said, inter alia: "Hartley claims he purchased of Halstead about Dec. 2, 1872, notes and judgments owned by Decker & Halstead, amounting to $2,050, and paid him therefor $753, of which $35.21 was a deb held against them, and the rest was in notes he held against Halstead alone, except $225, which he paid on a note one Stewart had against Halstead. He swears that he considered many of these notes almost or entirely worthless, although he made the purchase, but that the purchase was made with the knowledge and express consent of Decker. This Decker denies in toto except as to the Gifford note, as you will recollect his evidence in regard to that in connection with Mrs. Gifford's evidence. The plaintiff claims to recover the amount yet unpaid on his judgment against Decker & Halstead, $1,250.20, if the jury find the notes in the possession of Hartley are of that value. If not of so great value, then to recover an amount equal to their value. He bases his right to recover on the ground that the transfer of the notes assigned to Hartley was fraudulently made, the fraudulent purpose being to pay the individual debts held against Halstead out of the firm property, and to prevent the same from being applied to firm debts. If the jury find the transfer was fraudulent, and was made for the purpose stated, and Hartley, colluding with Halstead or with Decker & Halstead, obtained the notes, etc., knowing they were the property of the firm, it was void, and the plaintiff may recover whatever they were worth. This for the reason that Hartley acquired no title as against the creditors of Decker & Halstead. They may follow and seize them in his hands as firm property. Or if the jury find that Hartley obtained the notes and judgments from Halstead in payment of the debts against Halstead without the knowledge or consent of Decker, knowing them to be firm property, the plaintiff may recover their value. This for the reason that by the action of Halstead the firm were not deprived of their title to this property and could maintain suit therefor; this being the fact, the creditors of Decker & Halstead could reach and hold them upon attachment execution.

One partner cannot use the property of the firm to pay individual debts, even if the act is honest and in good faith, if his copartners had no knowledge of the transaction, if such transfer prevents the creditors of the firm from collecting their debts. A different rule prevails if both parties consent bona fide to the transfer. You will recollect that Hartley swears Decker did consent to it. Fraud is not presumed, the burden is on the party alleging fraud to establish it by satisfactory evidence."

The court directed the jury to find a special verdict, and stated to them all the facts their finding should cover, calling their attention to evidence bearing upon each proposition they were to determine and find in their verdict.

The jury found the following special verdict: "We find that of the money for which the note entered in No. 715, Aug. T., 1872, was borrowed by

Decker & Halstead, copartners, and used in their partnership business, of $1,250.20 remain unpaid. Attachment execution served July 24, 1875. That Silas Hartley, garnishee, obtained from Andrew Halstead about the 2d day of December, 1872, notes and judgments amounting to about $2,000 face value; that the notes and judgments belonged and were the property of Decker & Halstead when so assigned and transferred. That he has collected on these notes $700, and has given up other notes to the makers, and included in notes taken in his own name to the amount of $723. That the interest on the $700 is $210, and on the $723 is $216.90, computed by us for five years. We find that the notes and judgments not collected, surrendered, were of the value of $125 when they were transferred to Hartley; interest on same for five years $37.50. We further find that the value of the notes surrendered by Hartley to the makers, and new notes taken by him, and now uncollected, were of the value of $578.40, interest thereon for five years, $173.50. For all the notes and judgments which Hartley received from Halstead he paid Halstead $493,53, by delivering to him his notes and accounts he held against Halstead individually, also paid a note of about $225 which one Stewart held against Halstead. He also applied payment of a debt he had against Decker & Halstead of $35.21, making a total of $753.74.

We further find that the transfer of these notes adjudged was fraudulent, and intended by Halstead and Hartley to be in payment of Halstead's private debts, and to prevent the same from being used and applied in the payment of the firm debts of Decker & Halstead, and the transfer was in the absence and without the knowledge or consent of M. J. Decker, except as to the Gifford note, and that at this time Decker & Halstead were largely in debt, and soon after became insolvent and unable to pay their debts, the debt of the plaintiff being one.

We find also that about five years ago Hartley borrowed a pair of platform scales, property of Decker & Halstead. At the time he borrowed them they were of the value of $65; that on being required to return them he refused, unless Decker & Halsted paid an individual debt he owed him, said Hartley, and he still has them in his possession.

We find for the plaintiff such sum as the court may be of opinion he has a right to recover under these facts, verdict to be moulded by the court and judgment entered thereon in snch manner and amount as the court may deem legal and proper. If the court be of opinion he can not recover under the facts found by us, then our verdict is for the defendant."

A rule was afterwards granted to show cause why judgment should not be entered for $1,250, which the court made absolute, in the following entry of record:

"And now, April 27, 1878, rule absolute, judgment in favor of plaintiff and against the said garnishee, for $1,250.20 and costs. Under the

Act of Assembly and the cases (vide Bonaffon v. Thompson, 4 W. N. 210), execution is restricted first as to the goods and effects in the garnishee's hands, or so much thereof as may satisfy the plaintiff's demands, and secondly, against him as of his proper debt if he refuses to produce such goods and effects. By the court."

The garnishee took this writ, assigning for error, inter alia, the charge of the court, the form of the special verdict, and the entry of judgment

thereon.

MERCUR, J., delivered the opinion of the court: This judgment was entered on a special verdict. It does not present the facts in a clear and methodical manner. It is not a model to be followed. It may, however, be sufficient to sustain a judgment. The plaintiff in error was served as garnishee of Decker and Halstead, co-partners. The jury found that in fraud of the creditors of the firm, and without the knowledge or consent of Decker, except as to one note (shown by evidence to be about $40), Halstead asssigned and transferred judgments and notes, the property of the firm amounting to about $2,000, to the garnishee; that the transfer of this property was fraudulent and intended by Halstead and the garnishee to be in payment of Halstead's private debts, and to prevent the same from being used and applied in the payment of the firm debts of Decker and Halstead; that the firm was at the time largely in debt, and soon after became insolvent. They further found that out of the claims thus assigned to the garnishee, he had collected a specific sum in cash, and that he had surrendered to the makers notes, and taken new ones therefor for a sum certain and of sufficient value added to the cash received, to exceed by several hundred dollars the sum due to the attaching creditor, or for which judgment was entered against the garnishee.

It is well settled that one partner can not make a valid transfer of firm property in payment of his individual debt, without the consent of his co-partner. Todd v. Lorah, 75 Pa. St. 155. Such act is a fraud on his co-partner, and the right of property in the firm does not pass to the individual creditor. The present case goes still further. Not only was the attempted sale a fraud on the co-partner, but it was intended, and operated, as a fraud on the creditors of the firm. It is then clear, under these facts, the purchaser can not hold the property against the creditors intended to be defrauded. He has no reason to complain of the amount for which judgment was entered against him. It is for a sum less than he has realized out of the property.

It is further objected that the form of the judgment is wrong. It must be conceded that the reference to the Act of Assembly, and to the case of Bonaffon v. Thompson, might more appropriately have been made in an opinion of the court than be interwoven in the judgment. This, however,is not a fatal error. The form of the judgment can be amended. It is now done by striking

out those references so that it shall stand-judgment in favor of plaintiff below, and against said garnishee for $1,250.20 and costs, to be levied on the goods and effects of Decker and Halstead in his hands, or, in case he fails or refuses to produce such goods and effects, sufficient to satisfy the execution, then to be levied against him as his own proper debt. Thus amended the judgment is

affirmed.

RESCISSION OF CONTRACTS--DAMAGESEMINENT DOMAIN.

SMITH v. HUGHES.

Supreme Court of Wisconsin, Decumber, 1880.

1. Executory contracts only can be rescinded except in cases of fraud, and especially a rescission can not be had after a deed with full covenants, together with the possession, has been delivered in full execution of the bargain. Nominal damages only can be recovered for breach of the covenant of seisin until after eviction by paramount title or other actual injury.

2. Railways or other highways over a portion of the premises, in open and visible use at the time the deed was executed, constitute no breach of the covenants of the deed, whether easements or not. The exercise of the right of eminent domain in taking private property for the use of railways is no injury, and does not constitute ground for the recovery of damages between private persons, because it is presumed that full indemnity and compensation have been made.

Appeal from Winnebago County.

ORTON, J., delivered the opinion of the court: The counterclaims of the defendant for a rescission of the bargain and for damages, are predicated upon the breach of the covenant of seisin in the deed of the respondents, executed in July,

1872.

It is too well settled that only executory contracts can be rescinded, to require discussion. This method of relief is the converse of specific performance, and in its very nature can have application only to executory contracts, and this court has settled the question beyond controversy, by repeated decisions. In direct applications to this case, it is held in Booth v. Ryan, 31 Wis. 45, that especially a rescission can not be made after a deed with full covenants together with possession has been delivered in full execution of the contract of sale. It is not pretended in this case that the vendors were guilty of any fraud or concealment, or that the warrantors were insolvent, or that the appellant did not have full knowledge of the condition of the property and title. Willard's Eq. Jur. 303; Taft v. Kessel, 16 Wis. 273; Horton v. Arnold, 18 Wis. 212; Brunette v. Schettler, 21 Wis. 188; Rawle on Cov. 565, 591.

The remark in the opinion of Chief Justice Dixon in Mecklem v. Blake, 22 Wis. 495, intimating

that a rescission might be made in such a case, was clearly obiter, and without due consideration. As to the counterclaim for damages, for the breach of the covenant of seisin, the law is equally well settled, that an action to recover anything more than nominal damages for the breach of this covenant will not lie until after eviction by paramount title, or other actual injury. Mecklem v. Blake, 22 Wis. 495; Noonan v. Ilsley, 22 Wis. 27; Eaton v. Lyman, 30 Wis. 41.

From the evidence in the case, there can be no question but that the adverse possession of the appellant and those holding under him ripened into title before the answer setting up the counterclaim in this action was made. This affirmative relief, asked by way of answer, must be treated as a cause of action, and before this cause of action accrued, the title of the appellant became perfect, and his previous cause of complaint had been removed. The lots had been used together in the business of the respondents before the deed was made, and they had full and notorious possession of both lots, and delivered the same to the appellant at the time of the execution of the deed. Since that time, the evidence is very clear and satisfactory that the appellant and those claiming under him, have continued in nearly the same use and possession of, and exercised nearly the same acts of ownership over both of the lots. They have paid the taxes thereon and derived rents and profits therefrom, and to the extent necessary for their business, they have been in the visible, open and notorious possession of both lots to the extent of their relative facilities of use and enjoyment, and to the exclusion of all persons. The appellant has offered to rescind the bargain, and although, as we have seen, this offer is fruitless in such a case, yet it is sufficient that he has made this offer to rescind in good faith, and tendered, or pretended to tender back to the respondents all of the title and possession he received from them in 1872.

By this answer, the appellant should be estopped from claiming in this case that he had lost or abandoned such possession, and rendered himself unable to deliver back the same to the respondents on such rescission. In this view of the case, it is not necessary to scan very closely the evidence as to such continued possession of both lots for the fuil time of ten years after the execution of the deed of James Saunders, trustee, to the respondent, Rufns R. Smith, in July, 1868, in the respondents and the appellant, and in those who claim under him. But without such admission in the offer to rescind and deliver back the full possession by the appellant, the evidence is clearly satisfactory, that such possession has been sufficient to answer the demands of the statute of adverse possession. Secs. 4210, 4211, 4212, R. S. William v. Henry, 40 Wis. 594. In respect to railways and other highways, over these lots or over any portion of them, it is sufficient to say, that if they were used as such, when the deed of July, 1872, was executed, the appellant must be presumed to have purchased with full notice of them, and they

constitute no breach of the covenants of the deed.

This would be so if the ways were, in law, easements, (Kutz v. McCune, 22 Wis. 628); and much more, if they were less than easements, or unlawful. But in respect to railways, where the right of eminent domain of the government is exercised in conferring a right of way, they can not constitute breaches of covenants of title, in any case. Rawle on Cov. 140; Frost v. Earnest, 4 Whart. (Pa.) 86; Ellis v. Welch, 6 Mass. 246. Such acts of sovereignty are not presumed to be in the minds of the parties, or embraced within the purview of the warranty. No injury can be presumed to any one from such acts, as full indemnity and compensation are required to be made.

It is needless to say that the covenants of a deed do not embrace trespasses or unlawful intrusions. In respect to the damages in abeyance, for rights of way over the property, the appellant and those who claim under him, now having full title, can make them available to themselves whenever they choose to do so. The application of the insurance moneys in part payment of the mortgage assumed by the appellant as part of the consideration of the deed, was the application of the moneys of the respondent, and in principle is the same as if the respondents had paid directly so much of said mortgage for the appellant.

That mortgage having drawn nine per cent. interest, it is no hardship for the appellant to now pay seven per cent. on such amount from December 1, 1870, the date when said moneys were so applied upon the mortgage. It was clearly liquidated at that time, and such adjustment of the interest appears to be equitable and just, within the rule in Diedrich v. Ry. Co. 47 Wis. 662, and other cases in this court. The opinion as to interest is subject of course to any stipulation of the parties, and the matter is not deemed important, as there is no discussion of the question in the brief of the learned counsel of the appellant. We can find no error in the judgment of the circuit court.

The judgment of the circuit court is affirmed with costs.

tution protecting the obligation of contracts. 2. A bond, in the nature of a forthcoming bond, given by an execution debtor in pursuance of the provisions of such a statute, is void. 3. But the obligors in such a bond are estopped from pleading its invalidity in an action upon it. National Bank v. Graham, 100 U. S. 702; Railway Co. v. McCarthy, 96 U. S. 98; White v. Franklin Bank, 22 Pick. 181; Ferguson v. Landram, 5 Bush. 280; s. c. 1 Bush, 548; Vanhook v. Whitlock, 26 Wend. 42; Lee v. Tillotson, 24 Wend. 337; People v. Murray, 5 Hill, 468; Burlington v. Gilbert, 31 Iowa, 356; Railway Co. v. Stewart, 39 Iowa, 548. 4. In an actiou on such a bond, where the defense is pleaded that the bond was taken in pursuance of the requirements and conditions of a statute passed in violation of the Constitution of the United States and in aid of and in furtherance of the objects and policy of the ordinance of secession, though such defense may not be fully and technically pleaded, still the Supreme Court of the United States will have jurisdiction of a writ of error to a State court. Home Insurance Co. v. City Council, 93 U. S. 121; Sevice v. Haskell, 14 Wall. 15; Wiston v. City Council, 2 Pet. 449; McGuye v. Commonwealth, 3 Wall. 385; Haight v. Holly, 10 Wend. 218; U. S. Rev. Stat., 132, § 709. In error to the Circuit Court of Jefferson County, State of West Virginia. Opinion by Mr. Justice SWAYNE.-Daniels v. Tearney; Same v. Same.

MUNICIPAL CORPORATIONS-WHAT PROPERTY SUBJECT TO EXECUTION-TAXATION.-1. Property held for public uses, such as public buildings, streets, squares, parks, promenades, wharves, landing-places, fire-engines, hose and hose-carriages, engine-houses, engineering instruments, and generally everything held for governmental purposes, can not be subjected to the payment of the debts of the city. Its public character forbids such an appropriation. Upon the repeal of the charter of the city, such property passed under the immediate control of the State, the power once delegated to the city in that behalf having been withdrawn. 2. The private property of individuals within the limits of the territory of the city can not be subjected to the payment of the debts of the city, except through taxation. The doctrine of some of the States, that such property can be reached directly on execution against the municipality, has not been generally accepted. 3. The power of taxation is legislative, and can not be exercised otherwise than under the authority of the legislature. 4. Taxes levied according to law before the repeal of the charter, other than such as were levied in obedience to the special requirement of contracts entered into under the authority of law, and such as were levied under judicial direction for the payment of judgments recovered against the city, can not be collected through the instrumentality of a court of chancery at the instance of the creditors of the city. Such taxes can only be collected under authority from the legislature. If

no such authority exists, the remedy is by appeal to the legislature, which alone can grant relief. Whether taxes levied in obedience to contract obligations, or under judicial direction, can be collected through a receiver appointed by a court of chancery, if there be no public officer charged with authority from the legislature to perform that duty, is not decided, as the case does not require it. 5. The receiver and back-tax collector appointed under the authority of the act of March 13th, 1879, is a public officer, clothed with authority from the legislature for the collection of the taxes levied before the repeal of the charter. The funds collected by him from taxes levied under judicial direction can not be appropriated to any other uses than those for which they were raised. He, as well as any other agent of the State charged with the duty of their collection, can be compelled by appropriate judicial orders to proceed with the collection of such taxes by sale of property or by suit, or in any other way authorized by law, and to apply the proceeds upon the judgments. 6. The bills in this case can not be amended so as to obtain relief against the receiver and back-tax collector, without making an entirely new suit. They were not framed with a view to any such purpose. 7. The decree of the court below is reversed. 8. The cause is remanded, with instructions to dismiss the bills, without prejudice. If, on the settlement of the accounts of the receiver herein, it shall be found he has any money in his hands collected on taxes levied under judicial direction to pay judgments in favor of any persons who have become parties to this suit, an order may be made directing its appropriation to the payment of such judgment. Judgment of the court announced by WAITE, C. J. Opinion by FIELD, J., for himself, and MILLER and BRADLEY, JJ. Dissenting opinion by STRONG, J.-Meriwether v. Garrett.

PATENT-RE-ISSUE.-The court holds in accordance with the case of Ball v. Langles, (11 Cent. L. J. 513), decided at this term, that a reissue of a patent is invalid and void, if it appears by the specification of the original patent, and by comparison of the two patents, that the invention sought to be protected by the re-issue is not identical with that protected by the original. Affirmed. Appeal from the Circuit Court of the United States for the Eastern District of Missouri. Opinion by Mr. Justice STRONG.--Garneau v. Dozier.

DUTIES ON IMPORTS-TARIFF ACTS OF 1861, MARCH 2, SECTION 22, OF 1862; JULY 14, SECTION 13, AND JUNE 30, 1864, COMPARED AND CONSTRUED. By the first mentioned of these acts, a duty of 30 per cent. was levied on importations of "manufactures, composed of mixed materials, in part of cotton, silk, wool or worsted, or flax;" and in the second-named act, 5 per cent. additional was imposed on goods of this description. The act of 1864 imposed a duty of 50 per cent. "on all manufactures of silk, or of which silk is the component part of chief value not otherwise provided for." The act of 1804 did not in terms repeal the

previous acts in toto, but declared by section 22, that "all acts and parts of acts repugnant to the provisions of this act, be and the same are hereby repealed." The plaintiffs sought to recover back duties paid under protest upon goods which were confessedly embraced in both descriptions, being not only goods made of mixed material, cotton, silk, etc., but also goods of which silk is the component part of chief value. Held, that the plaintiff cannot recover back the duties so paid under protest; that "goods made of mixed materials, cotton, silk, etc., shall pay a duty of 35 per cent.; but if silk is the component part of chief value, they shall pay a duty of 50 per cent." Affirmed. Error to the Circuit Court of the United States for the Southern District of New York. Opinion by Mr. Justice BRADLEY.-Solomon v. Arthur.

ADMIRALTY-DUTIES OF STEAMERS AND SAILING VESSELS RESPECTIVELY IN DANGER OF COL

LISION. BILLS OF EXCEPTIONS.-The general rule is that it is the duty of a steamer to keep out of the way, and of a sailing vessel not to embarrass the steamer by any change of course. In the case of The Abbotsford, 98 U. S., 445, it was held that on appeal the court could only pass on such rulings of the court below as might properly be put into a bill of exceptions, and that the findings of fact sent up with the record are conclusive in the appellate court. The Supreme Court is no longer required to weigh evidence. This is the construction placed in this particular on the act of 1875, (18 Stat. 315). Affirmed. Appeal from the Circuit Court of the United States for the Eastern District of New York. Opinion by WAITE, C. J.— Benefactor v. Mount.

TICE

DISTILLERIES INTERNAL BEVENUE METERS.-Plaintiffs sought to recover from the United States in the court of claims. $4.150 paid by them for Tice meters under the act of July 20, 1868, ch. 186, 15 Stats. 125, and the regulations made under that act by the Internal Revenue service. Under that act distillers were required to buy and attach meters at their own expense, or abandon the business. Plaintiffs elected to purchase the meters, and as the meters were officially declared a failure, and their use discontinued by act of June 6, 1872, sec. 12, ch. 315, 17 Stats. 239, they sought to recover the value of the meters from the United States, on the ground that there was an implied warranty by the United States that the meters would answer the purpose for which they were designed, and, there being a breach of the warranty, the United States were liable accordingly. It was held that there was no such warranty, that the United States were not vendors of the meters, the revenue officers receiving the money from the distillers only to pay it over at once to the manufacturers, and as no part of the money ever was in the National treasury, the United States was not liable for money had and received. Affirmed. Appeal from the court of claims. Opinion by Mr. Justice SWAYNE.-Finch v. United States.

PATENT-REISSUE-WHEN VOID.-The holde of a reissued patent for tanks fixed upon railwa ears for the transportation of petroleum, havin complained of infringement, prayed for injunction etc. The court held that, as it appeared by th evidence that some of the improved method claimed under the patent had long been in genera use, and that other parts of the patented proces had been superseded by superior arrangementwhat was left was not sufficient to constitute th basis of a valid patent, (citing Brown v. Piper, 9 U. S. 37); that there was no novelty and no util. ity; that although patentees as a class are publi benefactors and their rights should be respected the public has rights also. The relief prayed for was denied on the ground that all the particular: of the claims were "frivolous and nothing more." Affirmed. Appeal from the Circuit Court of the United States for the Northern District of Ohio.Opinion by Mr. Justice SWAYNE.-Densmore Scofield.

SUPREME COURT OF INDIANA.

December, 1880.

SALE OF LANDS-FRAUDULENT REPRESENTA TIONS EVIDENCE.-In an action for damages for fraudulent representations in an exchange of real estate, the testimony of a witness as to a conversation with the defendant, prior to the delivery of the deeds, in which certain representations were made by him as to the value of his lands, is admissible, the witness having shown that he was interested in the property and business of the plaintiff, and in a position to have prevented the consummation of the trade, if its terms had not been satisfactory to him. What was said by the defendant for the purpose of influencing witness and preventing him from interposing any objeetion to the exchange of lands already agreed to by the plaintiff, was competent, not only as part of the res gestae, but also in corroboration of the testimony of the plaintiff, the inference being that the conversation testified to had some influence in bringing about the mutual delivery of the deeds. Affirmed. Opinion by NIBLACK, C. J.-Ghormley v. Young.

CAUSE OF ACTION-RECOVERY ON-WHEN BAR TO SECOND ACTION.-A recovery on part of a cause of action which is divisible, is not a bar to an action brought upon the other part; but a recovery on the whole cause of action of only a part of the amount, is a bar to a suit on the same cause of action for the balance of the amount. In the former instance there might be a question of costs between the parties, but the recovery would not be a bar to a second suit, because the causes of action would not be the same; while, in the latter instance, the causes of action would be the same, and, therefore, the first suit would be a bar to the second. The case of Commrs. of Hancock County