, to vacate the order; and made it the duty of the court or justice to hear the same, and declared that if it should appear that there was any error, mistake or irregularity or illegal act in the proceedings at any stage, or that the assessment for the benefit or the awards for dam age, or either of them, had been unfair and unjust, or inequitable and oppressive as respects the City or any person affected thereby, the court or justice should vacate the order of confirmation, which should then be void, and refer the matter back to new commissioners, who should proceed to amend and correct the report, or to make a new assessment in whole or

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In answer to this action the City set up the proceedings by which the award was vacated, and insisted that the title to the premises mentioned had not vested in the City, and that the right to the amount awarded had not vested in the plaintiff.

To this plea the plaintiff demurred on the ground that the Act of February 27, 1871, was repugnant to the Constitution of the United States in that it impairs the obligation of a contract, and to the Constitution of the State, in that it undertakes to devest a vested right contrary to the law of the land and without due process of law.

The court overruled the demurrer, sustained the plea as a bar to the action and gave judgment for the defendant. To reverse that judgment the case is brought to this court, and here the plaintiff renews the same objections urged on the demurrer in the court below.

As a basis for his argument in their support, he assumes that under the statute of the State relating to the opening and improvement of streets in the City of New York, passed in 1813, and which is one of the laws referred to in the Act of 1869, and made applicable to the improvement authorized, the proceedings of the commissioners, when their report was confirmed by the Supreme Court, were so far final and conclusive of the right of the City to the property and of the plaintiff to the award, that neither were subject to any legislative or judicial interference.

The same position here urged was relied upon in the Supreme Court and the Court of Appeals of the State on the appeal from the order vacating the confirmation taken by one of the parties to whom an award had been rendered. Matter of Widening Broadway, 61 Barb., 483; S. C., 49 N. Y., 150.

And in both courts it was held that the provision in the Statute of 1813, which declares that the report of the Commissioners of Estimate

and Assessment, when confirmed by the court, | losses which will accrue to the owner of propshall be final and conclusive," only meant that erty when taken for public use, and thus the no appeal should lie from the order of confirma- compensation to be made to him is in the nature tion to a higher court, and that it did not pre- of an inquest on the part of the State, and is nec clude an application to the court to vacate the essarily under her control. It is her duty to see order for mistake, irregularity or fraud in the that the estimates made are just, not merely to proceedings; that the Supreme Court had power the individual whose property is taken, but to to hear such motions in ordinary cases of judg- the public which is to pay for it. And she can ments and orders in suits there pending, and to that end vacate or authorize the vacation of that no reason existed against the possession or any inquest taken by her direction, to ascertain exercise of the power in cases of this character. particular facts for her guidance, where the proThe provision in question, said the Court of Ap- ceeding has been irregularly or fraudulently peals, "plainly never intended to give a vested conducted, or in which error has intervened, and interest in a mistake and irregularity or fraud, order a new inquest, provided such methods of whereby important rights of property were ac procedure be observed as will secure a fair hearquired or lost. It had reference simply to an ing from the parties interested in the property. appeal upon the merits, and is satisfied with Nor do we perceive how this power of the State that. All judgments are liable to be set aside can be affected by the fact that she makes the for fraud, mistake or irregularity, and a vested finding of the commissioners upon the inquest interest therein is subject to that liability." subject to the approval of one of her courts. That is but one of the modes which she may adopt to prevent error and imposition in the pro

The Supreme Court held that the Act of 1871 | was constitutional. The Court of Appeals held that, independent of the Act and without pass-ceedings. There is certainly nothing in the fact ing upon its validity, the Supreme Court had authority to set aside the order upon the grounds stated.

If the views of either of these courts be correct, they dispose of the questions in this case. And the construction of the statute of the State by the Court of Appeals, and its decision as to the powers of the Supreme Court of the State to correct or set aside its own judgments, upon application within reasonable time, for mistake, irregularity or fraud, are conclusive upon us. There is, therefore, no case presented in which it can be justly contended that a contract has been impaired. It may be doubted whether a judgment not founded upon an agreement, express or implied, is a contract within the mean ing of the constitutional prohibition. It is sometimes called by text writers a contract of record, because it establishes a legal obligation to pay the amount recovered and, by fiction of law, where there is a legal obligation to pay, a promise to pay is implied. It is upon this principle, says Chitty, that an action in form ex contractu will lie on a judgment of a court of record. Chit. Cont., Perk. ed., 87. But it is not perceived how this fiction can convert the result of a proceeding, not founded upon an agreement, express or implied, but upon a transaction wanting the assent of the parties, into a contract within the meaning of the clause of the Federal Constitution which forbids any legislation impairing its obligation. The purpose of the constitutional prohibition was the maintenance of good faith in the stipulations of parties against any state interference. If no assent be given to a transaction, no faith is pledged in respect to it, and there would seem in such case to be no room for the operation of the prohibition.

In the proceeding to condemn the property of the plaintiff for a public street, there was nothing in the nature of a contract between him and the City. The State, in virtue of her right of eminent domain, had authorized the City to take his property for a public purpose, upon making to him just compensation. All that the Constitution or justice required was that a just compensation should be made to him, and his property would then be taken whether or not he assented to the measure.

The proceeding to ascertain the benefits or

that an appeal is not allowed from the action of the court in such cases, which precludes a resort to other methods for the correction of the finding where irregularity, mistake or fraud has intervened.

Until the property is actually taken, and the compensation is made or provided, the power of the State over the matter is not ended. Any declaration in the statute that the title will vest at a particular time, must be construed in subordination to the Constitution, which requires. except in cases of emergency admitting of no delay, the payment of the compensation, or provision for its payment, to precede the taking,or, at least, to be concurrent with it. The Statute of 1818 would also seem so far to modify the Act of 1813 as to require a formal acceptance of the land on the part of the corporation before the title can vest. Strang v. Rub. Co., 1 Sweeny, 86, 87.

The objection to the Act of 1871, that it impairs the vested rights of the plaintiff, and is, therefore, repugnant to the Constitution of the State, is already disposed of by what we have said upon the first objection. There is no such vested right in a judgment, in the party in whose favor it is rendered, as to preclude its re-examination and vacation in the ordinary modes provided by law, even though an appeal from it may not be allowed; and the award of the commissioners, even when approved by the court, possesses no greater sanctity. Judgment affirmed.

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Where the printed form of a bond, with its blank spaces, was signed by a surety and delivered to the principal, with authority to fill the blanks and perfect the instrument, as a bond to secure his faithful service in the office of Collector of Internal Revenue, and to present it, when perfected, to the proper officer of the Government for approval and acceptance, such surety, when sued on the bond, is, in law and equity, estopped from claiming, as against the Government, the benefit of his private instructions to such principal, or a private agreement with him as to the penalty to be inserted in

the bond, or as to other sureties.

[No. 192.]

from Dair v. U. S., 16 Wall.. 1 [83 U. S., XXI., 491]. The printed form, with its blank spaces, was signed by Butler and delivered to Emery, with authority to fill the blanks and perfect the instrument, as a bond to secure his faithful serv ice in the office of Collector of Internal Revenue. He was also authorized to present it, when perfected, to the proper officer of the Government for approval and acceptance. If accepted, it was expected that he would at once be permitted to enter upon the performance of

Submitted Feb. 12, 1875. Decided Feb. 22, 1875. the duties of the office to which it referred.

Ν

IN ERROR to the Circuit Court of the United

States for the Eastern District of Tennessee. This was an action of debt in the court below, on a joint and several internal revenue bond executed by Benjamin B. Emery, as principal, and by Roderick R. Butler, Ethan A. Sawyer and William Choppin as sureties, in the sum of $15,000. Butler defended on the ground that, at the time he signed and affixed his seal to the bond, it was a mere printed form, with blank spaces for the names, dates and amounts to be inserted therein; and that the blanks were not filled, and there was no signature thereto, except Emery's; that Emery promised, if Butler would sign the bond, he would fill up the blanks with the sum of $4,000, and would pro cure two additional securities in the District of Columbia, each of whom was to be worth $5,000; and that the bond was delivered to Emery with the understanding and agreement that the bond otherwise was not to be binding on the defendant, but was to be returned to him; that the defendant never afterward ratified or acknowledged the validity of the bond; that the other sureties did not reside in the District of Columbia, and were wholly insolvent and worthless; and that Emery obtained the signature by false and fraudulent representations. The circuit judge ruled that this was no defense to the action; a verdict was taken for the plaintiffs, and the defendant excepted and brought this writ

of error.

Messrs. S. Shellabarger, H. Maynard and J. M. Wilson, for plaintiff in error.

Mr. C. H. Hill, Asst. Atty-Gen., for defend

ant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

We cannot distinguish this case in principle

up afterwards by his express parol authority is valid. The authority to fill the blanks, is also authority to redeliver it. Gibbs v. Frost, 4 Ala.. 720; Newton v. Beard, 6 W.Va., 110; Belle v. Keefe, 13 La. Ann., 524; Spencer v. Buchanan, Wright, 583; Sigfried v. Levan, 6 Serg. & R., 308; S. C., 9 Am. Dec., 427; Costen's Appeal, 13 Pa. St., 296; Wiley v. Moor, 17 Serg. & R., 440; Beary v. Haines, 4 Whart., 20: Inhab., etc., v. Huntress, 53 Me., 89.

Bond with obligee blank is a nullity. Agent authorized by parol cannot fill in name of obligee. Upton v. Archer, 41 Cal.. 85; S. C., 10 Am. Rep., 266; Preston v. Hull, 23 Gratt., 600; S. C., 14 Am. Rep., 153; U. S. v. Nelson, 2 Brock., 64; contra; Field v. Stagg, 52 Mo., 534; S. C., 14 Am. Rep., 435; Vose v. Dolan, 108 Mass., 155; S. C., 11 Am. Rep., 331; Van Etta v. Evenson, 28 Wis., 33; S. C., 9 Am. Rep., 486; Edelin v. Saunders, 8 Md., 118; Vliet v. Cainp, 13 Wis., 198.

A paper signed and sealed in blank and afterwards filled up under a verbal authority to do so, is void unless afterwards delivered or acknowledged

It is true that, according to the plea, this authority was accompanied by certain, private to derstandings between the parties, intended to limit its operations, but it was apparently unqualified. Every blank space in the form was open. To all appearances, any sum that should be required by the Government might be designated as the penalty, and the names of any persons signing as co-sureties might be inserted in the space left for that purpose. It was easy to have limited this authority by filling the blanks, and the filling of any one was a limitation to that extent. By inserting, in the appropriate places, the amount of the penalty or the names of the sureties or their residences, Butler could have taken away from Emery the power to bind him otherwise than as thus specified. This, however, he did not do. Instead, he relied upon the good faith of Emery, and clothed him with apparent power to fill all the blanks in the paper signed, in such appropriate manner as might be necessary to convert it into a bond that would be accepted by the Government as security for the performance of his contemplated official duties. It is not pretended that the acts of Emery are beyond the scope of his apparent authority. The bond was accepted in the belief that it had been properly executed. There is no claim that the officer who accepted it had any notice of the private agreements. He acted in good faith, and the question now is, which of two innocent parties shall suffer.

The doctrine of Dair's case is that it must be Butler, because he confided in Emery and the Government did not. He is, in law and equity, estopped by his acts from claiming, as against the Government, the benefit of his private instructions to his agent.

The judgment is affirmed.

Cited-95 Ill., 612; 35 Am. Rep., 184.

and adopted by the person so signing it. Ayers v. Harness, 1 Ohio, 368; Perminter v. McDaniel, 1 Hill So. Car., 267; Wynne v. Governor, 1 Yerg., 149; Byers v. McClanahan, 6 Gill. & J., 250; contra: Wiley v. Moor, 17 Serg. & R., 438; Williams v. Crutcher, 5 How. (Miss.), 71; S. C., 35 Am. Dec., 422.

Bond signed before name of obligee or amount is inserted cannot be recovered on, although payments have been made on it. Barden v. Southerland, 7 N. C., 528; Preston v. Hall, 12 Am. L. Reg., 699; Squire v. Whitton, 1 H. L. Cas., 333.

Such a bond is not a deed nor can it be made such by the filling of the blank, by an agent authorized by parol. Davenport v. Sleight, 2 Dev. & B., 381; S. C., 31 Am. Dec., 420; Graham v. Holt, 3 Ired. L., 300; S. C., 40 Am. Dec., 408.

A surety who signs an official bond while there are blanks for other sureties, and delivers it in that condition to the principal obligor, who fills up the blanks, will be held liable. Wright v. Harris, 31 Iowa, 272: Webb v. Baird, 27 Ind., 368; The State v. Pepper, 31 Ind., 76.

NATHAN B. HILL, as Administrator of SAM- does show that defendant was not served with

UEL HILL, Piff. in Err.,

v.

CYRUS P. MENDENHALL.

(See S. C., 21 Wall., 453-456.)

Appearance gives jurisdiction-attorney's ity-inadmissible evidence.

process, but it also shows his voluntary appearance by an attorney. If this appearance was authorized, it is as effective for the purposes of jurisdiction as an actual service of summons. When an attorney of a court of record appears in an action for one of the parties, his authorauthority, in the absence of any proof to the contrary, will be presumed. A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority.

1. Where the record of a judgment sued upon shows that defendant was not served with process, but also shows his voluntary appearance by an attorney; if this appearance was authorized, it is as effective for the purposes of jurisdiction as an act

ual service of summons.

2. A record which shows such an appearance will bind the party until it is proven that the attorney acted without authority.

3. Extrinsic evidence to contradict the record by showing that the appearances by the attorney was unauthorized, is not admissible under a plea of nul tiel record. A defense requiring evidence to contradict the record must be formally pleaded.

[No. 127.]

Submitted Jan. 7, 1875. Decided Feb. 22, 1875.
ERROR to the Circuit Court of the United
States for the Eastern District of North Car-

IN

olina.

The case is fully stated by the court.
Messrs. W. A. Graham and P. Phillips,
for plaintiff in error.

No counsel appeared for defendant in error.
Mr. Chief Justice Waite delivered the opin-

ion of the court:

Since the cases of Thompson v. Whitman, 18 Wall., 457 [85 U. S., XXI., 897], and Knowles v. Gas. Co. [ante, 70], it may be considered as settled in this court, that when a judgment the defendant may contradict the record to the rendered in one State is sued upon in another, extent of showing that, in point of fact, the court rendering the judgment did not have jurisdiction of his person. If such showing is made, the under such circumstances has no effect outside action must fail, because a judgment obtained of the State in which it is rendered.

that the court did have jurisdiction, extrinsic But if it appears on the face of the record

evidence to contradict it is not admissible under is to inform the court and the parties of the facts a plea of nul tiel record. The office of pleading and the parties, that they may know what to in issue; the court, that it may declare the law, meet by their proof. Nul tiel record puts in issue only the fact of the existence of the record, This was an action in the Circuit Court of the and is met by the production of the record itUnited States for the Eastern District of North self valid upon its face, or an exemplification Carolina, upon a judgment in one of the courts duly authenticated under the Act of Congress. of record in the State of Minnesota. The plea A defense requiring evidence to contradict the was nul tiel record alone. Upon the trial of the record must necessarily admit that the record issue made by this plea, the plaintiff introduced exists as a matter of fact, and seek relief by in evidence an exemplification of the record avoiding its effect. It should, therefore, be forsued upon. This record showed upon its face mally pleaded, in order that the facts upon that the defendant was, at the time that action which it is predicated may be admitted or put was commenced, a resident of the State of North in issue. Under the common law system of Carolina; that the summons issued had been re- pleading this would be done by a special plea. turned, "Not served"; that thereupon, by or- The equivalent of such a plea is required under der of the court, service was made by publica- any system. The precise form in which the tion, and that after such publication the defend-statement should be made will depend upon the ant appeared by attorney, filed an answer verified by an agent, and voluntarily submitted himself to the jurisdiction of the court.

The bill of exceptions shows that, after introducing the record, the plaintiff called a witness, who gave evidence tending to prove that the party who verified the answer was at the time an agent of the defendant, for the transaction of his business in Minnesota. The defendant then testified in his own behalf, and in substance denied the agency.

The circuit court found that there was such a record as was sued upon; but because it did not appear in the exemplification or from the evidence, that summons had been served upon the defendant, gave judgment in this action in his favor. This ruling of the circuit court is now assigned for error.

It is true the record sued upon in this case

NOTE.-Service of notice to appear and defend; when necessary to validity of a judgment. See note to Hollingsworth v. Barbour, 29 U. S. (4 Pet.), 466. Effect of appearance by counsel or attorney in an action; unauthorized appearance; what is an appearance. See note Shelton v. Tiffin, 47 U. S. (8 How.), 163.

practice of the court in which it is to be used, but it must be made in some form. Defects appearing on the face of the record may be taken advantage of upon its production under a plea of nul tiel record; but those which require extrinsic evidence to make them apparent, must be formally alleged before they can be proven. This we believe to be in accordance with the practice of all courts in which such defenses have been allowed, and it is certainly the logi cal deduction from the elementary principles of pleading. Bimeler v. Dawson, 4 Scam.,538; Harrod v. Barretto, 2 Hall., 302; Shumway v. Stillman, 6 Wend., 447; Starbuck v. Murray, 5 Wend., 148; Price v. Hickok, 39 Vt., 292; Judkins v. Ins. Co., 37 N. H., 482; Holt v. Alloway, 2 Blackf., 108; Moulin v. Ins. Co., 4 Zab., 222; Gilman v. Lewis, 15 Me., 452; Aldrich v. Kinney, 4 Conn., 380. In Knowles v. Gas Co., the issue was directly made by an averment of ju risdiction in the complaint and a denial in the answer, and in Thompson v. Whitman by plea and replication.

It follows that, upon the pleadings in this case, judgment should have been given for the plaintiff after proof of the record, showing as

it did jurisdiction of the defendant by reason of| his appearance by attorney. As both parties, however, submitted evidence without objection upon the question of the authority of the attorney so to appear, we should have held them to a waiver of the proper pleadings to present that issue if it appeared affirmatively that this evidence had been considered and passed upon by the court below. Such, however, is not the case. Judgment was given for the defendant upon the sole ground that it did not appear from the record or the evidence that summons had been served. This was error if the defendant had in fact voluntarily appeared. The record upon its face furnished evidence of such an appearance. The court did not find that this evidence was not in accordance with the facts.

The judgment of the Circuit Court is, therefore, reversed and the cause remanded, with instructions to award a venire de novo, and permit such amendments to the pleadings as may be necessary to present fairly for trial the real issues between the parties.

Cited-4 Hughes, 67, 119: 84 Pa. St., 537; 30 Gratt., 276; 32 Am. Rep., 679; 6 Neb., 427; 29 Am. Rep., 368.

Ex parte IN THE MATTER OF CHARLES SAWYER ET AL., Petitioners.

(See S. C., 21 Wall., 235-240.)

Mandamus to Circuit Court-not issued to control its discretion-revocation of order.

1. Where this court, by its mandate, has required the Circuit Court to proceed with the execution of its decree, if the court refuses to proceed, this court may, by mandamus, compel it to do so, but cannot control its discretion while proceeding. 2. Where, in an admiralty case, the Circuit Court upon appeal from the district court affirmed its decree, and further ordered that unless an appeal was taken from the decree, judgment should be entered

and execution issued against the sureties of the appellant and an appeal was taken to this court, and the judgment there affirmed, upon the return of the mandate of this court with directions that the Circuit Court should proceed as right and justice should require, the Circuit Court was left free to determine for itself what was thus required.

3. If, in its opinion, the order in respect to the judgment and execution against the sureties should

be carried into effect, it might so adjudge; but if, upon further consideration, right and justice should seem to require a revocation of that order, there was nothing in the mandate to prevent it from so deciding.

4. This court will not issue a mandamus to require

the Circuit Court to enter such decree of judgment

and execution against the sureties.

[No. 5. Original.]

Submitted Nov. 20. 1874. Argued Feb. 17, 1875. Decided Mar. 1, 1875.

PETITION for mandamus.

The case is fully stated by the court. Messrs. John Lathrop and C. H. Hill, for petitioners:

Mandamus is an appropriate remedy in this

case.

"It issues to the judges of any inferior court, commanding them to do justice, according to the powers of their office, whenever the same is delayed." 3 Bl. Com., 110.

The same learned writer remarks that it may be issued in some cases where the injured party has also another more tedious method of redress; and in all cases where there is no other remedy. I

3 Bl. Com., 110; Perkins v. Fourniquet, 14 How., 328; U. S. v. Peters, 5 Cranch, 115; Staf ford v. Union Bank of La., 17 How., 275 (58 U. S., XV., 101): Ex parte Dubuque & Pacific R. R. Co., 1 Wall., 69 (68 U. S., XVII., 514).

Assuming that the judgment entered in the Circuit Court in November, 1870, was a judgment against the sureties as well as against the principals, it is clear that, after the mandate from the Supreme Court affirming the judgment, the Circuit Court had no power to revise the judgment.

Sibbald v. U. 8., 12 Pet., 488; Er parte Dubuque & Pacific R. R. Co. (supra).

Thus, if a case, after having been before the Supreme Court, comes before it again, the objection cannot be taken that the court had no jurisdiction over the first appeal.

Washington Bridge Co. v. Stewart, 3 How., 413; Whyte v. Gibbes, 20 How., 541 (61 U. S., XV., 1016); Withenbury v. U. S. 5 Wall., 819 (72 U. S., XVIII.,613); see, also, Ex parte Morris v. Johnson, 9 Wall., 605 (76 U. S., XIX., 799).

The judgment against the sureties rendered by the Circuit Court, in November, 1870, was a final judgment against them, and not a conditional judgment.

If the words, "unless an appeal be taken from this decree within the time prescribed by law," be stricken out, it is clear that the judg ment is final against the sureties and against the make no difference in the effect of the decree. principals. The insertion of these words can The decree simply states in words what is implied by the law, and may be stricken out as surplusage. The expression of what is tacitly implied adds nothing to the force of the implied condition or reservation. Expressio eorum quæ tacitè insunt nihil operatur. Broom, Leg. Max., 4th ed.,518,

If these words were out, execution could not issue in case of an appeal, and the judgment would be suspended. The effect of the decree is to order judgment against the principals and sureties. And they thereupon had the right of appeal. The sureties did not appeal, and they are precluded. The principals did appeal, though not from this decree; and the judgment was affirmed. All that remained for the Circuit Court to do, was to issue execution in accordance with the judgment.

Mr. E. F. Hodges, for respondents:

The record does not present a case relievable by a writ of mandamus; the duty of the Circuit Court being, as to Lee and Davis, judicial and not ministerial.

The Circuit Court had never rendered any judgment against them prior to the return of the mandate, and the only judgment against them was rendered upon the return of the mandate from this court when, for the first time, the question of their relations to the cause was considered. The prior judgment against the principal respondents they could not appeal from. It adjusted matters between libelants and libelees only, and they had no right to intervene. When the libelants claimed a judgment against them as sureties or stipulators according to the rules of the admiralty, then for the first time the court passed upon their relations to the cause; investigated the medium through which the libelants claimed, to fix upon them the respon

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