for that reason the right of recovery exists. The manner in which that fact is to be established is a question of evidence, to the determination of which the ordinary rules of evidence are to be applied. This court seems to have proceeded upon the conservative idea that the best evidence of the insolvency and inability of the payor to satisfy the demand against htm is to show a judgment and return of "no property," both of which must be obtained with ordinary diligence. That rule ought not to be departed from, not only because of the sanction it has received by adjudications extending over a period of eighty years, but because of the uncertainty that would result in a determination of the fact of insolvency by the introduction of oral evidence. The rule is founded upon the familiar principle that the best evidence should, in every case, be presented. But when the reason fails, the rule must open for exceptions. Hence this court has held that no suit is necessary against the payor, when he has left the State for permanent residence before the maturity of the obligation, when the payor has been adjudged a bankrupt, and when it is shown that the debt was discharged before the assignment. These exceptions show that the effect of the assignment is not to bind the assignee to bring suit and obtain judgment and return of "no property," when such a proceeding would clearly be unavailing. The law requires no man to do a foolish or a vain thing. Upon no other principle and upon no other reasons can these rulings be reconciled.

The error, that there must be in every case a judgment and return of "no property," has resulted from confounding the cause of action with the evidence by which it is ordinarily to be established. The cause of action springs from the fact that the debt can not be made out of the payor, and when that fact is admitted, as in this case, no evidence is necessary; but when an issue is made by the assignor, upon the ability of the assignee to make the debt, the best evidence of that fact must be adduced; and if the inability grows out of insolvency, the best evidence of the insolvency is a judgment and return of "no property." The object to be attained by the introduction of evidence is to establish or to controvert some disputed fact, and when the fact upon which the right to recover exists is not disputed, no evidence is necessary. It is a familiar rule of pleading that the evidence relied upon to make out a cause of action, or to sustain a defense, should not be pleaded; from which it follows that in an action by an assignee against an assignor, the allegations should be confined to the facts that justify a recovery. As, for instance, in the case of the discharge in bankruptcy of the payor, it is only necessary or proper to allege the fact of the adjudication and discharge, and not the evidence by which it is to be established. If, however, an issue is made upon these allegations, the record evidence of the adjudication and discharge must be adduced, because that is the best evidence. So in the case of a removal to another State after

assignment of the obligation, and before maturity, or of payment before assignment, it is only necessary to allege the fact. It is not unlike s declaration upon a state of facts that are shown of record. In such case it is not necessary to set forth the record evidence, but if issue is taken on the existence of the facts, the only competent evidence is the record.

The rule is broadly laid down in Smallwood ▾. Woods, 1 Bibb, that a suit is necessary to fix the liability of the assignor, but on examination of that case it will be found that the question here presented did not arise. The only question at issue there was of diligence. The question as to whether insolvency existing at the date of assignment, and continuing, would be sufficient to fix liability on the assignor, was not considered. Besides, the opinion in that case, as to the necessity of a suit to establish the liability of the assignor, is expressly based upon the case of Boals v. McConnel, Sneed (Ky.), 130, which does not touch the point, and upon Mackie v. Davis, 2 Washington, 281 (Va.), in which it is expressly said that the only questson is: "Can the assignee of a bond maintain an action against the assignor, without a special undertaking by the latter to insure the payment?" Mackie v. Davis was followed by the case of Brown v. Ross (6 Munford, 393), in which the same judge said: "In the case of the assignment of a note, it is generally necessary for the assignee to sue the drawer in order to charge the indorser. There are exceptions, however, to this rule; two of which are thus stated in the opinion of the Hasting's court, viz.: a discharge under the former bankrupt laws, or the insolvent law of this State. But these are not the only exceptions. Another exists, whenever the plaintiff can show to the jury that the drawer is in fact insolvent, whereby a suit would have been wholly unavailing. In this case, like the others, the undertaking of the assignee to use due diligence to recover the money from the drawer, is not infringed by the omission to sue; and this omission, if objected to, may be always answered, on the part of the assignee, by showing that a suit would have been fruitless on account of the actual insolvency of the drawer." To the same effect is Coiner v. Hausbarger, 4 Leigh, 452, and Smith v. Triplett, 4 Leigh, 590. The Virginia cases go so far as to admit oral evidence upon the issue of insolvency; and considering the weight to which these cases are entitled, it is well to remember that our statute making bonds, notes and bills assignable so as to vest the title and the right of action in the assignee, is substantially a copy of the Virginia statute.

I will not undertake to review in detail the decisions in this State, but confidently express the opinion that no reported case can be found in which the exact question here presented is passed upon. In many cases expressions may be found that appear to indicate that there can be no recourse, unless there has first been suit and return of "no property," but on examination it will be

seen that the question here presented did not arise. Such expressions are purely dicta wherever found. Upon these questions I cite, in addition to the cases mentioned: Clay v. Johnson, 6 Mon. 645; Wood v. Berthoud, 4 J. J. M. 304; Stapp v. Anderson, 1 A. K. M. 541; Claire v. Barr, 2 A. K. M. 256; Roberts v. Atwood, 8 B. M. 210; Emmerson v. Claywell, 14 B. M. 19; Graves v. Tilford, 2 Duvall, 109; Tucker v. Fogle, 7 Bush. 294; Carroll v. Carroll, 16 Howard, 287; Wells' Res Adjudicata and Stare Decisis., chapters 39 and 40.

Since I prepared and read in consultation the foregoing views in regard to the law of this case, I have heard read the opinion of the majority of the court, in which I can not concur. What I have already said I propose to let stand without modification, but will add, by way of elaboration, some additional suggestions.

The cardinal error in the opinion of the majority of the court grows out of the assumption that the implied obligation resulting from the assignment is that the assignee will pursue the payor to insolvency by suit. I have already stated that the contract of assignment does not imply such an obligation, and that no reported case can be found in which it has been so decided. The conclusion of the court upon this point is drawn from dicta only. It matters not how often the court may assert the law to be one way or the other, the repetition does not establish the law. That can only be done in a case where the declaration is in refererence to a point directly in issue. Of course, I admit that between parties to an action, the rule is different. There the party complaining must present his whole case, and any question that might have been made on appeal, or that is incidentally decided, becomes res adjudicata as between the parties. But when we come to consider how far an opinion is the law of the land in controlling the rights of those not parties to the particular case, the rule is different. Marshall, C. J., in Carroll v. Carroll, 16 How., pertinently said: "It is a maxim not to be disregarded, that general expressions in every opinion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, where the very point is presented. No opinion can be relied on as binding authority, unless the case calls for its expression. Its weight of reason must depend on what it contains.”

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The opinion of the court, to be correct. must be based upon reason or authority-one or both. That this opinion is not supported by reason I submit is clear, nor do I understand the majority of the court to so insist; and that it is not sustained by authority I have already asserted, and still so insist. In every case where the rule insisted upon in the opinion is found, the issue was as to negligence or no negligence, and not as to solvency of the payor, or inability on the part of the assignee to make the debt out of the payor.

It is suggested in the opinion that that portion of the petition alleging continuing insolvency is demurrable. In order to reach that conclusion, the court assumes the existence of the very question of law in issue, and that is whether the law implies from the assignment an undertaking in all cases to prosecute to insolvency, or whether the obligation of the assignor is to pay in the event the assignee is unable to enforce payment from the payor or maker. If the assumption of the majority of the court is correct, then nothing will excuse a suit and diligence in its prosecution; and what, then, becomes of the exceptions already mentioned? It has also been suggested that my position leads to an absurdity when I hold that the petition presents a prima facie case, and that the assignee is entitled to recover unless its allegations are controverted; but that, when controverted, no evidence of the fact of insolvency is competent except execution and return of "no property." It is said I have a cause of action which I am not permitted to prove. In this the error consists, as said in the first part of this opinion, in confounding the cause of action with the evidence necessary to establish it. I am permitted to prove my cause of action, but as in every other case, I must do it by such evidence as the courts have held to be competent. In addition to the case already referred to, of an action based on facts provable by record, I may give, in illustration, a suit to recover the possession of land on the ground of title in the plaintiff. The allegation of title and the right of possession, if undenied, is taken as confessed; but if issue is taken upon title or no title, then the question arises as to the character of evidence admissible to establish the claim. Many other illustrations might be given, but the principle, that the facts necessary to a recovery must be alleged. and not the evidence by which the facts are to be established, if controverted, is too familiar to require discussion.

If there is any defect in the allegation of the petition in regard to insolvency, it is one of form, and not of substance, not to be reached by demurrer, but by motion to make more definite, and such a motion not having been made, the defect, if any, is waived. Posey v. Green, 78 Kentucky. I am of the opinion that the judgment should be affirmed.

to be managed by the governor of the State and eight other commissioners, to be appointed by the executive of California." 13 Stat., 325, ch. 184. This grant was accepted in 1866 by the State of California by an act of the legislature, upon the conditions, etc., contained in the act of Congress. There was in the act of Congress no condition or limitation fixing the term of office of the commissioners, but the legislature, April 15, 1880, fixed the term of office at four years, and otherwise regulated the proceedings of the commissioners, authorizing them to elect a president and secretary, make by-laws and rules, to sue and be sued, etc. The plaintiff in error having been one of the commissioners, refused to vacate his office under this act, and it is held, that the act of the legislature of April, 1880, was not in conflict with the act of Congress granting the property to the State; that it was competent for the legislature to regulate the manner in which the trust confided to the governor and the commissioners should be executed, and among other things limit the term of office of the latter; that the plaintiff in error having been in office longer than the prescribed term of four years, should have surrendered his office when the governor appointed another person in his place. Affirmed. In error to the Supreme Court of the State of California. Opinion by Mr. Chief Justice WAITE.-Ashburner v. People.

IN

FRAUDULENT CONVEYANCE ASSIGNEE BANKRUPTCY - CREDITORS' RIGHTS.-The bill, after setting forth indebtedness and a judgment, charges in substance, that the defendant's wife held the legal title of valuable real estate; that the land was purchased with the defendant's money, and that the title was made to his wife with the intent to defraud the defendant's creditors; and prays that the land may be subjected to the payment of the judgment. The defendant answered, "that long before the bringing of this suit, this defendant had filed his petition in this honorable court under the bankrupt law of the United States; and the said orator, the said James S. Trimble, was duly notified of the same, and the claim of the said orator was therein set forth; and after the proper proceedings as prescribed in said law, this defendant was on his petition adjudged a bankrupt, and by a judgment of this court he was finally discharged from all of his indebtedness, and the claim of the orator was one of the debts from which he was thus discharged; he files herewith a copy of his judgment of discharge as part hereof." An amended bill was also filed, making John T. Levis, alleged to be the assignee in bankruptcy, a party, and averring that the judgment was obtained in a State court after the discharge of the defendant in bankruptcy. The record showed an order of the court for the issue of process against the assignee, but no service. Upon hearing before the Circuit Court, the bill was dismissed, aud the defendant appealed. Held, 1. That where a debtor has gone into bankruptcy, and an assignee has been appointed, a credito

can not attack, in his own name, a conveyance as fraudulent, the right to bring such suit being solely in the assignee for the benefit of creditors. Glenny v. Langdon, 98 U. S. 20. 2. That the faet that the assignee has neglected to bring such suit till barred by the two-years' statute of limitations, can not give a creditor such a right. Affirmed. Appeal from the Circuit Court of the United States for the District of Kentucky. Opinion by Mr. Justice MILLER.-Trimble v. Woodhead.

PRACTICE-PLEADING-BILL FILED OUT OF TIME WITHOUT LEAVE-LIABILITY OF STOCKHOLDERS-LIMITATIONS.-This suit was brought originally by the appellant as a bill in chancery, in the Circuit Court for the District of South Carolina, against McLure, as receiver of the Bank of Chester, and certain officers of the bank and one or two stockholders. The main purpose of the bill was to obtain a discovery of the names of the stockholders at the date of the failure of the bank, and, when discovered, to make them liable for the amount of the circulating notes of the bank held by plaintiff. Amended bills were filed, none of them containing a sufficient statement of the names of the stockholders, or the circumstances under which the dividends which were alleged in some of the later amendments, were declared and received, except the last amendment found in the record. This bill was filed without the leave of court, eight years after the original bill was filed. on the day the hearing was had and the decree rendered dismissing the original bill, and appears to have been disregarded by the court. It was therefore disregarded here. As regards the statutory liability of the stockholders, the allegations of the bill, the answers of the defendants, and the evidence taken in the case, all show that the suspension of specie payments took place on the 27th day of November, 1860, and that the statute of limitations of four years of the State of South Carolina, applicable to such cases, bars the plaintiff's right of recovery This point was adjudged in this court against the present plaintiff in the case of Godfrey v. Terry, 97 U. S. 171; see, also, Carroll v. Greene, 92 U. S. 509. Affirmed. Appeal from the Circuit Court of the United States for the District of South Carolina. Opinion by Mr. Chief Justice WAITE.-Terry v. McLure.

MANDAMUS-JUDICIAL DISCRETION TO ORDER A SUBPOENA DUCES TECUM.-"This is an application for a mandamus requiring the District Judge for the Eastern District of New York to compel one Eliza M. Shepherd to obey the command of a subpœna duces tecum, and produce before a special examiner certain iron patterns of an old fireplace heater, that testimony might be taken respecting them, to be certified and used on the hearing of an equity cause pending in the Circuit Court for the Southern District of New York. From the application it appears that the judge has already acted on the identical showing made to us, and for reasons assigned in writing denied a motion for an attachment against the

person named for refusing to obey the subpœna. A writ of mandamus may be used to compel an inferiorftribunal to act on a matter within its jurisdiction, but not to control its discretion while acting (Ex parte Railroad Co., 101 U. S. 720), or to reverse its decisions when made. Ex parte Flippin, 94 U. S. 350. Both these rules are elementary and are fatal to this application. The district judge took jurisdiction of the matter, as it was his duty to do, heard the parties, and decided adversely to the claim of the petitioner. In this he may have done wrong, and the reasons he has assigned may not be such as will bear the test of judicial criticism; but we can not, by mandamus, compel him to undo what he has thus done in the exercise of his legitimate jurisdiction. was asked to punish a person for cor tempt in disobeying the process of the court. He decided not to do so. This action of his is beyond the reach of a writ of mandamus. The application is denied." Opinion by Mr. Chief Justice WAITE.Ex parte Burtis.

He

PATENT OF A PROCESS REQUISITES - NEW METHOD.-A patent for a process, irrespective of the particular mode or form of apparatus for carrying it into effect, is admissible under the patent laws of the United States. To sustain a patent for a process, the patentee should be the first and original inventor of the process, should claim it in his patent, and, if the means of carrying it out are not obvious to an ordinary mechanic skilled in the art, his specification should describe some mode of carrying it out which will produce a useful result. If a subsequent inventor discover a new mode of carrying out a patented process, though he may have a patent for such new mode, he will not be entitled to use the process without the consent of the patentee thereof. The decision in Mitchell v. Tilghman, 19 Wall. 287, reviewed and overruled; and Tilghman's patent, relating to the manufacture of fat acids, sustained as a patent for a process. The decisions in O'Reilly v. Morse, 15 How. 62, and in the case of Neilson's patent for the hot blast (Webster's Reports), commented upon and explained. Reversed. Appeal from the Circuit Court of the United States for the Southern District of Ohio. Opinion by Mr. Justice BRADLEY.-Tilghman v. Proctor.

SUPREME COURT OF MISSOURI. February 1881.

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EJECTMENT-HOMESTEAD-DOWER - RIGHTS OF MINOR CHILDREN.-This was an action of ejectment. Both parties claim title under one R. The evidence tended to show that R acquired title in 1866 to eighty acres of land, and lived upon it as a homestead with his family until his death in 1868; that he left a widow and two children, who are plaintiffs in this suit; that said land was worth $1,000 at R's death; that in March, 1869, Mrs. R sold her dower interest in the land to one

M, who gave his note for $300, for the same; that Mrs. R afterwards sued upon the note and obtained judgment, which was adjudged a lien upon the interest sold by her, and that the land was sold under this judgment and bought by one L, who conveyed after his purchase to Mrs. R; that the administrator of the estate of R, deceased, by virtue of an order of the Probate Court in June, 1869, sold the land to the said M for the payment of debts, and executed to him a deed in July, 1870, and that by mesne conveyances M's title passed to defendants in this suit. On this state of facts the trial court held that plaintiffs were entitled to the land as a homestead, and rendered judgment in their favor. Held, that under the law in 1868, relating to homesteads, R dying seized in fee, the fee at his death vested in his widow, his minor children being entitled to the enjoyment of the estate with her until their majority; that as there were only eighty acres, worth $1,000, of which R died seized, it was not necessary that commissioners be appointed to set apart the homestead, said land not exceeding in quantity or value the amount allowed for that purpose; that, as the homestead could not be sold in the lifetime of R for debt contracted by him, after the filing of the deed under which he claimed, neither was it subject to sale by order of the court after his death, except for debts contracted before the homestead right attached; that Mrs. R was not estopped by either her sale to M or the administrator's need from asserting claim to the homestead, and that the objection that said minor children sued without the appointment of next friend should have been made by demurrer or answer, if not it is deemed to be waived, and can not be made in the motion in arrest. Affirmed. Opinion by NORTON, J.-Rogers v. Marsh.

EJECTMENT-EQUITABLE DEFENSE-AMENDED ANSWER.-This was an action of ejectment. It was in the Supreme Court once before, and is reported in the 65 Mo. 268, and the defense then relied on was the statute of limitations, and an outstanding title in a corporation known as the "Board of Directors of the Town of Lancaster and Lancaster Seminary." Judgment for defendant was then reversed, and the cause remanded; and thereupon defendant filed an amended answer, alleging that in 1839 certain named persons and D, plaintiff's ancestor, associated themselves together and contributed money in equal parts for the purpose of buying the land in controversy; that D took the money and entered the land in his own name, and his associates ratified his proceedings; that D never claimed title, but asserted that he held in trust for the parties aforesaid, who were associated together and known as the corporation mentioned above; that after the purchase, D undertook to convey all his title to said association, which, not being incorporated, could not take the grant; that both D and the association believed he had divested himself of the title, and they took possession and sold, being assisted so to

do by D, who ever after treated the conveyance as a deed in fee-simple; that defendant became and was then owner of the interests of all the parties so associated together, except D's, and that D never had equitable title to more than one-eighth of said land. Held, that as the facts set out in the amended answer were established by evidence to the satisfaction of the trial court, its finding will not be disturbed, and that those facts constituted an equitable defense as to seven-eighths of the land. Affirmed. Opinion by HENRY, J.-Douthitt, et. al v. Stinson.

CORRESPONDENCE.

THE PROPOSED JUDICIAL REFORM IN MISSOURI.

To the Editor of the Central Law Journal.

Dear Sir-The appellate judicial power of the State is, under the present Constitution, vested in the Supreme Court and the St. Louis Court of Appeals. The Supreme Court is composed of five judges, and has appellate jurisdiction coextensive with the State. Each judge is elected for ten years, and draws an annual salary of $4,500. The terms of office are so arranged that one judge is elected every two years. The judge oldest in commission is chief justice. If two or more hold commissions of the same date, the court determines which of such judges shall be the chief justice. The court sits at Jefferson City. It occupies and holds its sessions in a building provided for that purpose. The St. Louis Court of Appeals is composed of three judges, and has appellate jurisdiction co-extensive with the City of St. Louis and the counties of St. Louis, St. Charles, Lincoln and Warren. Its jurisdiction is final, except in cases involving over $2,500, and certain causes arising on constitutional, treaty. revenue, official, real estate, State subdivision and felony questions. Each judge is elected for twelve years, and draws an annual salary of $5,500. The terms of office are so arranged that one judge is elected every four years, the judge having the oldest license to practice law is the presiding judge. It holds its sessions in the City of St. Louis.

The docket of the Supreme Court is about three years behind. To relieve the court of this burden, to facilitate the labors of the State judiciary, to make judges more learned and profound by classifying their labors and generally to expedite and promote justice, the legislature of Missouri has passed the following concurrent resolution, submitting to the qualified voters of the State of Missouri an amendment to the Constitution thereof, concerning the judicial department:

"Be it resolved by the Senate, the House of Representatives concurring therein: That at the general election to be held on the Tuesday next following the first Monday in November, A. D. 1882, the following amendment to the Constitution of the State of Missouri, concerning the judicial depart

ment, shall be submitted to the qualified voters of said State, to wit: § 1. The Supreme Court shall consist of six judges, and, after the first Monday in January, 1883, be divided into two divisions, with three judges each, one to be called the civil, the other the criminal side of the court. The divisions shall sit separately for the disposition of causes, and any two judges of a side shall constitute a quorum. The chief justice of the court shall be presiding justice of the division of which he may be a member, and also of the court in banc; and of the other side, the judge oldest of commission shall be presiding justice. The criminal side of the court shall hear and determine all appeals and writs of error in criminal causes, all damage cases in which the damages sued for sound in tort, all applications for writs of habeas corpus and quo warranto, and also such other causes, including mandamus, certiorari and other original remedial writs as may, by order of the civil side, be transferred to it from that division. The civil side of the court shall hear and determine all other causes and applications, including mandamus and certiorari,and except habeas corpus and quo warranto, other original remedial writs. The judgments, orders and decrees of either division shall have the force and effect of those of the court. § 2. Whenever it shall be known, or be made to appear to the chief justice, that the criminal side of the court has, within twenty days, rendered a decision contrary to some decision of the civil side, or to some decision of the court prior to its division, as to any matter within the jurisdiction of the civil side, he shall grant a rehearing of the cause; on such rehearing, the cause shall be determined by the court in banc. § 3. After the first Monday in January, 1883, the jurisdiction of the St. Louis Court of Appeals shall be restricted to the eighth judicial circuit, and after that time it shall not have jurisdiction of any criminal case. Its decisions of all civil cases shall be final, except as otherwise provided in the next section, and the judge oldest of commission shall be presiding judge of the court. § 4. Whenever it shall be made to appear to the Chief Justice of the Supreme Court that the St Louis Court of Appeals has, within two months, rendered a decision contrary to some decision of the Supreme Court, he may cause to be issued the certiorari of the Supreme Court to transfer the cause from the Court of Appeals to the Supreme Court for rehearing; on such rehearing all the judges, both of the Supreme Court and Court of Appeals, or a majority of them, shall sit, and if present, the chief Justice shall preside, and the cause shall then be determined by a majority of all the judges, and when thus determined, it shall be of binding authority to both courts. § 5. After the first Monday in January, 1883, no appeal shall lie to or writ of error issue from the St. Louis Court of Appeals in any criminal case, but all such cases, whether by appeal or writ of error, shall go directly to the Supreme Court. § 6. Upon the adoption of this amend