had given as sureties of Oliver Holman, Paymaster in the Army of the United States. Holman, though dead, was named in the writ. The bond was for the sum of $20,000, and was sub ject to three conditions, namely: that he should faithfully discharge his duties as paymaster, that he should regularly account when there unto required for all moneys received by him, and "Should refund at any time when thereunto required any public moneys remaining in his hands unaccounted for."

The only breach of this bond alleged in this declaration is that he did not refund when thereunto required the sum of $3,320.02, with interest. The defendants were duly served with

WILLIAM MCINTYRE, Piff. in Err.,

V.

JOHN GIBLIN.

Negligent shooting-damages for.

1. In an action for negligent shooting and wound

ing plaintiff, there is no error in the charge to the jury, that, in computing the damages, they might take into consideration "a fair compensation for the physical and mental suffering caused by the injury." words "and mental 2. The charge was not erroneous because the were included.

[No. 173.] Submitted Nov. 24, 1879. Decided Dec. 1, 1879.

after several continuances from May Term, 1873; until June, 1876, made default. On the assessment of damages they appeared at the hearing and an agreed statement of facts was filed. On this the court entered a judgment for the sum claimed in the declaration and interest from the service of the writ, to which judgment both parties bring writs of error.

To the error assigned by the defendants it is sufficient to say that, having been served with the writ and appeared by counsel, and having thereafter suffered a voluntary default, that default was a confession of indebtedness on account of the breach of the bond assigned, namely: the failure of Holman, their principal, to pay over the moneys in his hands when there unto required and of such demand as raised the obligation to pay by his sureties. There remained only the question of the amount due from him on account of money in his hands, and of this the auditor's statement of account was evidence which was uncontradicted. There is, therefore, no error of which they can complain.

The United States, however, asserted a right to interest on the amount found due by the auditor from the date at which Holman ceased to be paymaster, namely: Nov. 30, 1865.

Without attempting to decide any other case but this, we are of opinion that the breach of the bond on which the defendants were sued did not occur until Holman, his legal representatives, or his sureties, were required to refund moneys in his hands; that is, until some notice was given that a definite sum had been found in his hands, due the United States, by the proper accounting officer. Of course, until there was a breach of the condition of the bond, which rendered him or his sureties liable, there could be no right to interest on account of such breach.

The agreed statement shows that no such statement was made or rendered to Holman in his lifetime, or any demand to refund. Nor does it appear that any such statement was rendered to his executors, or a demand made of them or of the sureties, except as it was made by the service of the writ.

We are, therefore, of opinion that the earliest moment at which anyone became liable on account of the breach of the condition of the bond now sued on was the service of the writ on the defendants, and that such service was a sufficient demand.

As the court properly allowed interest on this basis, the judgment is affirmed.

Cited 106 U. S., 538.

ritory of Utah.

The case is sufficiently stated by the court. Messrs. Sheeks & Rawlins and S. A. Merritt, for plaintiff in error:

Only in actions for willful and malicious injuries, not for injuries arising from negligence, can damages for mental suffering be recovered.

Johnson v. Wells, 6 Nev., 224; Wilson v. Young, 31 Wis., 574; Field, Dam., sec. 630; 2 Greenl. Ev., sec. 267, and note; Sedg. Dam. (marg.),35– 37; Wadsworth v. Treat, 43 Me., 163; Curtis v. R. R. Co., 18 N. Y., 534.

Messrs. Hoge & Jonasson and E. D. Hoge, for defendant in error:

That compensation for mental, in connection with physical, suffering may be recovered in an action like the present, is well established.

Sher. & Redf. Neg., sec.606; R. R. Co. v. Barron, 5 Wall., 90, 105 (72 U. S., XVIII.,591,1594); Ransom v. N. Y. & Erie R. R. Co., 15 N. Y., 415; Curtiss v. R. R. Co., 20 Barb., 285; S. C., 18 N. Y.,534; Morse v. Auburn, etc., R. R. Co., 10 Barb., 621; Peoria Bridge Asso. v. Loomis, 20 Ill.,235; Beardsley v. Swann, 4 McLean, 333; Oliver v. N. Pacif. Tr. Co., 3 Oreg., 84; West v. Forrest, 22 Mo., 344; Masters v. Warren, 27 Conn., 293; Memphis, etc., R. R. Co. v. Whitfield, 44 Miss., 466; Seger v. Barkhamsted, 22 Conn., 290; Canning v. Williamstown, 1 Cush.. 451; Hanson v. Foole, 1 Sawy., 497; Koch v. Oregon Steamship Co.. reported in Forum, Oct. 1875, p. 683; Pa. & O. Canal Co. v. Graham, 63 Pa., 290; Smith v. Holcomb, 99 Mass., 552; Holyoke v. R. R. Co., 48 N. H., 541; Matteson v. Ř. R. Co., 62 Barb., 364; Smith v. Overby, 30 Ga., 241; Cox v. Vanderkleed, 21 Ind., 164; Gould v. Christianson, Blatchf. & H., 507; Cooper v. Mullins, 30 Ga., 152.

The only case which seems to give expression to a contrary doctrine from that stated in the above authorities, is the case of Johnson v. Wells, 6 Nev., 224.

But that case has been overruled by the same court, in the case Quigley v. C. P. R. R. Co., 11 Nev. 369.

Mr. Chief Justice Waite delivered the opinion of the court:

This was a suit to recover damages for the careless and negligent shooting and wounding of Giblin, the plaintiff below, by McIntyre, the defendant. On the trial the court charged the jury that in computing the damages, they might take into consideration"A fair compensation for the physical and mental suffering caused by the injury," and the only question submitted to us now is, whether this charge was erroneous because the words "and mental" were included.

MCGHAN, Appts.,

v.

FRANCIS W. EATON, COMMISSIONER OF THE FREEDMAN'S SAVINGS AND TRUST COMPANY, ET AL.

(See S. C., "Clark v. Trust Co." 10 Otto, 149–153.)

Inadequacy of price-invalid sale.

1. That the price which property brought at a trustee's sale was grossly inadequate, does not alone constitute a sufficient reason to impeach the genuineness or validity of the sale, unless the inadequacy was such as to shock the conscience, or raise a presumption of fraud or unfairness. 2. That the trustee, at the date of the deed to him and when the sale was made, was the actuary of the Trust Company, whose debt it was given to secure, does not invalidate a sale made under it to the company, which was in conformity to the deed and [No. 58.]

free from fraud.

Argued Nov. 10, 1879.

AF

Decided Dec. 1, 1879.

PPEAL from the Supreme Court of the District of Columbia.

The case is stated by the court. Messrs. Shellabarger & Wilson and J. G. Bigelow, for appellants.

Messrs. Enoch Totten and A. C. Bradley, for appellees.

Mr Justice Harlan delivered the opinion of

the court:

The preliminary question in this case involves the validity and effect of the sale made at public auction by Eaton, or rather by the auctioneer under his directions and as his agent. McGhan and wife, by indenture dated August 15, 1864, and duly acknowledged on 18th November, 1864, conveyed the premises in controversy to Edward Clark, in trust for the sole use and benefit of Mrs. McGhan, for and during her natural life, permitting her to use and occupy the same, and to receive and apply the rents and profits thereof, and in trust also to sell and convey absolutely in fee simple or by way of mortgage, to such person or persons and for such use and purposes as Mrs. McGhan should, in writing, request and direct, her then or any future coverture notwithstanding. The indenture also contained a provision that, upon the death of Mrs. McGhan, the premises, or so much thereof as remained undisposed of, should be conveyed to the husband, his heirs or assigns. By an indenture executed and duly acknowl edged on 20th June, 1870, McGhan and his wife, together with Clark, the trustee, conveyed the property to Daniel Eaton, of the City of Washington, in trust to secure the payment of

NOTE.-Inadequacy of price, to impeach or set aside sale. See note to Erwin v. Parham, 53 U. S. (12

How.), 197.

ply to their sole use and benefit, until default be made in the payment of the note or interest thereon, or any proper charge or expense in and about the property; and, upon payment of the note, interest and costs, to release and reconvey the premises to Clark, the trustee, for Mrs. McGhan; 2. Upon default in any of the said respects, quoting from the deed itself, "To sell the said piece or parcel of ground and premises at public auction upon such terms and conditions, and at such time and place, and after such previous public advertisement, as the said party of the second part or his heirs in the execution of this trust shall deem advantageous and proper, and to convey the same in fee simple to the purchaser or purchasers thereof at his, her or their cost or expense; and of the proceeds of said sale or sales first to pay all proper costs, charges and expenses, and to retain as compensation a commission of five per cent out of the amount of said sale or sales; secondly, to pay whatever may then remain unpaid of said note and the interest thereon, whether the same shall be due or not; and, lastly, to pay the remainder, if any, to the said Louisa McGhan, her heirs or assigns."

On or about April 5, 1872, the note held by the Company being unpaid, and interest to the amount of $1,400 having accrued thereon, Eaton, the trustee, made public advertisement that he would sell the mortgaged property at public auction to the highest bidder, at a designated hour, on April 24, 1872, giving the terms of such proposed sale. The sale was postponed from time to time until July 1, 1872, when it took place, the Freedman's Savings and Trust Company, by one of its officers, becoming the purchaser at the price of $13.000.

We find in the record a writing signed by Eaton, purporting to be an indenture executed July 1, 1872, whereby, in consideration of the sum of $13,000 in hand paid, he conveyed to the purchaser the property so sold at public auction.

It purports to have been "Signed, sealed and delivered in presence of - Brainerd H. Warner." and to have been acknowledged before said Warner as a notary public for the District of Columbia. As printed in the transcript, that writing shows no seal attached to the signature of Eaton, and the certificate of acknowledgment before the notary is without date. That writing was placed upon record on the 4th of February, 1873; but, for the want of a seal to Eaton's signature, complainants claim that it was ineffective for any purpose. Subsequent to that sale, the Freedman's Savings and Trust Company commenced proceedings in ejectment against McGhan and wife and Clark, to recover possession of the property. The defendants in that action failing to appear, judgment by default was entered against them on

In this action, commenced April 5, 1875, by Mrs. McGhan, and by Clark, as trustee in the deed already referred to, it is sought to redeem the property sold by Eaton under the deed of June 20, 1872. To that end the complainants, among other things, prayed that the deed from Eaton to the Freedman's Savings and Trust Company, and the subsequent conveyance under which Bradley and Shepherd (who are alleged not to have been bona fide purchasers) claim, be declared null and void, and the notes given by Bradley to that Company be canceled; that an accounting be had of the rents, issues and profits of the premises, and that the amount thereof be applied on account of the said note of $10,000; and that the lease of the premises may be decreed to inure to the benefit of the complainants.

The court below having dismissed the bill, this appeal has been prosecuted, and the assignments of error present several propositions of law for our consideration. But, in the view we take of the case, it is only necessary to determine the preliminary question already stated, in reference to the validity and effect of the sale at public auction by Eaton, the trustee, on the first of July, 1872.

That sale is attempted to be impeached upon several grounds, viz.:

1. That a proper opportunity was not afforded, to persons desirous to purchase the property, to bid at the sale; that, had there been, the property would have brought, at least, $2.000 more. Upon a careful examination of all the evidence, we find nothing of a positive, substantial character sustaining this position. While there is some little conflict in the evidence as to what occurred upon the occasion of the sale, the overwhelming preponderance of testimony shows that the sale was duly advertised and was fairly and properly conducted.

2. It is next contended that relief should be given because the price which the property brought was grossly inadequate. That fact alone does not constitute a sufficient reason to impeach the genuineness or validity of the sale. Besides, the inadequacy was not such as to shock the conscience, or raise a presumption of fraud or unfairness. Hill, Tr., 152, n.; [Cooper v. Galbraith], 3 Wash. (C. C.), 546; [Hubbard v. Jarrell], 23 Md., 66.

3. The sale is assailed upon the further ground that Eaton, at the date of the deed to him, as well as when the sale was made, was the actuary of the Freedman's Savings and Trust Company, and that, consequently, no sale made by him, under the authority conferred by the deed of June 20, 1870, would cut off the equity of redemption.

Touching this objection, it is sufficient to say that the deed was not made to Eaton in his capacity as an officer of the Company, nor did he act in that capacity when exerting the author ity conferred upon him. The fact that he held official relations to that Company did not inca

the deed of June 22, 1870, or from discharging the duties thereby imposed. It is true that his relations to the Company would make it the duty of the court to scrutinize very closely all that he did in the execution of the trust; but we find nothing in the evidence to justify the belief that he acted otherwise than honestly and faith fully in the discharge of his duty. The evidence does not justify the charge that he bid off the property for the Company.

What we have said leads to the conclusion that the sale of July 1, 1872, was a valid sale, which the purchaser was entitled to have consummated by a conveyance executed and acknowledged in proper form. It is, therefore, of no consequence in this suit to inquire whether the writing executed by Eaton to the Company, in pursuance of the sale made at public auction, was or was not sufficient to pass the title from him.

If he was bound, as we hold that he was, to have executed a sufficient conveyance, the court should not, by granting the relief asked, defeat the sale altogether. An ineffectual attempt, upon the part of Eaton, to consummate the sale, does not authorize a decree setting aside the sale, which, as we have said, was in conformity to the deed, and was free from fraud or imposition, or such inadequacy of price as, upon recognized principles of equity, constitutes ground for relief.

We are all of opinion that the decree must be affirmed, and it is so ordered.

SEFA CAVAZOS, Deceased, ET AL.

(See S. C., 10 Otto, 138-145.)

Lands of Mexican pueblo-private lands for public use-former adjudication-prescription.

*1. By the laws of Mexico in force in 1826, pueblos or towns, when recognized as such by public authority, became entitled for their use and benefit and the use and benefit of their inhabitants, to certain lands embracing the site of such pueblos or towns and adjoining territory to the extent of four square leagues, which were to be measured and assigned to them.

2. By the Constitution of Tamaulipas, one of the States of Mexico, in force in 1826, the property of an individual could not be expropriated; that is, devested of its private character, for an object of common recognized utility, without previous compensation, and the amount of such compensation could only be estimated by arbiters appointed by the State and the owner. If such compensation was not made, though the failure to make it was caused by the owner's refusal to appoint an arbiter, the title was not devested, and the owner and his grantees could recover the same after the Treaty of Guadalupe Hidalgo. change of government over the country by the

3. By the law of Texas, a judgment against a plaintiff, in an action for the possession of real propaction within a year. Held, that, in an action comerty, is conclusive, unless he commence a second menced within the year by the former defendant against the grantees of the former plaintiff for the judgment in the original action from setting up same property, the latter are not precluded by the their claim to the land.

4. Where there was a mixed possession of the and litigation of the parties over it up to the comproperty in controversy, and a continued contest mencement of the action, and an absence of actual *Head notes by Mr. Justice FIELD.