Clay's D. P., 60, sec. 25: Code, sec. 2446; | ment of the plaintiffs be a lien, then they can Thomas v. Hopper, 5 Ala, 442. recover irrespective of the question of fraud. The charge should have been given by the Not only the answer denies any indebtedness, but the promissory notes produced and proved, import a consideration. This is by the law merchant and by the Statute of Alabama. Code P., 424, sec. 2278. By the well established judicial construction of the attachment law, "no demand can be recovered by a writ of garnishment, on which the defendant in the judgment, who is also the creditor of the garnishee, could not maintain debt or indebitatus assumpsit. Self v. Kirkland, 24 Ala., 277. It follows that the proof required by the pres ent plaintiff, is the same as would have been required of the defendant in the judgment, if he had brought the suit. Could he have recov ered on the evidence in this record? There being no evidence disproving or tending to disprove the answer which denied any indebtedness, and nothing impeaching the consideration of the notes, there was no predicate for the charge as to "fraud and collusion." The bill of exceptions sets out all the evidence in the cause. Where the facts are not disputed, fraud is a question of law. Swift v. Fitzhugh, 9 Port., 66; Gillespie v. Battle, 15 Ala., 285. Mr. H. W. Hilliard, for defendant in ror: er The answer of the garnishee is not evidence for himself upon the trial of this issue; the onus of disproving the facts of the answer of the garnishee, does not rest upon the plaintiff. Travis v. Tartt, 8 Ala., 574; Myatt v. Lockhart, 9 Ala., 94. The only proof offered by the garnishee to the court and jury, going to show that he was not indebted to defendant in execution, was that certain promissory notes had been made by said defendant; but the date of said notes, or rather the actual time of their execution, did not appear from the testimony. They were merely offered by garnishee as a set-off against the plaintiff's suit for the excess of money remaining in the garnishee's hands, after satisfying the debts provided for in the mortgages; and the consideration of said notes was not in proof. The charge of the court, if erroneous, is in favor of the garnishee, and he cannot revise it in this court. court. 19 Ala., 195; 19 Ala., 753; 21 Ala., 504; Hazard v. Franklin, 2 Ala., 349. The charge of the court, on the second point, as to fraud, was clearly correct. It was a question for the jury. The facts were disputed; the very existence of the notes denied; the silence of the garnishee respecting them, in his interview with the plaintiff's counsel on the day of sale; his offer to relinquish his claim to the house and lot upon being paid the remainder of the sum due on the notes named in the mortgages; the good faith of the entire transactions between garnishee and defendant in execution being contested; all this, and other facts appearing in the evidence, presented a case which a jury alone could decide. The very proceeding, being an issue made up under the code, was a question of fraud or no fraud, and either party was entitled to a jury. Code, sec. 2546. Mr. Justice Campbell delivered the opinion of the court: The defendants recovered a judgment in the District Court in a plea of debt against one Mahone. The latter having no property in possession liable to an execution, the defendants, in consequence, served a garnishment on the plaintiff (Williams), to attach any debt he might owe their debtor, or secure any effects of theirs he might have. The garnishee answered to the process, that on the day the writ of garnishment issued, he had sold some personal property of the debtor, under the authority of two deeds of trust, for the satisfaction of the debts described in them; and there remaining a balance due, he sold a house and lot, described in one of the deeds, for a sum sufficient to extinguish those debts and to leave a surplus. He further answered that Mahone, prior to the judgment, was indebted to him upon another account, and had so continued a debtor till the sale; that before the judgment, and afterwards, before the sale, Mahone had instructed him to apply any sur plus that might arise from the sale to the payment of that account; and he had done so, in accordance with the instructions. There was an issue formed upon the answer of the garnishee, and the subject of the controversy was the claim of the respective parties to the surplus above described. The garnishee produced on the trial a number of promissory notes, dated prior to the judg ment, and proved the signature of Mahone to them; he also proved that Mahone had admitted the authority of the garnishee to apply the surplus to the payment of his demands, not described in the deeds, shortly after the sale, and at that time disclaimed any power to control it. No evidence was given of the existence of the notes of a day prior to the answer, nor of their consideration. The defendants proved a conversation between their attorney and the garnishee, on the day of the sale, relative to the amount of the debt from Mahone to him, and If the court erred in this, the garnishee can- that the notes were not mentioned by him in not complain of it, nor can he complain of the that conversation. The court instructed the remaining part of the charge; for if the judg-jury that the inquiry for them was, whether The counsel for plaintiffs requested the court to charge the jury, that their judgment against the defendant was a lien on his house and lot; and that they were entitled to the proceeds arising from the sale of said property, after the notes named in the mortgage were satisfied. This charge the court refused. there was fraud or collusion between the garnishee and the debtor. That if they found that the notes were made in fraud or collusion, they would render a verdict in favor of the attaching creditors, for the amount of the surplus in the hands of the garnishee. This charge includes the substance of all the questions presented to the court or jury. We think the case was submitted as favorably for the garnishee as the facts warranted, and that he has no reason to complain in conse quence of the instructions given or refused. The plaintiff is not entitled to hold the surplus in his hands arising from the sale of the trust property, for the payment of the notes, under any stipulation in the deeds. These provide for a return of the surplus to the grantor, after the payment of the debts described. Nor can the real property conveyed in the deed be retained as a security for advances, or debts subsequently made on the strength of a parol engagement. Such a contract would be avoided by the Statute of Frauds. Nor is the deed of trust such a conveyance or title paper as to afford a security, as a deposit, for subsequent engagements. by their date-that is, by an assertion of the debtor. Nor was the order to appropriate the surplus to their payment proved, except by an acknowledgement to a stranger, after the writ of garnishment had been issued. The bona fides of the titles of the garnishee to the surplus in his hands was not supported by competent proof, and therefore the lien of the garnishment was properly maintained. The plaintiff contends that the proceeding by garnishment is a statutory proceeding, by which a creditor is enabled to reach a demand in favor of his debtor against a third person; and that the remedy can only be resorted to when the debtor himself could maintain debt or indebitatus assumpsit; and that the only issue which can be made upon an answer of the gar nishee is, indebitatus vel non. The Supreme Court of Alabama have decided, in the cases cited, that merely equitable demands or rights of action, not involving a debt or assumpsit, are not the subject of the garnishee process. But the same court has determined that money or effects in the hands of the garnishee, which are fraudulently withdrawn from the creditors of a defendant, may be reached, in an attachment or judgment, by that process. Hazard v. Franklin, 2 Ala.,349; Lovely v. Caldwell, 4 Ala, 684. And the Civil Code of Alabama, sec. 2523, provides explicitly for the attachment of a demand similar to that existing in this case. Judgment affirmed. Cited-1 Cliff., 343. In Ex parte Hooper, 1 Meriv. Ch., 7, Lord Eldon said: "The doctrine of equitable mortgage by deposit of title deed has been too long established to be now disputed; but it may be said that it ought never to have been established. I am still more dissatisfied with the principle upon which I have acted, of extending the original doctrine so as to make the deposit a security for subsequent advances. At all events, the doctrine is not to be enlarged. In the present case, the legal estate has been assigned, by way of mortgage. The mortgagee is not entitled to say this conveyance is a de posit, because the contract under which he holds it is a contract for conveyance only, and CHARLES E. GREENAUX, Treasurer of the not for deposit. JEAN LOUIS PREVOST, Plff. in Er., V. State Bank of Louisiana. siana to taxes. An inhabitant of Louisiana died in 1848 intestate The only other title that the garnishee has interposed against the claim of the attaching creditor is, that the debtor made a valid appro Power of U. S. by treaty to devest right of Louipriation of the surplus arising from the sale, to the satisfaction of a bona fide demand of the garnishee against him, prior to the service of the garnishment. The principle adopted by the courts of Alabama for such cases is, that the adverse claimant for property or effects seized at the suit of a creditor by attachment or execution, must prove the bona fides of his claim, if it is derived from the debtor after the origin of the creditor's demand; and the declarations or acknowledgements of the debtor will not be received to support the title. The recit. als in a deed or mortgage executed by him, or admissions made at the time of the execution, will not be received. Goodgame v. Cole, 12 Ala., 77; Nolen & Thompson v. Gwyn, 16 Ala., 725. Nor is the consideration of a note in favor of the claimant shown by the production of the note itself. De Vendel v. Malone, 25 Ala., 272. The objection to such evidence is said to be, that it can be manufactured by one indebted, and by that means a creditor might be defeated; for, in most cases, it would not be practicable for him to prove a negative, or disprove the statement made by his debtor. In the present case, the consideration of the notes was not proved: nor was their existence before the serv ice of the garnishment shown otherwise than and without issue, leaving property. By the laws Decided Jan. 13, 1857. IN ERROR to the Supreme Court of the State of Louisiana. This is a writ of error prosecuted from the decision of the Supreme Court of the State of Louisiana, rendered on a statute which has already been twice brought to the notice of this court. See cases of Mager v. Grima, 8 How., 490; Poydras v. Treasurer of Louisiana, 18 How., 192. The laws of Louisiana impose a tax of ten per cent. on the value of all property inherited in that State by any person not domiciliated there, and not being a citizen of any state or territory of the United States. Jean Louis Prevost, a French subject residing in France, claims the delivery to him of the 1856 PREVOST V. GREENAUX. estate in question, free from the tax of ten per cent.. and bases his claim to this exemption on the Consular Convention between the United States and France, concluded Feb. 23, 1853, ratified by the United States on April 1st, 1853, exchanged Aug. 11, 1853, and proclaimed by the President Aug. 12, 1853. 9 Stat. at L., 992. The Supreme Court of Louisiana, whilst recognizing the binding force of this treaty stipulation, held that it did not apply to the case before it, because the tax had accrued, and the inheritance had been acquired by the heir, long anterior to the date of the Treaty. From this decision, the heir has prosecuted the writ of error now before the court. A further statement of the case appears in the opinion of the court. Mr. Louis Janin, for plaintiff in error: When the law imposing a tax or penalty is repealed before that tax is collected, the right to recover it is lost. Case of City of New Orleans v. Mrs. Grailhe, 9 La. Ann., 562, decided Dec. 4, 1854; Cooper v. Hodge, 17 La., 476, and two other referred to in that decision. In the case of Cooper v. Hodge, the principle is expressed in this form: We have held, that if a judgment be correctly given under a law which is repealed pending the appeal, this court is bound to reverse it." The Supreme Court of the United States have acted on this principle in cases of much more difficulty than that now before the court. The Legislature of Virginia, by an Act passed in 1779, during the War, had authorized Virginia debtors of British subjects to discharge the debt by payment into an office existing under the state government. The defendants in error, under this Act, had paid into this office a portion of their indebtedness to the plaintiffs, and pleaded their discharge pro tanto under the Act. The plaintiffs replied the 4th article of the Definitive Treaty of Peace between Great Britain and the United States, of Sept. 3, 1783, in which it was stipulated that creditors on either side should meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts heretofore contracted. The State was held to have had full power to make the law; but it had been annulled by the Treaty, and the defendants in error were liable to the full amount, notwithstanding partial payment to the State. The U. S. v. The Peggy, 1 Cranch, 103. The Schooner Peggy was captured by a United States armed vessel and libeled as prize, ordered to be restored by the District Court, condemned by the Circuit Court on appeal, as lawful prize; when the owners of The Peggy prosecuted a She had writ of error to the Supreme Court. been captured as sailing under the authority of the French Republic. On Sept. 30, 1801, pending the writ of error, a convention was signed between the United States and the French Republic, and was ratified Dec. 21, 1801, which provided for the restoration of property capt ured, but not yet definitely condemned. It was held by the court, in the opinion delivered by Chief Justice Marshall, that if subse quent to the judgment, and before the decision 1-7 of the appellate court, a law intervenes and To impose, levy, and collect a tax, is an exercise of the sovereign power, as much as the levying and collecting a fine for misdemeanor. The repeal of the statute imposing one or the other, at once stops all action under it. The machinery for its collection provided by the statute, is paralyzed by the repeal. So far as the statutes for the regulation of trade impose fines or create forfeitures, they are doubtless to be construed strictly as penal, and not liberally as remedial laws. Mayor v. Davis, 6 Watts. & Serg., 269. Statutes levying duties or taxes upon subjects or citizens, are to be construed most strongly against the government, and in favor of the subjects and citizens; and their provisions are not to be extended by implication beyond the clear import of the language used. U. S. v. Wigglesworth, 2 Story, 369. No judgment can be rendered for a penalty' given by a statute after the statute is repealed, although the action was commenced before the repeal. Pope v. Lewis, 4 Ala., 487. From these principles and authorities, it follows that the right of the state to claim or recover the foreign succession tax of 1842, is lost from the moment of the promulgation of the Consular Convention of 1853, although the tax might have been claimed and recovered, if proceedings had been instituted, perfected and executed before that convention. Mr. J. P. Benjamin, for defendant in error: The case is clearly within the jurisdiction of this court, and the only question is, whether the court of Louisiana has rightfully construed the Treaty. Its decisions under it have been: First. That wherever the rights of the heir vested after the Consular Convention went into effect, the tax could not be recovered. Succession of Defour, 10 Ann., 392. 573 Second. That wherever the right of the heir vested anterior to the date of the Treaty, the right of the state vested at the same time. The latter proposition is the one now in dispute. 1. At what time, under the laws of Louisiana, did the rights of the State to the tax of ten per cent. vest? The Supreme Court of that State has held, ever since the year 1831, that under the State Statute, the rights of the heir and of the State both vested at the instant of the testator's death. Arnaud's Heirs v. His Executors, 3 La., 337; Quessart's Heirs v. Canonge, 3 La., 561; Succession of Oyon, 6 Rob., 504: Succession of Dey raud, 9 Rob., 358; Succession of Dufour, 10 Ann., 392; Succession of Blanchard, 17 Ann., 392. 2. The only remaining question is, whether the Treaty was intended to devest any title acquired prior to its passage. The terms of the Treaty are entirely prospect ive, and its language appears too plain to require any reference to canons of constriction. Frenchmen, after date, are to be considered, for all the purposes of the Treaty, as citizens of Louisiana. But the claim of the State would be good against its own citizens after the repeal of the taxing law, because vested prior to the repeal, as already shown by the authorities cited. Ergo, that claim is good against the Frenchmen. Mr. Chief Justice Taney deliverd the opinion of the court: This is a writ of error to the Supreme Court of the State of Louisiana. It appears that a certain François Marie Prevost, an inhabitant of that State, died in the year 1848 intestate and without issue, and possessed of property to a considerable amount. He left a widow; and, as no person appeared claiming as heir of the deceased, the widow, according to the laws of the State, was put in possession of the whole of the property by the proper authorities, in December, 1851. She died in March, 1853. In January, 1854, Jean Louis Prevost, a French subject residing in France, presented himself by his agent in Louisiana as the brother and sole heir of François Marie Prevost, and established his claim by a regular judicial proceeding in court. The laws of Louisiana impose a tax of ten per cent. on the value of all property inherited in that State by any person not domiciliated there, and not being a citizen of any state or territory of the United States. This tax is disputed by the plaintiff in error, upon the ground that the law of Louisiana is inconsistent with the Treaty or Consular Convention with France. This Treaty was signed on the 23d of February, 1853, ratified by the United States on the 1st of April, 1853, exchanged on the 11th of August, 1853, and proclaimed by the President on the 12th of August, 1853. The 7th article of this Treaty, so far as concerns this case, is in the following words: "In all the States of the Union whose laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property by the same title and in the same manner as the citizens of the United States. They shall be free to dispose of it as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves; and in no case shall they be subjected to taxes on transfers, inheritance, or any others, different from those paid by the latter, or to taxes which shall not be equally imposed." Proceedings were instituted, in the state courts by the plaintiff in error, to try this question, which were ultimately brought before the Supreme Court of the State. And that court decided that the right to the tax was complete, and vested in the State upon the death of François Marie Prevost, and was not affected by the Treaty with France subsequently made. We can see no valid objection to this judg ment. The plaintiff in error, in his petition to be recognized as heir, claimed title to all the separate property of François M. Prevost and his widow, then in the hands of the curator, and of all his portion of the community property, and of all the fruits and revenues of his succession from the day of the death of his brother. And, in adjudicating upon this claim, the court recognized the rights of the appellant, as set forth in his petition, and decided that he became entitled to the property, as heir, immediately upon the death of Fr. M. Prevost. Now, if the property vested in him at that time, it could vest only in the manner, upon the conditions authorized by the laws of the State. And by the laws of the States, as they then stood, it vested in him subject to a tax of ten per cent., payable to the State. And certainly a Treaty, subsequently made by the United States with France, could not devest rights of property already vested in the State, even if the words of the words of the Treaty had imported such an intention. But the words of the article, which we have already set forth, clearly apply to cases happening afterwardsnot to cases where the party appeared, after the Treaty, to assert his rights, but to cases where the right afterwards accrued. And so it was decided by the Supreme Court of the State, and, we think, rightly. The constitutionality of the law is not disputed, that point having been settled in this court is the case of Mager v. Grima, 8 How., 490. In affirming this judgment, it is proper to say that the obligation of the Treaty and its operation in the State, after it was made, depend upon the laws of Louisiana, The Treaty does not claim for the United States the right of controlling the succession of real or personal property in a state. And its operation is expressly limited "to the States of the Union whose laws permit it, so long and to the same extent as those laws shall remain in force." And as there is no Act of the Legislature of Louisiana repealing this law and accepting the provisions of the Treaty, so as to secure to her citizens similar rights in France, this court might feel some difficulty in saying that it was repealed by this Treaty, if the State Court had not so expounded its own law, and held that Louisiana was one of the States in which the proposed arrangements of the Treaty were to be carried into effect. Upon the whole, we think there is no error in the judgment of the State Court, and it must, therefore, be affirmed. PIERRE FELIX COIRON AND MARIE J. T. | the debts of the insolvent, which accompanied v. LAURENT MILLAUDON AND EDWARD SHIFF, Syndics, &c., of ALEXANDER LES SEPS, ET AL. (See 8. C., 19 How., 113-115.) Necessary parties to bill-no excuse that they are out of jurisdiction-decree cannot be made without them-objection may be taken in court below, or in appellate court. his application to the parish court, exceeded $177,000, and of his assets, $137,000. The assets sold for some $77,000; and after satisfying the charges and expenses of the proceedings, the balance was distributed among the Creditors under the direction of the court. This amount, some $60,000, fell short of satisfying the claims of the two principal creditors, Van Brugh Livingston, and Harriet, his wife, of New York, and the firm of Nicolet & Co., of New Orleans, which were secured upon the estate by mortgages. The object of this suit is to set aside the sale on the ground of irregularities in the insolvent In a bill to set aside sale and distribution of in-proceedings, which are set forth in detail in solvent's property for irregularities, by two of his heirs, the mortgage creditors or their representatives are necessary parties. That they were out of the jurisdiction of the court is no answer to the objection. The Circuit Court cannot make a decree in the absence of a party whose rights must necessarily be affected thereby. The objection may be taken at any time on the hearing in the appellate conrt. (Mr. Justice CAMPBELL, having been of counsel, did not sit in this cause.) Argued Dec. 11, 1856. Decided Jan. 15, 1857. the court: This is an appeal from the decree of the District Judge, sitting in the Circuit Court of the United States for the Eastern District of Louisiana. The bill was filed in the court below by two of the heirs of J. J. Coiron, against Alexander Lesseps, Laurent Millaudon, and others, to set aside a sale of a plantation and slaves to the two defendants named, in 1834, in pursuance of proceedings in a case of insolvency before a parish court in the City of New Orleans. The father of the complainants having become insolvent in 1833, applied to the court for liberty to surrender his property for the benefit of his creditors, and that in the mean time all proceedings against his person or property might be stayed, which application was granted, and the surrender of his property accepted. Theodore Nicolet was appointed syndic of the creditors, and such proceedings were had, that a sale of the plantation and slaves was directed in March, 1834, when the two defend ants became the purchasers. The inventory of NOTE.-Necessary parties in equity. See note to Marshall v. Beverly, 5 Wheat., 313. the bill. The court below, after hearing the case upon the pleadings and proofs, decreed against the complainants and dismissed the bill. The record is quite voluminous, but we have stated enough of the fact to present the questions upon which we shall dispose of the case. According to the law of Louisiana, on a surrender by the insolvent of his property for the benefit of creditors, the estate vests in the latter sub modo, and is disposed of by them through the agency of the syndic, under the supervision and control of the court before whom the proceedings take place. 2 Rob., 193, 194. They appoint the syndic and fix the terms and conditions of the sale, and have the charge of the estate in the mean time between the surrender and the final disposition. The creditors, therefore, are the parties chief. ly concerned in these proceedings; and as it respects those to whom the proceeds of the estate have been distributed, they are directly interested in upholding the sale; for, if it is set aside, and the proceedings declared a nullity, they would be liable to refund the share of the purchase money each one had received in the distribution. A court of equity, in setting aside a deed of a purchaser upon grounds other than positive fraud on his part, sets it aside upon terms, and requires a return of the purchase money, or that the conveyance stand as a security for its payment. 1 Johns. Ch., 478; 4 Johns., 536, 598, 599. This constitutes the essential difference between relief in equity, and that afforded in a court of law. A court of law can hold no middle course. The entire claim of each party must rest, and be determined at law, on the single point of the validity of the deed; but it is the ordinary case in the former court, that a deed not absolutely void, yet, under the circumstances, inequitable as between the parties, may be set aside upon terms. Nicolet & Co., and Van Brugh Livingston and wife, the mortgage creditors, or their legal representatives, were, therefore, necessary parties to the bill, as any decree made in the case disturbing the sale may seriously affect their interests. This objection has been anticipated in the bill, and an averment made that these parties were out of the jurisdiction of the court. But it is well settled, that neither the Act of Congress of 1839 (5 U. S. Stat. at L., 321, sec. 1), nor the 47th rule of this court, enables the |