*223

MILLER, J. This case comes before us on a motion to dismiss the writ of error. The ground of this motion is that since the judgment was rendered, which plaintiff in error now seeks to reverse, the matter in controversy has been the subject of compromise between the parties to the litigation, which is in full force and binding on plaintiff and defendant, and which leaves nothing of the controversy presented by the present record to be decided. The evidence of this compromise is not found in the record of the case in the circuit court, nor in any proceedings in that court, and it is argued against the motion to dismiss that it cannot, for that reason, be considered in this court. It consists of duly-certified transcripts of proceedings of the board of commissioners of Dakota county, who are the authorized representatives of that county in all its financial matters, of receipts of the parties or their attorneys, and of affidavits of persons engaged in the transaction. These are undisputed on the other side, either by contradictory testimony or by the brief of counsel who appear to oppose this motion. They leave no doubt of the fact, if it is competent for this court to consider them, that shortly after the judgment against the county in favor of Glidden was rendered, the parties entered into negotiations to settle the controversy, which, after due deliberation and several formal meetings of the board of commissioners, resulted in such settlement. The judgment in the case was rendered on certain coupons for interest due on bonds issued by said county to aid in constructing railroads. These bonds bore interest at the rate of 10 per cent. per annum, and became due in the year 1896. By the new agreement the county took up the bonds and the coupons on which judgment was rendered, and issued new bonds bearing 6 per cent. interest, the principal payable in the year 1902. These new bonds were delivered to plaintiff and accepted by him in satisfaction of his judgment and of his old bonds, and these latter were delivered by him to the county authorities and destroyed by burning.

There can be no question that a debtor against whom a judgment for money is recovered, may pay that judgment, and bring a writ of error to reverse it, and if reversed can recover back his money. And a defendant in an action of ejectment may bring a writ of error, and, failing to give a supersedeas bond, may submit to the judgment by giving possession of the land, which he can recover, if he reverses the judgment, by means of a writ of restitution. In both these cases the defendant has merely submitted to perform the judgment of the court, and has not thereby lost his right to seek a reversal of that judgment by writ of error or appeal. And so, if, in the present case, the county had paid the judgment in money, or had levied a tax to raise the money, or had in any other way satisfied that judgment without changing the rights of the parties in any other respect, its right to prosecute this writ of error would have remained unaffected. But what was done was a very different thing from that. A new agreement, on sufficient consideration, was made, by which the judgment itself, the coupons on which it was recovered, and the bonds of which these coupons were a part, were all surrendered and destroyed, and other bonds and other coupons were accepted in their place, payable at a more distant date and with a lower rate of interest, with the effect of extinguishing the judgment now sought to be reversed, so that the plaintiff in that judgment could not issue execution on it, though there is no supersedeas bond to secure its payment. It is a valid compromise and settlement of a much larger claim, but it includes this judgment necessarily. It extinguishes the cause of action in this case. If valid, it is a bar to any prosecution of the suit in the circuit court, though we should reverse this judgment on the record as it stands for errors which may be found in it. To examine these errors and reverse the judgment is a fruitless proceeding, because when the plaintiff has secured his object the relation of the parties is unchanged, and must stand or fall on the terms of the compromise.

It is said that to recognize this compromise and grant this motion is to as

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sume original instead of appellate jurisdiction. But this court is compelled, as all courts are, to receive evidence dehors the record affecting their proceeding in a case before them on error or appeal. The death of one of the parties after a writ of error or appeal requires a new proceeding to supply his place. The transfer of the interest of one of the parties by assignment or by a judicial proceeding in another court, as in bankruptcy or otherwise, is brought to the attention of the court by evidence outside of the original record, and acted on. A release of errors may be filed as a bar to the writ. A settlement of the controversy, with an agreement to dismiss the appeal or writ of error, or any stipulation as to proceedings in this court, signed by the parties, will be enforced, as an agreement to submit the case on printed argument alone, within the time allowed by the rule of this court.

This court has dismissed several suits on grounds much more liable to the objection raised than the present case, as in the case of Cleveland v. Chamberlain, 1 Black, 419, where the plaintiff in error, having bought out the defendant's interest in the matter in controversy, and having control of both sides of the litigation in the suit, still sought for other purposes to have the case decided by this court. On evidence of this by affidavits the court dismissed the writ. Similar cases in regard to suits establishing patent rights or holding them void by the inferior courts, as in Lord v. Veazie, 8 How. 254; Wood Paper Co. v. Heft, 8 Wall. 336, have been dismissed, because the parties to the suit having settled the matter, so that there is no longer a real controversy, one or both of them was seeking a judgment of this court for improper purposes, in regard to a question which exists no longer between those parties.

It is by reason of the necessity of the case that the evidence by which such matters are brought to the attention of the court must be that not found in the transcript of the original case, because it occurred since that record was made up. To refuse to receive appropriate evidence of such facts for that reason is to deliver up the court as a blind instrument for the perpetration of fraud, and make its proceedings by such refusal the means of inflicting gross injustice. The cases and precedents we have mentioned are sufficient to show that the proposition of plaintiff in error is untenable.

In the case of Board of Liquidation v. Louisville & N. R. Co. 109 U. S. 223, S. C. 3 SUP. CT. REP. 144, a question arose on the presentation of an order made by the authorities of the city of New Orleans to dismiss a suit in this court in which that city was plaintiff in error. The order was based on a compromise between those authorities and the railroad company, which the board of liquidation, intervening here, alleged to be without authority, and fraudulent. The court here did not disregard the compromise or the order of the city to dismiss the case; but, considering that the question of authority in the mayor and council of the city to make the compromise, and of the alleged fraud in making it, required the power of a court of original jurisdic tion to investigate and decide thereon, continued the case in this court until that was done in the proper court. But when this was ascertained in favor of the action of the mayor and council, the suit was dismissed here on the basis of that compromise order.

In the case before us we see no reason to impeach the transaction by which the new bonds were substituted for the old, and for the judgment we are asked to reverse; and the writ of error is accordingly dismissed.

(113 U. S. 216)

CHEONG AH MOY v. UNITED STATES.1
(January 26, 1885.)

WEIT OF ERROR-MOOT QUESTIONS.

The supreme court will not decide questions arising in cases which no longer exist in regard to rights which it cannot enforce. Writ of error dismissed.

In Error to the Circuit Court of the United States for the District of California.

H. S. Brown and Thos. D. Riordan, for plaintiff in error. Asst. Atty. Gen. Maury, for defendant in error.

MILLER, J. The plaintiff in error here is a Chinese woman, who, arriving at San Francisco from China, was not permitted to land in that city, by reason of the acts of congress of May 6, 1882, and the amendatory act of 1884, and, being forcibly kept on board the vessel, sued out a writ of habeas corpus to obtain her release. On a hearing in the circuit court of the United States it was ordered that she be returned on board the vessel in which she came, or some other vessel of the same line, to be carried back to China; and she was placed in the custody of the marshal, who was directed to execute the order. On undertaking to do this, it was found that the vessel had sailed, and the marshal placed his prisoner in jail for safe-keeping until another vessel should be at hand to remove her. Her counsel, upon this state of facts, applied to the circuit court for permission to give bail on behalf of the woman and have her released from custody. The judges of the circuit court were opposed in opinion on the question of granting this motion, and, having overruled it, have certified the division to this court. In the mean time it is made to appear to us, by the return of the marshal, and by affidavits, that on the second day of October, three days after the order was made overruling the motion, and ten days before the writ of error herein was served by filing it in the clerk's office of the circuit court, the marshal had executed the original order of the court by placing the prisoner on board the steam-ship New York, one of the Pacific Mail steam-ships, about to start for China, and that she departed on said vessel on the seventh day of October. It thus appears that the order of deportation had been fully executed, and the petitioner in the writ of habeas corpus placed without the jurisdiction of the court and of the United States six days before the writ of error was filed in the circuit court and several days before it was issued. The question, therefore, which we are asked to decide is a moot question as to plaintiff in error, and if she was permitted to give bail it could be of no value to her, as the order by which she was remanded has been executed, and she is no longer in the custody of the marshal or in prison. This court does not sit here to decide questions arising in cases which no longer exist in regard to rights which it cannot enforce. The writ of error is dismissed.

1 S. C. 21 Fed. Rep. 808.

(113 U. S. 215)

CAILLOT and another v. DEETKEN.
(January 26, 1885.)

WEIT OF ERROR TO CIRCUIT COURT-RETURN-DISMISSAL.

Where no return has been made to a writ of error by filing the transcript of the record in the supreme court, either before or during the term of the court next succeeding the filing of the writ in the circuit court, the supreme court has acquired no jurisdiction of the case, and, the writ having expired, can acquire none under that writ, and it will be dismissed.

In Error to the Circuit Court of the United States for the District of Cali fornia.

*J. J. Scrivner, for plaintiff in error. John F. Hanna and Jas. M. John ston, for defendant in error.

MILLER, J. It has been repeatedly decided by this court that where no return has been made to a writ of error by filing the transcript of the record here, either before or during the term of the court next succeeding the filing of the writ in the circuit court, this court has acquired no jurisdiction of the case, and, the writ having then expired, can acquire none under that writ, and it must, therefore, be dismissed. Villabolos v. U. S. 6 How. 81; Castro v. U. S. 3 Wall. 46; Mussina v. Cavazos, 6 Wall. 358; Murdock v. Memphis, 20 Wall. 624. In the case before us the writ of error was filed in the circuit court in which the record was March 16, 1882, and the transcript that was returned with it was filed in this court November 28, 1884. Two full terms of the court had passed, therefore, between the filing of the writ of error in the circuit court and its return with the transcript into this court. It must, therefore, be dismissed for want of jurisdiction.

(113 U. S. 227)

BOARD OF COUNTY COM'RS OF THE COUNTY OF ANDERSON v. BEAL.

(January 26, 1885.)

MUNICIPAL BONDS-KANSAS STATUTE-ELECTION-NOTICE-RECITALS-INTEREST-ESTOPPEL-BILL OF EXCEPTIONS.

Bonds issued by Anderson county, in Kansas, under legislative authority, and in payment of its subscription to the stock of a railroad company, after the majority of the voters of the county had, at an election, voted in favor of subscribing for the stock and issuing the bonds, recited, on their face, the wrong statute, but also stated that they were issued "in pursuance to the vote of the electors of Anderson county, of September 13, 1869." The statute in force required that at least 30 days' notice of the election should be given, and made it the duty of the board of county commissioners to subscribe for the stock and issue the bonds, after such assent of the majority of the voters had been given. In a suit against the board on coupons due on the bonds, brought by a bona fide holder of them, it appeared by record evidence that the board made an order for the election 33 days before it was to be held, and had canvassed the returns and certified that there was a majority of voters in favor of the proposition, and had made such vote the basis of their action in subscribing for the stock and issuing the bonds to the company; and the court directed the jury to find a verdict for the plaintiff. Held: (1) The statement in the bonds, as to the vote, was equivalent to a statement that the vote was one lawful and regular in form, and such as the law then in force required, as to prior notice; (2) as respected the plaintiff, evidence by the defendant to show less than 30 days' notice of the election could not avail; (3) the case was within the decision in Town of Coloma v. Eaves, 92 U. S. 484; (4) the rights of the plaintiff were not affected by any dealing by the board with the stock subscribed for; (5) the issue or use of the bonds not having been enjoined, for two years and a half between the day of election and * the time the company parted with the bonds for value, and the county having for 10 years paid the interest annually on the bonds, it was estopped, as against the plaintiff, from defending, on the ground of a want of proper notice of the election; (6) as the bill of exceptions contained all the evidence, and the defendant did not ask to go to the jury on any question of fact, and the questions were wholly questions of law, and a verdict for the defendant would have been set aside, it was proper to direct a verdict for the plaintiff.

In Error to the Circuit Court of the United States for the District of Kansas.

A. Bergen, for plaintiff in error. Wallace Pratt and Jeff. Brumback, for defendant in error.

BLATCHFORD, J. This is an action at law, brought in the circuit court of the United States for the district of Kansas, by Thomas P. Beal against the board of county commissioners of the county of Anderson, in the state of Kansas, to recover the amount of 90 coupons for $70 each, due January 1, 1881, and the same amount due January 1, 1882. The coupons were cut from bonds alike, except as to their numbers, of the following form:

"No. COUNTY OF ANDERSON. "UNITED STATES OF AMERICA,

1,000.

STATE OF KANSAS.

"Know all men by these presents, that the county of Anderson acknowledges to owe and promises to pay to Leavenworth, Lawrence & Galveston Railroad Co., or bearer, one thousand dollars, lawful money of the United States of America, on the first day of January, in the year of our Lord one thousand nine hundred, at the Farmers' Loan and Trust Co. Bank, in the city of New York, with interest at the rate of seven per centum per annum, payable annually on the first day of January in each year, on the surrender of the annexed coupons as they severally become due.

"This bond is executed and issued under the provisions of and in conformity to an act of the legislature of the state of Kansas, approved February 26, 1866, entitled 'An act to amend an act entitled An act to authorize counties and cities to issue bonds to railroad companies,' approved February 10, 1865, and in pursuance to the vote of the electors of Anderson county, of September 13, 1869.

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