of the interior and commissioner of Indian affairs shall determine whether, in their judgment, such contract or agreement has been complied with or fulfilled; if so, the same may be paid, and, if not, it shall be paid in proportion to the services rendered under the contract."

Such a claim may be, as already said, a matter pending in the department of the interior, within the meaning of the twelfth section of the act of 1887, but it is plainly not a suit against the United States with respect to which an appeal is provided for by the ninth section.

The application for a writ of mandamus must therefore be denied.

(148 U. S. 137)

BIER v. McGEHEE. (March 13, 1893.) No. 1,254.

CONSTITUTIONAL LAW-OBLIGATION OF CONTRACTS

-FEDERAL QUESTION.

Const. La. 1879, art. 233, declared the consolidated bonds of the state, held by the state for the Agricultural and Mechanical College and the Louisiana Seminary fund, to be null and void. The state treasurer thereafter fraudulently reissued and put such bonds in circulation. Held, that there was no contract between a subsequent purchaser and the state, the obligation of which was impaired by article 233, and that a suit by such purchaser against the seller to rescind the sale involved no federal question.

In error to the court of appeals for the parish of Orleans, state of Louisiana. Writ dismissed.

Statement by Mr. Justice BROWN:

This was a motion to dismiss a writ of error upon the ground that no federal question was involved.

Suit was begun by a petition filed by McGehee in the civil district court of the parish of Orleans, December 10, 1889, setting forth that in May, 1888, petitioner had purchased of defendant, Bier, a certain state bond numbered 788, "denominated and represented to be a consolidated bond of the state of Louisiana," for the sum of $1,000, issued January 1, 1874, under authority of Act No. 3 of the state legislature of 1874; that, after the purchase of said bond and payment therefor, it was claimed by the state of Louisiana, through the attorney general, as its property, and that it had been stolen by one Burke from the state treasurer, and the return of said bond, with $60 received in payment of the coupons attached thereto, was demanded by the attorney general. The petitioner further averred that the bond was purchased by him under the full belief that Bier was the lawful owner thereof, but that he was not at the time of the sale by him, or since, the owner thereof, and that he had good reason to believe and so charged that the bond was then the lawful property of the state of Louisiana, and part of the Agricultural and Mechanical College fund

held by the state; that said bond was worth less in his hands; that the defendant refused to repay the purchase price. He prayed for a judgment rescinding the sale of the bond, and that the defendant be condemned to take back the same, and return the amount paid therefor.

Defendant, in his supplemental answer, denied that he was ever the holder of the bond, or that he had ever sold the same to the plaintiff; and averred that he had never purchased or acquired any such bond that was not acquired in good faith, in open mar ket, before maturity, in the due and regular course of trade, as commercial paper; and that any law of the state of Louisiana supposed to affect or alter the contract contained in the consolidated bonds of the state, issued under the act of 1874, was repugnant to the constitution of the United States.

Upon the trial it was proved, and not denied by Bier, that he had purchased the bond after the adoption of the constitution of the state in 1879. The state treasurer's report of 9 was put in evidence to show that th ate was the owner of the bond at that tin. The court decreed that the sale of the bond be rescinded, and that the defendant, Bier, be compelled to take back the bond, with the coupons attached, and the sum of $60, received for the coupons paid in error, etc. Defendant appealed to the court of appeals of the parish of Orleans, which affirmed the judgment, and thereupon he sued out a writ of error from this court, which defendant in error, McGehee, moved to dismiss.

F. L. Richardson, for the motion. H. L. Lazarus, opposed.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

Plaintiff in error invokes the jurisdiction of this court upon the ground that article 233 of the constitution of the state of Louisi ana, which declared that the consolidated bonds of the state, held for the Agricultural and Mechanical College and the Louisiana Seminary fund, were null and void, was repugnant to section 10, art. 1, of the constitution of the United States, prohibiting states from passing laws impairing the obligation of contracts.

The article in question declares the debt due by the state to the Agricultural and Mechanical fund to be $182,313.03, being the proceeds of the sales of lands and land scrip granted by the United States to the state for the use of a college for the benefit of agriculture and the mechanical arts; directs that said amounts shall be placed to the credit of said fund on the books of the auditor and treasurer as a perpetual loan; that the state shall pay an annual interest of 5 per cent. on said amount from January 1, 1880, for the use of said college; and that the con

solidated bonds of the state, then held by the state for the use of said fund, were to be null and void after January 1, 1880, "and the general assembly shall never make any provision for their payment, and they shall be destroyed in such manner as the general assembly may direct."

That the constitution of a state is a "law" of the state, within the meaning of the constitution of the United States, prohibiting states from passing laws impairing the obligation of contracts, is not denied, and the plaintiff in error assumed the position that it is beyond the power of the state to annul or cancel bonds outstanding and presumably in the hands of bona fide purchasers. If Bier had been a holder for value of this bond when the constitution of 1879 was adopted, it would evidently be beyond the power of the state, by act of the legislature, or by an amendment to its constitution, to nullify such bond in his hands; but if, when the constitutional amendment was adopted, the bond was still in the possession of the state, there was then no contract with Bier upon which such amendment could operate, and hence no contract subject to impairment. City of New Orleans v. New Orleans Waterworks Co., 142 U. S. 79, 12 Sup. Ct. Rep. 142. There was no objection to the state declaring bonds still in its possession to be null and void. The amendment was practically an inhibition against issuing bonds of the state for a certain purpose.

The court found that there was no material difference between the facts of this case and those of a prior case against the same defendant, arising from the purchase of another of the same issue of bonds; and, in its opinion in such prior case, (Aycock v. Lee,) the court of appeals of Orleans held that it would take judicial notice of the fact that the bonds, while in the possession of one Burke, then treasurer of the state, had become and were null and void by the operation and effect of article 233 of the constitution; and that Burke, having fraudulently reissued and put such bonds in circulation, absconded from the state, and became and still was a fugitive from justice. The court further found that defendants received from the plaintiff $913.75 for a paper represented to be a consolidated bond of the state, which the state had declared to be null and void, and which was the lawful property of the state, and that defendants were never owners of said bond; that plaintiff did not know such facts when he purchased; and that*said bond was valueless in his hands. The court further found that these bonds were never put in circulation by the state, but, that, while they were held by the state in trust for the use of the Agricultural and Mechanical College fund, they were annulled by the constitution of 1879, and their destruction ordered; that the claim made that innocent holders were entitled to exemption from inquiry into the equities between the original parties was

never

wholly inapplicable to these bonds, which were issued and put in circulation by the state; that there was no equitable estoppel against the state, from the fact that the general assembly failed to have the bond destroyed, as required by the constitution, or from the fact that coupons attached to it were paid from the state funds set apart for the payment of the interest on the state debt; and that the negligence of the general assembly, the crime of the state treasurer, and the erroneous payment of said coupons, could not singly or operating together give validity to the bonds whose nullity had been declared, and whose destruction had been ordered. The court further held that what the plaintiff covenanted to purchase, and what defendants covenanted to sell, was a legal bond of the state; that there was an implied warranty on their part that the bond belonged to them, and that it was a genuine legally outstanding and negotiable bond of the state; that what the plaintiff received was a bond of no validity; and that "for this error of fact and of law as well regarding the essential quality of the bond sold, and without which plaintiff would not have purchased it, the contract may be rescinded."

It is quite evident from this statement that there was no federal question involved in the case. The only such question which could possibly have arisen related to the power of the state to annul by constitutional amendment its own obligations; but that could only be raised upon the theory that the obligation had been put in circulation, and that there was a contract on the part of the state to pay the holders. If the bonds were still in possession of the state, (and the court found that they were,) there was no contract to be impaired. The real questions involved were whether the bonds which had been stolen by the former treasurer were valid obligations of the state in the hands of McGehee, the plaintiff; and, secondly, whether the defendant, Bier, was liable for money received by him upon a consideration which had failed.

In the case of Sage v. Board, 144 U. S. 647, 650, 12 Sup. Ct. Rep. 755, it was said by this court, speaking of this same issue of bonds, that the supreme court of Louisiana had decided "that the governor, as the chief executive officer of the state, had no power whatever to deal with those bonds, or to dispose of them, except in the precise manner and for the distinct purpose pointed out by the law; and that any act of his in contravention of its provisions in that regard would be void, and could not confer on any person or holder of the bonds a right to recover them, or to enforce their liquidation or payment." This decision was held not to have raised a federal question, and the writ of error was dismissed.

It is true that article 233 did not identify the bonds beyond describing them as "the consolidated bonds of the state for the use of

the said fund," (Agricultural and Mechanical;) but the treasurer, in whose possession they were, could not fail to know what bonds were intended; and whether such bonds, subsequently stolen by him and put in circulation, were, though not identified as belonging to this fund, valid obligations of the state, in the hands of innocent holders, was not a federal question.

The writ of error will therefore be dismissed.

(148 U. S. 245)

HUME v. BOWIE,

(March 20, 1893.) No. 1,107.

EXCEPTIONS, BILL of - SETTLEMENT DEATH OF JUDGE -NEW TRIAL SUPREME COURT-JURISDICTION-APPEALABLE ORDERS.

1. Where a term of the circuit court of the District of Columbia has been extended indefinitely for the purpose of settling a bill of exceptions, and the attorneys are unable to agree upon it, and the judge dies before settling it, the supreme court of the district, in general term, has authority to grant a new trial, pursuant to rule 64 of that court, which provides for new trials when the judge is unable to settle the bill of exceptions.

2. An order by the general term of the supreme court of the District of Columbia, granting a new trial, in a case in which it has power to grant the same, is not a final judgment reviewable on writ of error in the supreme court of the United States.

3. Rule 2 of the supreme court of the District of Columbia provides that the May term of the circuit court shall not extend beyond the second Saturday in July. Rule 62 provides that the bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it. Held, that for this purpose the May term could be extended indefinitely up to and beyond the beginning of the succeeding term.

In error to the supreme court of the District of Columbia.

Action in the circuit court of the District of Columbia by William B. Bowie against Frank Hume on a contract of indorsement. Upon the death of plaintiff, Anne H. Bowie, executrix, was substituted as party plaintiff. Upon her death, Richmond Irving Bowie, administrator de bonis non, with the will annexed, was substituted. Verdict for defendant. Plaintiff took an appeal to the supreme court, general term, but the justice who had heard the cause died without settling the bill of exceptions. Thereupon plaintiff moved in the circuit court to set aside the verdict and for a new trial. By agreement this motion was heard in the general term, and was there granted. Defendant brings error. Heard on motion to dismiss the writ of error for want of jurisdiction. Granted.

Statement by Mr. Chief Justice FULLER: This was an action brought by William B. Bowie in the supreme court of the District of Columbia against Frank Hume, as indorser upon a promissory note. The defendant pleaded to the declaration; issue was Joined; and on the trial of the cause a ver

dict was rendered May 25, 1888, in favor of the defendant. During the trial various exceptions were reserved to the rulings and instructions of the court, which were duly noted at the time by the presiding justice upon his minutes. A motion for new trial was made and overruled June 2, 1888, and an appeal to the general term was thereupon taken, and a bond on appeal duly executed and approved.

The record discloses that on January 3, 1888, the court in general term entered an order directing that, in addition to the circuit court to be held by Mr. Justice Hagner on the fourth Monday of January, 1888, a second circuit court should be held at the same time by Mr. Justice Merrick, the court to be held by Mr. Justice Hagner to be known as "Division No. 1," and the court to be held by Mr. Justice Merrick to be known as "Division No. 2." On April 27, 1888, the court in general term ordered that the circuit courts then being held in divisions Nos., 1 and 2 should be continued further by the same justices through the May term thereof. This case was tried in the circuit court, division No. 2, by Mr. Justice Merrick; verdict returned May 25th; motion for new trial overruled June 2d; appeal prayed June 5th; bond approved June 12th. On July 14, 1888, an order was entered by that justice providing that "the May term of the circuit court, division number two, is hereby entered as extended, that the bill of exceptions not yet filed may be settled, to wit: [Here follow names of cases, including this case.]" On the same day, in division No. 1, the court ordered "the term of this court extended for the purpose of settling bills of exceptions and case in the following cases: [Cases named;] and thereupon the May term adjourned without day, except as above stated."

On January 24, 1889, an order was entered by the general term, assigning the justices to serve for the year 1889, as follows: "First, for the general term, Justices Hagner, James, and Merrick; second, for the circuit court, Chief Justice Bingham; third, for the equity court and orphans' court, Justice Cox; fourth, for the district court, Justice James; fifth, for the criminal court, Justice Montgomery."

April 8, 1889, the death of William B. ' Bowie was suggested, and Anne H. Bowie, executrix, was substituted as party plaintiff. and, on April 23d, she filed her motion to set aside the verdict and judgment, and to grant a new trial, "because the bill of exceptions containing the exceptions reserved on the trial of the cause cannot be settled, signed, and sealed as required by law, the justice of this court, who presided at the trial of this cause, (in division No. 2, May term, 1888, of this court,) having departed this life without having settled or signed and sealed the same."

Due notice of this motion was given, and

it was finally called up on June 8, 1889, before Chief Justice Bingham, holding a special term and circuit court, and "at the request of both parties, by their respective attorneys, was directed to be heard in the general term in the first instance." Subsequently the death of Anne H. Bowie was suggested, and Richard Irving Bowie, as administrator de bonis non, with the will annexed, substituted.

The motion in question was heard upon certain certificates and affidavits, which are set forth in a bill of exceptions taken upon the disposition of the motion. It appeared that the bill of exceptions preserved on the trial was prepared by counsel for plaintiff, and submitted to counsel for defendant, but that they could not settle it by agreement, and that, before it was considered by the justice who presided at the trial, the latter became ill, and afterwards, on February 6, 1889, died, leaving it unsettled.

On April 26, 1892, the motion was sustained by the general term, the judgment and verdict set aside, and a new trial granted. From this order a writ of error was sued out.

The following are sections of the Revised Statutes of the District of Columbia:

"Sec. 770. The supreme court, in general term, shall adopt such rules as it may think proper to regulate the time and manner of making appeals from the special term to the general term; and may prescribe the terms and conditions upon which such appeals may be made, and may also establish such other rules as it may deem necessary for regulating the practice of the court, and from time to time revise and alter such rules. It may also determine by rule what motions shall be heard at a special term, as nonenumerated motions, and what motions shall be heard at a general term in the first instance."

"Sec 803. If, upon the trial of a cause, an exception be taken, it may be reduced to writing at the time, or it may be entered on the minutes of the justice, and afterwards settled in such manner as may be provided by the rules of the court, and then stated in writing in a case or bill of exceptions, with so much of the evidence as may be material to the questions to be raised, but such case or bill of exceptions need not be sealed or signed.

"Sec. 804. The justice who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages; but such motion shall be made at the same term at which the trial was had.

"Sec. 805. When such motion is made and heard upon the minutes, an appeal to the general term may be taken from the decision, in which case a bill of exceptions or case shall be settled in the usual manner.

"Sec. 806. A motion for a new trial on a case or bill of exceptions, and an application

for judgment on a special verdict or a verdict taken subject to the opinion of the court, shall be heard, in the first instance, at a general term."

Among the rules of the supreme court of the District of Columbia are these:

"(2) The terms of the court shall be as follows: Of the general term, on the 4th Monday of January; 4th Monday of April; 1st Monday of October. Of the circuit court, on the 4th Monday of January; 2d Monday of May, which term shall not continue beyond the 2d Saturday in July, except to finish a pending trial; 3d Monday of October. Of the district court, on the 1st Monday of June; 1st Monday of December. Of the criminal court, on the 1st Monday of March; 3d Monday of June; 1st Monday of December. Of the special terms, on the first Tuesday of every month, except August, in which month there shall be no term of court."

"(54) Motions for new trial may be grounded on errors of law in the rulings of the justice presiding at the trial.

"First. The motion may be made upon the bills of exception, in which case it must be filed in the circuit court, but shall be heard in the general term in the first instance.

"Second. The justice who tried the cause may, in his discretion, before any bills of exceptions are prepared, entertain a motion to set aside the verdict for errors of law founded on the exceptions reserved during the trial and noted on his minutes. An appeal may be taken from the decision of the justice on such motion, in which case a bill of exceptions must be settled in the usual manner."

"(61) If a party desires to present for review in the general term the rulings or instructions of the presiding justice for alleged errors of law, he must, at the trial and before, verdict, except to such rulings or instructions; and he may at the time*of taking exception reduce the same to writing in a formal bill of exceptions, or the justice may enter the exception upon his minutes, and proceed with the trial, and afterwards settle the bill of exceptions.

"(62) The bill of exceptions must be settled before the close of the term, which may be prolonged by adjournment in order to prepare it.

"(63) Every bill of exceptions shall be drawn up by the counsel of the party tendering it and submitted to the counsel on the other side; and, where the bill of exceptions is not settled before the jury retires, the counsel tendering the bill of exceptions shall give notice in writing to the counsel on the other side of the time at which it is proposed that the bill of exceptions shall be settled, and shall also, at least three days, Sundays exclusive, before the time designated on such notice, submit to the counsel on the other side the bill of exceptions so proposed to be settled; and, if they cannot agree, it shall be settled by the justice who presided at the trial, and in that case the justice shall be at

*Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

This case comes before us on a motion to dismiss the writ of error for want of jurisdetion, upon the ground that the judgment brought here by the writ is not a final judgment. Baker v. White, 92 U. S. 176; Rice v. Sanger, 144 U. S. 197, 12 Sup. Ct. Rep. 664; Brown v. Baxter, 146 U. S. 619, 13 Sup. Ct. Rep. 260. The question involved is one of power; for, if the court had power to make the order when it was made, then it was not a final judgment, as it merely vacated the former judgment for the purpose of a new trial upon the merits of the original action. If the court had no jurisdiction over that judgment, the order would be an order in a new proceeding, and in that view final and reviewable.

*The rule is unquestionably correctly laid down in Muller v. Ehlers, 91 U. S. 249, that when judgment has been rendered, and the term expires, a bill of exceptions cannot be allowed, signed, and filed as of the date of the trial, in the absence of any special circumstances in the case, and without the consent of parties or any previous order of court; but it is always allowable, if the exceptions be seasonably taken and reserved, that they may be drawn out and signed by the judge afterwards, and the time within which this may be done must depend upon the rules and practice of the court and the judicial discretion of the presiding judge. Dredge v. Forsyth, 2 Black, 563; Chateaugay Ore & Iron Co., Petitioner, 128 U. S. 544, 9 Sup. Ct. Rep. 150.

The supreme court of the district had power to prescribe rules upon the subject, and had done so. Under those rules, whenever the judge was unable to settle the bill of exceptions, and counsel could not settle it by agreement, a new trial followed as matter of course. If, therefore, in this case, the bill of exceptions was open to be settled at the time of the granting of the new trial, the power to grant the latter existed. If the bill were settled, the court, in general term, could hear the case, and, if reversible error were found, could set aside the judgment; and, if the bill could not be settled, the judgment was necessarily so far in fieri as to be susceptible of being vacated under the rule. Ordinarily where a party, without laches on his part, loses the benefit of his exceptions through the death or illness of the judge, a new trial will be granted, (Insurance Co. v.

Wilson, 8 Pet. 291, 303; Borrowscale v. Bosworth, 98 Mass. 34, 37; People v. Judge of Superior Court, 41 Mich. 726, 49 N. W. Rep. 925; State v. Weiskittle, 61 Md. 48; Benett v. Steamboat Co., 16 C. B. 29; Newton v. Boodle, 3 C. B. 795; Nind v. Arthur, 7 Dowl. & L. 252;) and here the rule is so prescribed.

The rules also provided that the terms of court might be prolonged by adjournment for the purpose of settling bills of exceptions, and an order was accordingly entered prolonging the term at which this judgment was, rendered, for the purpose of doing that ing this case. This was equivalent to the prac tice in many jurisdictions of entering an order granting additional time, after the expiration of the term, in which to settle such bills. The provision as to the prolongation of the term for the particular purpose is a mere difference in phraseology, and not of the substance, and the question as to the close of the term in other respects is quite immaterial.

It is argued that as rule 2, fixing the terms of the circuit court, provides that the May term shall not continue beyond the second Saturday in July, except to finish a pending trial, the order extending the term under rule 62, for the special purpose of settling bills of exceptions, beyond the limit fixed by rule 2, could not extend such term beyond the commencement of the succeeding term, which was in this instance the third Monday of October, 1888. The May term, it is said, must necessarily have come to an end, either by the act of the justice who held it or by operation of law through the efflux of time and the commencement of the succeeding term. But we are of opinion that under these rules the term may be continued indefinitely by order of court, so far as the settlement of bills of exceptions is concerned, and concur in the views of the supreme court of the district expressed in Jones v. Railroad Co., 18 D. C. 426, where it was held that rule 62 was valid, and that, while it would be more proper to specify the time to which the term might be extended under the provisions of that rule, yet an omission to do so did not invalidate the order.

It is to be remembered that the supreme court of the district sitting at special term and the supreme court sitting in general term is still the supreme court; that the judgment of the general term setting aside a verdict and judgment at law, and ordering a new trial, is equivalent to remanding the cause to the special term for a new trial; that an appeal from the special to the general term is simply a step in the progress of the cause during its pendency in the court; and that, though the judges may differ, the tribunal remains the same. Railroad Co. v. Moore, 121 U. S. 573, 7 Sup. Ct. Rep. 1334; Ormsby v. Webb, 134 U. S. 62, 10 Sup. Ct. Rep. 478. Some other judge must act on a motion for new trial by reason of inability created by death, and, while this order was entered at a term subsequent to that at which the judg