The bank has, therefore, no specific claim upon the property, nor is there any trust which a court of equity can enforce; and it was well said by the Circuit Justice, that, without some constituted trust or lien, A creditor has only the right to prosecute his claim in the ordinary courts of law, and have it adjudicated before he can pursue the property of his debtor by a direct proceeding in equity. The decree of the Circuit Court is affirmed. App., 29 Pa., 9. Unless, therefore, the convey-sition of which money belonging to the bank ances of the partners in this case and the Act of was applied. fusion were fraudulent, the bank of which the complainant is receiver has no claim upon the property now held by the New Orleans and Carrollton Railroad Company, arising out of the facts that it is a creditor of the partnership, and was such when the property belonged to the firm. The bill, it is true, charges that the several transfers of the partners were illegal and fraudulent, without specifying wherein the fraud consisted. The charge seems to be only a legal conclusion from the fact that some of the transfers were made for the payment of the private debts of the assignors. Conceding such to have been the case, it was a fraud upon the other partners, if a fraud at all, rather than upon the joint cred- FRANCIS A. KING ET AL., Piffs. in Err., itors, a fraud which those partners could waive, and which was subsequently waived by the act of fusion. Besides, that Act made provision for some of the debts of the partnership. And it Cited-106 U. S., 655; 16 N. W. Rep., 509; 3 McCrary, 371. V. UNITED STATES. (See S. C., 9 Otto, 229-234.) bond. *1. Where taxes long past due to the United States are paid to the Collector of Internal Revenue, he and his sureties are liable on his bond for the amount so paid, though it had not then been returned to the assessor's office, or passed upon by him, nor the return, handed to the collector by the tax payer, sworn to. has been ruled that where one of two partners, Collector and sureties, liability of—assessment— with the consent of the other, sells and conveys one half of the effects of the firm to a third person, and the other partner afterwards sells and conveys the other half to the same person, such sale and conveyances are not prima facie void, as against creditors of the firm, but are prima facie valid against all the world, and can be set aside by the creditors of the firm only by proof that the transactions were fraudulent as against them. Kimball v. Thompson, 13 Met., 283; Flack v. Charron, 29 Md., 311. A similar doctrine is asserted in some of the other cases we have cited; and, see, Allen v. Center Val. Co. [supra]. In the present case we find no such proof. We discover nothing to impeach the bona fides of the transaction, by which the property became vested in the railroad company. Thus far we have considered the case without reference to the provisions of the Louisiana Code, upon which the appellant relies. Article 2823 of the Code is as follows: The partner ship property is liable to the creditors of the partnership in preference to those of the individual partner." We do not perceive that this provision differs materially from the general rule of equity we have stated. It creates no specific lien upon partnership property, which continues after the property has ceased to be long to the partnership. It does not forbid bona fide conversion by the partners of the joint property into rights in severalty, held by third persons. It relates to partnership property alone and gives a rule for marshaling such property between creditors. Concede that it gives to joint creditors a privilege while the property belongs to the partnership, there is no subject upon which it can act when the joint ownership of the partners has ceased. Article 3244 of the Code declares that privileges become extinct by the extinction of the thing subject to the privilege." What we have said is sufficient for a deter mination of the case. If it be urged, as was barely intimated during the argument, that the property sought to be followed belongs in equity to the bank, or is clothed with a trust for the bank, becaused it was purchased with the bank's money, the answer is plain. There is no satisfactory evidence that it was thus purchased. It cannot be identified as the subject to the acqui 2. The case of Bk. v. U. S., 19 Wall., 227 [86 U. S., XXII., 80], decides explicitly that the obligation to pay the tax on dividends or interest does not depend on an assessment by any officer and a suit for such tax can be sustained without it. That case governs the present. The tax so paid is public money covered by the terms of the bond. [No. 161.] Argued Jan. 30, 1879. Decided Mar. 24, 1879. IN ERROR to the Circuit Court of the United States for the Northern District of Ohio. Mr. Edwin B. Smith, Asst. Atty-Gen., for defendant in error. Mr. Justice Miller delivered the opinion of the court: This is writ of error to a judgment of the circuit court against Harry Chase and his sureties on his official bond as Collector of Internal Revenue for the Tenth District of Ohio. The sureties alone join in the writ, and the case having been submitted to the court below without a jury, the principal error assigned is that on the facts found by that court the judgment should have been in their favor. The substance of the facts so found is, that while Chase was in office as collector, and while the defendants were liable on his bond for his official acts, he received from the treasurer of the Toledo, Wabash and Western Railroad Com pany, as and for the tax on interest paid on their mortgage bonds, the sum of $24.923.87, which he did not pay into the Treasury of the United States, and of which he neglected to render any account to the Government. As it is on the particular circumstances of this payment to Chase that the defendants rely, it is necessary to state them with some care as they appear in the findings of the court. *Head notes by Mr. Justice MILLER. It thus appears that on the first day of June, 1868, the railroad company was indebted to the United States, for the five per cent. tax on interest paid by it on its mortgage bonds, the sum of $112,778, which was on that day paid to Chase in three checks of the treasurer of the railroad company on two different banks of Toledo, on which the money was paid to Chase by the banks. The taxes for which this sum was paid, included the whole amount of the taxes for the years 1865, 1866 and 1867. Of this sum there was due: For the year 1865, For the year 1866, For the year 1867, This entire sum, as we at the same time by two that date. $19,422.50 have said, was paid different checks of At the time of this payment there was delivered to Chase six separate returns of the taxes so due in the form prescribed by law to be made to the assessor of taxes, which were subscribed by the treasurer of the company, but not sworn to, and which had not then been filed with or delivered to said assessor, but all of which were delivered by Chase to the assessor, except the returns for the months of August, September and October, 1867, which were the latest returns so delivered to Chase at the time the money was paid. These returns he did not deliver to the assessor, nor did he make any mention of them in his report to the Government at any time, and he retained the amount of them out of the money received from the treasurer of the company. It was five years after this before the officers of the Government discovered that he had received this sum above what he had accounted for, and in the meantime he had become in solvent. The proposition of defendants' counsel is, that because this money was not received by Chase on any return made to the assessor, or on any assessment made by him or by the Commissioner of Internal Revenue, for such taxes, and because the return delivered to Chase was not verified by oath, it was a voluntary deposit of the money in his hands by the treasurer of the company, and was not received by him in his official character. That it was not his duty to receive it for the Government under such circumstances, and his sureties are not liable because it was an unofficial act. The argument has been pressed with great ingenuity and skill, and with many illustrations; but in all its forms it amounts to the averment that Chase had no legal authority as Collector of Internal Revenue to receive the money for the Government under the circumstances named, and the payment was not a lawful or valid payment. There can be no question that Chase understood himself as receiving the money for the Government, and in payment of the taxes due. Nor is there any question that the treasurer of the railroad company intended it as payment to Chase in his official character as collector, and supposed he had paid the taxes by so doing; for Chase gave him three separate receipts in which the taxes for each of the years we have mentioned are set out, and also the months of the year in which they accrued, which he signed officially as collector, and declared in each receipt that it was in full of the account. Nor can there be any doubt that these taxes were owing and then due to the United States; for the blank form used by the treasurer in making these returns shows that such returns were, by law, to be made to the assessor on or before the 10th day of the month following that in which the interest became due and payable, and were to be paid to the collector on or before the last day of that month. The latest of the taxes in the case before us had long been due. Part of them had been detained by the railroad company over two years. All of them over six months. The company, by the returns which were handed to the collector, acknowledged the sums therein stated to be due, and tendered him the money. There can be no question raised as to the validity of the tender (because it was in bank checks indorsed good by the bank instead of money), unless objection had been made to the character of the tender. The narrow question, then, is, whether, when a corporation presents to the collector a statement of taxes long past due, which taxes must in the end be paid to him, and tenders him the full payment of said taxes, he may not receive them and give a valid acquittance for the amount so received. It is not necessary to decide that such transaction would bar a recovery by the United States of any sum in excess of that paid, which might afterwards be found to be owing for the same period and for the same tax. The simple question is: was it a valid payment for that amount, and to that extent, which the collector might lawfully receive and be bound to pay to the Government. To hold the contrary is to decide that a debt long past due and acknowledged to be due by the debtor cannot be paid, when he is willing to pay, and the proper officer of the Government ready to receive it, because the debtor has neglected to report the same facts to some other officer, or that officer has neglected to make report of the facts. Of the duty of the railroad company to pay the money as speedily as possible there can be no doubt. When it admitted the obligation and offered to pay it, was there no one to whom it could pay it? Section 3142 Revised Statutes, then in force, provides for the appointment of a Collector of Internal Revenue for every collection district. Section 3143, in prescribing the conditions of his official bond, makes it his duty to account for and pay over to the United States all public money which may come into his hands or possession, and this condition is in the bond which is the foundation of the present suit. Money paid for taxes past due and received by the collector as such, and for which he gives a receipt as collector, specifying with precision the taxes for which it is paid, is public money. If it is not, whose money is it? The tax payer has parted with it, in voluntary payment of a debt due the United States. The collector appointed by the United States has received it as money paid to the United States on a debt due the United States. It is not, therefore, his money. It is the property of the United States, and within the meaning of the bond it is public money. The answer made to this by counsel is that the debt was not due, or, at least, not payable, until the assessor had received and acted on the return made by the corporation. There is noth- | MARY R. MONTGOMERY, by ROSELLA ing in the statute which says this in terms. If it MONTGOMERY, her Tutrix, Next Friend and be sound it must be an implication, and we do Guardian, Piff. in Err., not not see how such an implication can arise. That such an assessment was not made long before was owing to the neglect of the company to make proper returns. Did that neglect make the taxes, which should have been paid a year v. HENRY SAMORY. (See S. C., 9 Otto, 482-491.) before, any less a debt from that time? And can Decision by court-Lousiana law-judicial sale it be said they were not due at the time the statute says they should be paid, because the company failed to make the report which it was its duty to make? -supersedeas. 1. A court does not err in not submitting a case to a jury where the issues to be tried are issues of law, or where the parties waived a jury trial. 2. In Louisiana, definitive judgments, where the court has jurisdiction and due notice is given to the defendant, bear the force of res judicata and are conclusive of the rights of the parties. [No. 178.] If there could be any doubt upon this point, it was set at rest by the decision of this court in Bk. v. U. S., 19 Wall.. 227 [86 U. S., XXII., 80], where the same objection was taken to a 3. A judgment confirming and homologating a suit to recover the tax. The court held explicitly judicial sale has the force of res judicata and operthat the obligation to pay the tax did not de-ates as a bar against all persone. 4. A devolutive appeal never operates as a superpend on an assessment made by any officer whatsedeas. ever, but that the facts being established on which the tax rested, the law made the assess- Argued Mar. 11, 1879. Decided Mar. 24, 1879. ment, and an action of debt could be maintained to recover it though no officer had made an assessment. So that, both on principle and authority, we are of opinion that the judgment, for the sum received by the collector and not paid over, with interest, is right and must be affirmed. See also, U. S.v. Ferrary,93 U. S., 625 [XXIII., 832]. Section 825, Revised Statutes, enacts that "There shall be taxed and paid to every district attorney two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, and conducted by him, in which the United States is a party, which shall be in lieu of all costs and fees in such proceeding." The court in this case, after a motion for retaxation, ordered that this two per cent. on the sum recovered, amounting to $712.77, be taxed against defendants. In this we think there was error. ERRO RROR to the Circuit Court of the United Mr. Thomas Hunton, for plaintiff in error. Messrs. Henry C. Miller and P. Phillips, for defendant in error. Mr. Justice Clifford delivered the opinion of the court: Courts and jurists everywhere agree that the title to real estate is governed by the laws of the place where it is situated; the universal rule being that the title to such property can only be acquired, passed, or lost according to the lex loci rei sita. Story, Confil. L., 6th ed., sec. 424; Wharton, Confil. L., sec. 273. Enough appears in the record to show that the father of the minor plaintiff owned the property in controversy, and that he being indebted to the defendant in the sums expressed in the four 1. The section applies only to cases where the promissory notes referred to in the transcript, money is collected or realized. This cannot be executed to his creditor the two mortgages untold until it is done, and the sum cannot, there- der which the defendant claims that he ultifore, be taxed in the judgment against defend- mately acquired his title to the premises. Unant. Suppose in the present case half the judg-der the law of the State, where the property is ment is realized and no more, then the sum taxed is twice as much as the law allows. 2. This two per cent. is to be in lieu of all costs and fees in such proceeding. If it be costs taxable against defendants, then where, after a long litigation, the defendant is adjudged to pay $10 and costs, he escapes by paying $10.20 in full. This is obviously not the purpose of the statute, but must be its results if the word "taxed" in the section means taxed in court against the defendant. situated, the mortgages imported a confession of judgment for the amount which they were executed to secure, less what should be paid before breach of condition. Default of payment having subsequently been made, the mortgagee filed his petition in the third district court, praying that the mortgagor might be summoned to answer and that he should be decreed to pay the amount of the debt secured, with mortgage privilege upon the property described in the mortgages. Process was issued, and the sheriff returned "Not found," and that the mortgagor was out of the State. Due proceedings followed, which were, that the mortgagee filed a supplementary petition setting forth the return of the sheriff, and prayed that a curator ad hoc might be appointed, and that he should be served with a proper citation. Pursuant to the prayer of the petition, the court made the requested appointment, and the curator having been duly served, appeared and filed an Mr. Chief Justice Waite did not sit in this answer. Hearing was had, and judgment was case, nor participate in its decision. The section was no doubt intended to establish a rule of compensation as between the Government and its attorney, by which, when he has been successful, he gets a commission of two per cent. for collection, but leaves him his ordinary statutory fee where nothing is realized. So much of the judgment, therefore, as relates to this sum taxed in the costs is reversed, and the remainder of the judgment is affirmed. Cited-107 U. S., 130; 1 McCrary, 7; 7 N. W. Rep., 706. NOTE.-Conclusiveness of judgment. See note to Bank of U. S. v. Beverly, 42 U. S. (1 How.), 134. entered for the mortgagee in accordance with | plemental petition, in which she alleged two the prayer of the petition. other grounds of claim: (1) That the property, at the date of the judgment in favor of the mortgagee and at the time of the sale, was in posses sion of the United States as abandoned property. (2) That there never was any valid or legal seizure of the property. Two years later the mortgagor filed his petition in the court, complaining that the judgment had been rendered against him without his having been previously cited to appear, as the law directs, and prayed for a devolutive appeal, which was seasonably granted by the court. Both parties appeared in the Supreme Court of the State, and the appellant having suggested the death of the mortgagor and that his widow had been confirmed as natural tutrix of her minor child, she, the tutrix, was made a party to the appeal. More than a year had elapsed from the date of the judgment before the petition for an appeal was filed, but it was obtained under that provision of the Code which makes an exception in favor of absentees, to whom a delay of two years is granted. Lambert v. Conrad, 18 La. Ann., 145. Four peremptory exceptions were filed by the defendant to the supplemental and amended petition: (1) That it changes entirely the cause of action and the demand set forth in the original petition. (2) That it alters the plaintiff's pleadings and the basis and foundation of the suit. (3) That it is vague and general, without any clear and precise statement of the claim. (4) That it changes the substance of the demand, the ground of claim, and the defense. Those exceptions were heard separately from the other questions in the case, and having been overruled by the court, the defendant filed what is denominated in the record an exception and answer to the supplemental and amended petition, as follows: (1) That the petition sets forth no cause of action. (2) That the cause of action is barred by the prescription of five years. (3) That the exceptions pleaded to the original petition are a bar to the supplemental petition. (4) That it is not true that the property was in the Record proof showed that the mortgagor was an absentee, and the appeal was taken to enable the appellant to contest the point that the service on the curator ad hoc was sufficient to put the rights of the absentee in issue in the foreclosure proceedings. All matters of the kind were necessarily in issue and, the parties having been fully heard, the court affirmed the judg-possession of the United States, as alleged. (5) ment of the subordinate court. That the sheriff did legally seize the property, and that the title of the defendant is just and legal. Formal application was made to set aside the agreement to waive a trial by jury, but it does not appear that it was pressed, and it was never granted. Instead of that, the record shows that the questions involved were reargued by the counsel on each side, and that the court entered judgment that the exceptions filed by the de Pending the appeal, which was devolutive only, the property was sold under an execution issued on the judgment rendered in the court of original jurisdiction, and the mortgagee became the purchaser at the sheriff's sale. By the record it also appears that on the 10th of March of the next year, and before the appeal was determined, the mortgagee and purchaser at the sale applied to the same district court for a monition to protect his title thus acquired, as he was aufendant be sustained, and that the plaintiff's thorized to do under the law and jurisprudence of the State. R. S. La., 469. Publication as required by law was duly made, and such regular proceedings followed as terminated in a judgment in favor of the mortgagee and purchaser, that the said sale be confirmed and homologated according to law. Seven years subsequently, to wit: on the 29th of March, 1871, the widow of the mortgagor, as tutrix of the minor plaintiff, filed her petition in the Circuit Court of the United States, praying the court to enter a decree that the title to the property acquired by the "mortgagee and purchaser at the sheriff's sale is null and void.' Due process was served; and the respondent appeared and filed an exception to the jurisdiction, which having been overruled by the court, the respondent filed an answer, setting up several defenses. Eight peremptory exceptions were also filed by the respondent at a later period. Testimony was not taken by either party, and they, having waived a trial by jury, submitted the cause to the court. Arguments of counsel followed the agreement to submit the cause; and the court, the District Judge presiding, rendered judgment in favor of the plaintiff, holding that the judgment of the third district court of the city is null and void. Immediate application for a new trial was made, and the same court at a subsequent session, the Circuit and District Judges presiding, granted the application. Leave being granted, the plaintiff filed an amended and sup suit be dismissed with costs. Exceptions in the usual form as at common law were filed by the plaintiff to the rulings and decisions of the court, and she sued out the present writ of error. Two errors are formally assigned, to the effect as follows: (1) That the court, in view of the facts alleged in the pleadings, erred in deciding the cause without the intervention of a jury. (2) That the court erred in maintaining the peremptory exception of res judicata, and the peremptory exception that the judgment of the third district court confirming and homologating the sale made to the defendant operate as a complete bar to the plaintiff's claim. Beyond question, both of these peremptory exceptions were filed before the new trial was ordered; but, inasmuch as they were subse quently sustained by the circuit court, and are embodied in the bills of exceptions exhibited in the record, they are properly here for re-examination under the present writ of error. Viewed in that light, it follows that there are three questions presented for decision: (1) Whether the court erred in not submitting the case to a jury. (2) Whether the court erred in holding that the judgment of the third district court is conclusive that the sale was made according to law, and that such a judgment cannot be incidentally and collaterally attacked or annulled. (3) Whether the court erred in holding that the judgment of the third district court pursuant to the process of monition, operated as a complete bar to the present suit. parties stipulated that the court should find the facts, as the record shows that the Judge presiding when the first judgment was rendered complied with that part of the stipulation. His finding of facts was before the two Judges when the new trial was granted, and constituted the foundation of the court's action. New pleadings were subsequently filed by both parties, which presented issues of law for the determination of the court, arising out of the duly certified copy of the judgment rendered in the third district court foreclosing the mortgage as affirmed by the Supreme Court of the State, and the monition judgment of the same court, from which no appeal was ever taken. Other questions were litigated in the progress | fact; nor does it make any difference that the of the suit; but, inasmuch as these three are the only ones included in the formal assignment of errors, none other will be much considered. Peremptory exceptions, in the jurisprudence of that State, are of two classes, of which the first is equivalent in import to a demurrer at common law, and of course must in all cases be adjudged by the court. Somewhat different rules apply in the second class, which, without going into the merits of the cause, show that the plaintiff cannot maintain the action either because it is prescribed or because the cause of action has been destroyed or extinguished. Code, Pr., 1870, art. 345. Such an exception may be pleaded in every stage of the litigation previous to the definitive judgment, but the rule is that it must be pleaded specially, and that sufficient time must be allowed to the adverse party to make defense. Code, Pr., 1870, art. 346. Nothing can be plainer in legal decision than the proposition that the two exceptions mentioned were well pleaded in the circuit court, as appears by the sixth and seventh articles of the answer which the defendant filed to the suit of the plaintiff. Conclusive support to that proposition is also found in the opinions of the Supreme Court of the State, set forth in the transcript and officially reported. Samory v. Montgomery, 19 La. Ann., 333; S. C., 27 La. Ann., 50. Viewed in any light, it is clear that the first assignment of error must be overruled. Res judicata, as pleaded in the sixth peremptory exception of the defendant, is, in substance and effect, the same as the plea in bar of a former recovery at common law, in respect to which, in order that it may be a valid defense and in capable of collateral attack, it must appear that the opposite party had notice of the suit, and that the court rendering the judgment had jurisdiction of the case. Judgments, in the jurisprudence of that State, as well as elsewhere, are open to inquiry as to the jurisdiction of the court and notice to the defendant. Christmas v. Russell, 5 Wall., 290 [72 U. S., XVIII.,475]; Webster v. Reid, 11 How., 437. Definitive judgments, where the court has jurisdiction and due notice is given to the defend. ant, bear the force of res judicata and, of course, are conclusive of the rights of the parties. Civ. Code, art. 539. Much discussion of the first assignment of error is unnecessary, for two reasons: (1) Because the issues presented under the peremptory exceptions were issues of law for the determination of the court. (2) Because the parties waived a jury trial by consent, and stipulated that the case should be tried by the court. Two judgments properly certified were intro- Jurisdiction of the third district court is adduced by the defendant in support of his permitted, and sufficient has already been remarked emptory exceptions, of which the first was the to show that the defendant was an absentee, judgment of the third district court foreclosing and that the notice given to the curator ad hoc the mortgages, as affirmed in the Supreme was a sufficient compliance with the requireCourt. Attempt is made to assail that judgment ment of law. Decisive proof of that proposition upon the ground that the absence of the mort- is found in the fact that he went voluntarily gagor under the circumstances did not justify out of the jurisdiction, under circumstances that the appointment of a curator ad hoc and the show that he cannot complain of legal proceedsubsequent proceeding which followed that ap-ings regularly prosecuted against him in his abpointment. sence. Ludlow v. Ramsey, 11 Wall., 581 [78 U. S., XX., 216]; University v. Finch, 18 Wall., 106 [85 U. S., XXI., 818]. granted for the reasons set forth in the petition, which plainly showed that the prior action of the court in appointing the curator ad hoc was correct. Good reasons exist to conclude that the question argued here is the exact question which was presented to the Supreme Court of the 3. When judgment was rendered for the State to which the case was appealed from the mortgagee in the third district court, the mortthird district court. In disposing of the case, the gagor appeared and filed a petition for a devoSupreme Court said that the only question pre-lutive appeal to the Supreme Court, which was sented was whether the mortgagor, at the time the service was made, was an absentee in legal contemplation, to whom a curator ad hoc could be appointed, and contradictorily with whom a suit might be prosecuted and a valid judgment obtained against the absent person. Such is the statement of the Judge who gave the opinion, and the facts disclosed confirm the statement and show to a demonstration that the exact question presented here was fully and expressly decided by that court. Samory v. Montgomery [supra.] 2. Proof of a conclusive character is exhibited in the record to show that the parties in this case waived a trial by jury; but it is not necessary to rest the case upon that proposition, as it is clear that the issue presented by the peremptory exception was one of law and not of Such an appeal does not operate as a supersedeas, and the mortgagee and purchaser of the property, in the meantime applied to the clerk of the court, in whose office the deed of sale was recorded, for a monition or advertisement in conformity to an Act of Legislature of the State, entitled "An Act for the Further Assurance to Purchasers at Judicial Sales," and praying that the process might be granted requiring all parties alleging any informality or irregularity in the said sale to show cause, if any they had, why the sale should not be confirmed and homologated. Advertisements as required were duly published; and, no opposition appearing, the |