of the consideration, and notes secured by mortgage for the deferred payments. Upon this state of the evidence, the court, besides other charges, gave the jury the following: "It is not enough that the defendant should have written the plaintiffs, when he applied for the power of attorney, that he expected to make special terms for himself, or that he should have told the plaintiffs or their agent that he would not sell for the price fixed by them, but expected to get more for his share. He cannot claim and take to himself the benefit of the discrimination in his favor, unless the evidence satisfies you that he had fully communicated all the facts to the plaintiffs before he consummated the sale,-all the facts known to him in relation to the chances of selling, so as to enable the plaintiffs intelligently to decide whether they would consent to the proposed discrimination in defendant's favor or not. Such would be the rights of the parties, even if the defendant did not know, or had not reason to believe, before he accepted the said power? of attorney and undertook to execute it, that the land could be sold for inore.

99

•

The bill of exceptions states that "the jury, having been charged by the court, retired for deliberation, and, after being out for the space of about one day, came into court and made a written request to the court for further instructions, as follows: Shall the jury understand the court to charge that the defendant is liable as agent, if it is found that he failed to reveal any material facts to plaintiffs relative to the value of the property and terms of sale?' And thereupon the court gave to the jury the further instruction or charge following, to-wit: In answer to your inquiry, propounded by your foreman, I have to repeat that an agent is required by law to deal fairly with his principals in all things. One contention of the defendant in this case is that the power of attorney under which the defendant made the sale of the plaintiffs' interest in the land fixed the price and terms of the sale; and that plaintiffs were concluded by the authority thus given. This would be true if the defendant obtained the power after fully and fairly communicating to them all the knowledge or trustworthy information which he possessed, so that they could as well judge of the value of the property, and the propriety of selling it on the terms authorized by the power, as the defendant could himself do; but if he failed to communicate the facts, and thereby induced plaintiffs to execute to him the power under which he acted in making the sale and conveying the title to the purchaser, plaintiffs could not be concluded or estopped by reason of anything contained therein. The court further instruct you that if you shall find that the power of attorney was obtained fairly, and after the communication by defendant to the plaintiffs of all the material facts and information, as aforesaid, but that he ascertained afterwards that he could sell the land, the whole of it, at $500,000, and that he refused to disclose the price or the name of the purchaser, but undertook to bring about the sale in his own way, he was in duty bound to accept the offer of $500,000 made by the purchasers, as well for his principal as for himself; and if he,' instead of making the sale for the benefit of both, sold plaintiffs' part for $200,000 and his own for $300,000, he is not authorized to retain the excess to himself, but that he is, in equity and good conscience, bound to share the same with his principals, unless he made a full disclosure to them of all the facts material for them to know, and they, with such full knowledge and for reasons which they deemed sufficient, consented to the unequal division of the purchase money which the defendant made of it. If he did not so disclose the material facts in regard to the value or the amount received, and obtain plaintiffs' consent that he might retain three-fifths of the purchase money, as it is admitted he did, the plaintiffs are entitled to recover the one-half of suck excess, so received and retained by defendant, as per my former instructions.'

17

The jury again retired, and, after further deliberation, returned a verdict for the plaintiffs for $57,944.82, for which sum, with costs to be taxed, the court rendered judgment against the defendant. To reverse that judgment

*218

this writ of error is brought. The defendant below, plaintiff in error in this court, assigns for error the charges of the court above recited.

We think there was error in the charges complained of. To test their correctness we must assume the truth of the facts which the testimony submitted to the jury tended to prove. It was the duty of the court to submit to the consideration of the jury the testimony adduced by the defendant to sustain the defenses set up in his answer, and the charge should have been based on the hypothesis that the defenses which the testimony tended to prove were proven. The evidence tended to show that no fraud was practiced by the defendant in procuring the power of attorney; in fact, the charge proceeds on this assumption; it tended to show that the plaintiffs, after full conference with the defendant, consented that he might secretly conduct the negotiations for the sale; that he might manage the sale of the property in his own way, and that he should be free to dispose of his own half as he pleased; that in case he sold their half for $200,000, he might sell his own half for any price he could get. If the plaintiffs gave their consent in advance of any sale, it was immaterial to them what price the defendant got for his share of the land, and he was under no obligation to disclose the price to the plaintiffs and ask their consent to retain it. The effect of the charge of the court was to withdraw from the jury all the evidence tending to show the antecedent assent of the plaintiffs, fairly obtained, to the sale made by the defendant, and to instruct the jury that nothing but their subsequent assent could be effectual. This was error. Adams v. Roberts, 2 How. 486; Reese v. Beck, 24 Ala. 651; Grube v. Nichols, 36 Ill. 92; Chappell v. Allen, 38 Mo. 213, 220.

The charge having assumed that there was no fraud in the procuring of the power of attorney, and the defendant having submitted testimony tending to show that there was no fraud in his doings after the power of attorney was procured, but that whatever was subsequently done by him in making the sale was done with the consent of the plaintiffs given in advance, it was error to charge the jury that the plaintiffs were entitled to recover, unless the defendant informed the plaintiffs at what price he could sell or had sold his share, and they renewed their consent that he might retain it. For the error indicated the judgment of the circuit court must be reversed, and the cause remanded, with directions to grant a new trial; and it is so ordered.

(112 U. S. 217)

BOARD OF COUNTY COM'RS OF LABETTE Co., KANSAS, and others v. UNITED STATES ex rel. MOULTON.

(November 17, 1884.)

1. MANDAMUS-ANCILLARY PROCESS, BUT CAN BE EXERCISED OVER PERSONS NOT PARTIES TO THE JUDGMENT.

There is no original jurisdiction in the circuit courts in mandamus, but it does not follow that because the jurisdiction in mandamus is ancillary merely, that it cannot be exercised over persons not parties to the judgment sought to be enforced.

2. SAME-TOWNSHIP BONDS-TAX THEREFOR-WHOM TO BE COMMANDED TO LEVY-TRUSTEE OF TOWN-COUNTY COMMISSIONERS.

In regard to bonds issued for railroad purposes by a township under a legislative act in Kansas "to enable municipal townships to subscribe for stock in any railroad and provide for the payment of the same," and to judgments rendered thereon for principal or interest, the concurrence of the trustee of the township is not necessary for their payment, but the duty is laid upon the commissioners of the county to levy the tax upon the township for that purpose.

8. SAME ESSENTIALS OF EFFECTIVE WRIT, WHEN DUTY IS SHARED BY SEVERAL OFFICERS. The relator is entitled to an effective writ, and he can have it only by joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps in the performance of those official duties which are necessary to secure to him his legal right.

In Error to the Circuit Court of the United States for the District of Kan

sas.

B. W. Perkins, for plaintiffs in error. S. E. Brown, for defendant in error. *MATTHEWS, J. The relator, on June 7, 1877, recovered a judgment in the circuit court of the United States for the district of Kansas, against the township of Oswego, in the county of Labette, in that state, for $9,221.34, with interest and costs, which is still in force and unpaid. That judgment was recovered upon coupons for unpaid interest on bonds, issued in the name and on behalf of Oswego township, by the board of county commissioners of Labette county, pursuant to the act of the legislature of the state, entitled "An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same," approved February 25, 1870, and were payable to the Missouri, Kansas & Texas Railway Company, or bearer. On his information, an alternative writ of mandamus was allowed by the circuit court, June 10, 1881. The command of the writ was as follows: That "the said board of county commissioners of Labette county, state of Kansas, do forthwith levy and collect and pay over, or cause to be collected and paid over, to the relator, a tax on all the taxable property within the township of Oswego as constituted in the year 1870, and to do and perform in the manner and at the time required by law each and every and all singular the matters and things in respect to this special tax that are required by law by you to be done in respect to general taxation; and we do further command that you, the said clerk of the said board of the said county, do enter or record the levy of such tax, and enter the same on a tax roll or list, and record the proceedings of said board in respect to such taxation, and all proceedings that by law should be had and recorded in reference to taxation, and determine, extend, and carry out the sum or sums of money to be levied or extended against each and every tract or lot of land, and all other taxable property, as provided by said laws, and set down such tax in a separate column, and complete the said tax roll or list in the manner and at the time required by law, and attach thereto your certificate and the seal of your office and the seal of your county and corporation, and that you deliver the same, so sealed and signed, to the treasurer of your said county, at the time and in the manner required by law, and that you do and perform in the proper manner and at the proper time each and every act and thing by law required to be done in respect to taxation; and we command you, the said treasurer of said county, to accept and receive the said tax roll or list from said clerk, and to proceed as provided by law to collect such tax and to publish the list required by law, and to distrain for said tax, and to advertise lands for sale for the non-payment of such tax, and to offer the same for sale, and to strike them off at such sale, all to be done in the manner and at the time required by law, and to take each and every and all and singular the process and proceedings, and do and perform each and every act and thing imposed upon you by the law in respect to the enforcement or collection of taxes, the same in respect to this tax as to other and general taxes, at the time and in the manner provided by law, and that you pay the said moneys to the relator, or into this court for his use." To this the respondents jointly and severally demurred, and, for causes of demurrer, assigned the following: (1) Because the court has no jurisdiction of the persons of the respondents or the subject of the action; (2) because of defect of parties defendant; (3) because several causes of action are improperly joined; (4) because the writ does not state facts sufficient to entitle the relator to the relief demanded against the respondents. This demurrer was overruled by the circuit court, and a peremptory writ of mandamus awarded, to reverse which judgment this writ cf error has been sued out.

218

The objection that the circuit court had no jurisdiction to issue its mandamus to the plaintiffs in error is based upon the supposition that, because

221

they are not parties to the judgment against Oswego township, and are not officers of or representatives of that municipal corporation, but are officers of the county of Labette, the proceeding against them is the exercise of an original jurisdiction, which does not belong to that court. It is quite true, as it is familiar, that there is no original jurisdiction in the circuit courts in mandamus, and that the writ issues out of them only in aid of a jurisdiction previously acquired, and is justified in such cases as the present as the only means of executing their judgments. But it does not follow because the jurisdiction in mandamus is ancillary merely that it cannot be exercised over persons not parties to the judgment sought to be enforced. An illustration to the contrary is found in that class of cases of which Krippendorf v. Hyde, 110 U. S. 276, S. C. 4 SUP. CT. REP. 27, is an example.

The question is whether the respondents, to whom the writ is addressed, have the legal duty to perform, which is required of them, and whether the relator has a legal right to its performance from them, by virtue of the judgment he has already obtained. If so, then they are, as here, the legal representatives of the defendant in that judgment, as being the parties on whom the law has cast the duty of providing for its satisfaction. They are not strangers to it, as being new parties, on whom an original obligation is sought to be chargel, but are bound by it, as it stands, without the right to question it, and under a legal duty to take those steps which the law has prescribed as the only mode of providing means for its payment.

It is next objected that the trustee of Oswego township is a necessary party in the mandamus, as the officer charged by law with the duty of levying and collecting the tax for the payment of judgments against it, or at least whose concurrence in the levy is made necessary to the valid action of the county commissioners. The statutes of Kansas which govern this question were considered by this court in the case of Cherokee Co. Com'rs v. Wilson, 109 U. S. 621; S. Č. 3 Sup. Cт. REP. 352. It was there held to be the duty of the county commissioners, when the office of township trustee was vacant, to levy the tax upon the township property for the payment of township debts, under the general law regulating the subject. In the present case it does not appear that there was no trustee of the township who could act. But we are of opinion that in regard to bonds issued for railroad purposes, and to judgments rendered thereon, for principal or interest, as in the present case, the concurrence of the trustee of the township is not necessary to the levy of the tax necessary for their payment, but that the duty is laid upon the commissioners of the county to levy the tax upon the township for that purpose. This we think is the fair result of a comparison of the various provisions on the subject contained in the original legislation under which the bonds were issued, with the amendments passed and in force at the time these proceedings were begun, including the act of March 9, 1874, (Sess. Laws Kan. 1874, p. 41, and section 6, c. 107, Laws Kan. 1876.) Indeed, it was expressly decided in Cherokee Co. Com'rs. v. Wilson, ubi supra, that in no event was the assent and concurrence of the township trustee necessary to the action of the commissioners of the county, as the latter were required to levy all taxes required by law upon the township, even though the township trustee refused to consent; and when it was a matter of discretion and expediency the judgment of the county commissioners was paramount. As to the bonds upon which the relator's judgment is founded, we think it was the legal duty of the commissioners of the county to make the proper levy of a tax for their payment, without regard to the trustee of the township.

*It is further objected that the demurrer to the alternative writ of mandamus should have been sustained by the circuit court, on the ground of a misjoinder of parties defendant, it being alleged that the duty required of the county clerk and that of the county treasurer were separate and distinct from each other, and from that of the county commissioners; that neither the clerk nor

the treasurer could act in the collection and payment of the tax until after its levy by the commissioners; and that as to each of those officers it was shown on the face of the writ that he could not be in default. The clerk and the treasurer do not, it will be observed, make returns to the alternative writ of their willingness to perform their several duties in reference to this tax when the time for them to act shall arrive; nor are they satisfied with several demurrers to the writ, on the single ground that, as to them, it is premature, and therefore defective by reason of the misjoinder; but they join with the county commissioners in demurring to the writ, on the ground that it does not state facts sufficient to entitle the relator to the relief demanded. Their position in the record is not altogether consistent with the presumption they claim the benefit of, that they will each perform the duty required of him by the law when the time arrives for its punctual performance. But the objection does not apply in the present case.

Speaking of the writ of mandamus, as employed here, this court, in Riggs v. Johnson Co. 6 Wall. 166-198, described it as "a proceeding ancillary to the judgment which gives jurisdiction, and, when issued, becomes a substitute for the ordinary process of execution to enforce the payment of the same, as provided in the contract." An ordinary execution upon a judgment at law commands the officer to whom it is addressed to perform a series of acts,—tc levy on goods and chattels, lands and tenements, of the judgment debtor, and, if on the latter, to appraise their value, to advertise the same for sale, to make sale of the same at the time and place and in the manner prescribed by law, and apply the proceeds to the payment of the judgment, and these are. to be performed successively. There is no incongruity in such a writ. It would not be complete or effective without it embraced all the particulars* which, in law, are essential to the full duty contemplated by it, the performance of which is necessary to secure its benefits to the party who sues it out. So, here, the object of this writ, though including many particular steps in obeying it, is, nevertheless, single, in that it is intended to obtain an end which is the result of the means prescribed. The command of the writ is to perform the general duty, which is obeyed by performing the successive steps which constitute it. Clearly, the writ would not be chargeable with duplic ity if addressed to one person, although it commanded the performance of a series of acts, each of which was a condition of the performance of its successor, where the right of the relator consists in the result legally flowing from the combined whole. It can make no difference in principle that in a particular case the law, instead of casting the performance of the entire duty upon a single person, has divided it among several, each to perform but one act in the series, and each acting independently and not as responsible to any of the others, but all required to co-operate in the attainment of the single result, and by a continuous and uninterrupted succession, so as to preserve the integrity and unity of the performance as an entire duty.

The relator is entitled to an effective writ, and he can have it only on the terms of joining in its commands all those whose co-operation is by law required, even though it be by separate and successive steps, in the performance of those official duties, which is necessary to secure to him his legal right. Otherwise the whole proceeding is liable to be rendered nugatory and abortive. For the levy and collection of a tax is not only an entire thing, although accomplished by successive steps and by separate officials, but is a continuous transaction, each one taking it up where his predecessor left it; and if the relator was compelled to obtain a separate mandamus against each person charged with the performance of a single service, the very delay and break in the continuity of the process might be, by the terms of the law itself, a sufficient answer to each succeeding writ; and if it were not, it would prolong the proceeding to such indefinite length as to deprive the writ of the very *character of a remedy. So that, if such a precedent could be regarded as an