ing questions of fact in cases at law are, by
law, devolved upon the trial court, and there
is no authority in this court to examine the
testimony in any case and from it make a
finding of ultimate facts.

Reed v. Stapp, 3 C. C. A. 244, 9 U. S. App.
34, 52 Fed. 641; Hudson Furniture Co. v.
Harding, 30 L. R. A. 513, 17 C. C. A. 203, 34
U. S. App. 148, 70 Fed. 468-470; Lehnen v.
Dickson, 148 U. S. 71. 37 L. ed. 373, 13 Sup.
Ct. Rep. 481; Martinton v. Fairbanks, 112
U. S. 670, 28 L. ed. 862, 5 Sup. Ct. Rep. 321.
This court cannot review the weight of the
evidence, and can look into it only to see
whether there was error in not directing a
verdict for the plaintiff, on the question of
variance, or because there was no evidence to
sustain the verdict rendered.

Lancaster v. Collins, 115 U. S. 222-225, 29
L. ed. 373, 374, 6 Sup. Ct. Rep. 33.

When a case is tried by a Federal judge
without a jury the sufficiency of the evidence
to sustain the general findings of fact can-
not be considered by the appellate court.
Supreme Lodge K. of P. v. England, 36 C.
C. A. 298, 94 Fed. 369.

[121] *Mr. Justice Peckham opinion of the court:

delivered the

ought not to maintain his action "because it says that it did not, at any time between the 1st day of December, 1894, and the 1st day of June, 1895, or at any other time, purchase or become the owner of 120 shares of the capital stock of the said First National Bank of Helena, Montana, or any share or shares of the capital stock of said bark, and of this the said defendant puts itself upon the country," etc.

Under these pleadings the plaintiff, of course, had the burden of proving ownership of the stock by the defendant.

The parties waived a trial by jury and entered into the following stipulation:

"It is hereby stipulated and agreed between the parties *herein that trial by jury[123] in this case be waived; that this cause may he submitted to the Honorable Christian C. Kohlsaat, judge of this court, upon the foregoing statement of facts duly signed by the attorneys of the parties respectively, and that for the purpose of such trial the said statements of facts shall be taken as absolutely true, and shall be taken and considered as all the facts concerning the transactions therein referred to, subject to any and all objections which might properly be urged to the competency or materiality of any part thereof.

Upon the trial before the court without a

between the parties was put in evidence, and such statement contained all the evidence in the case, which was thereupon submitted to the court for its decision. The court made no special findings of facts, but made a general finding of the issues for the defendant, embodied in a judgment which was entered as follows:

The plaintiff in error brings this case here to review a judgment of the United States circuit court of appeals for the seventh cir-jury, the statement of facts as agreed upon cuit (39 C. C. A. 231, 98 Fed. 688) affirming a judgment of the district court of Illinois in favor of the defendant. The plaintiff in error is the receiver of the First Na[122]tional Bank of Helena, *Montana, and brought this action against the defendant to enforce an assessment of 100 per cent ordered by the Comptroller of the Currency on all owners of shares in that bank. In his declaration the plaintiff, after alleging the organization of the bank, his appointment as receiver, and the assessment by the Comptroller, averred that "the Merchants' Loan & Trust Company, a corporation, at some time between the 1st day of December, 1894, and 1st day of June, 1895 (the exact date being to plaintiff unknown), purchased and became the owner of 120 shares of the capital stock of said First National Bank of Helena, Montana, of the par value of $100 each, and continued to be, and was at the time said bank suspended and ceased to do business, the real owner of the same; but, in order to evade the responsibility imposed by law upon the shareholders in said bank, caused said shares to be placed on the books

of said bank in the name of P. C. Peterson, one of its employees, in whose name said shares appeared on the said books at the time of said failure. And the plaintiff avers that the said Peterson was at the time said stock was issued to him as aforesaid, and at the time of the failure of said bank, a person of small means and not responsible financially."

The plaintiff demanded judgment for the sum of $12,000, being $100 on each share of the stock in the bank owned (as alleged) by the defendant.

As one of several defenses to the action. the defendant pleaded that the plaintiff

"Now come the parties by their attorneys, and thereupon a jury is waived by written stipulation. and this cause is submitted to the court for trial, and the court. having heard the evidence and arguments of counsel, and being now fully advised, finds the issues for the defendants, to which finding the plaintiff excepts, and thereupon the plaintiff enters his motion for a new trial, which is heard and overruled, to which ruling the plaintiff excepts. It is thereupon considered and adjudged by the court that the defendants recover of the plaintiff their costs in this behalf, to be taxed, and that execution issue therefor, to which judgment the plaintiff then and there excepts."

The statement of facts agreed upon and filed in the court was subsequently allowed as a bill of exceptions. There was no exception taken to any fact contained in this statement, nor in the progress of the trial, nor was there any request to find other spe cial facts. The only exception taken was to the general finding of the court in favor of the defendant. From this agreed statement of facts it appears that on April 15, 1893, the defendant loaned to one Ashby of Helena, Montana, $12,000, and took his note in the usual form payable on August 16, 1893. As collateral security for the payment of the note at maturity, Ashby signed in blank and delivered to the defendant a certificate rep

[124]resenting *150 shares of the capital stock of | held, except as the conditions may have been

changed by the facts hereinbefore stated, but that neither the defendant nor the said Peterson ever took any part in the management of either of said banks, or participated in the administration of their affairs." The "facts hereinbefore stated" consisted, not only of those which have been given above, but also of correspondence between the officers of defendant and the officers of the Helena National Bank and the assignee of the pledgeor Ashby, which is set out in the agreed statement.

the Helena National Bank of Helena, Montana. The note taken for the loan was of the kind usually termed a collateral note, and authorized the sale of the collateral deposited as security therefor upon default in the payment of the note. At the time of the loan Ashby was president of the Helena National Bank. On July 26, 1893, Ashby made a general assignment for the benefit of his creditors, and among the property assigned by him was the certificate for 150 shares of the capital stock of the Helena National Bank. described by the assignor as This statement has been referred to for then held by the Merchants' Loan & Trust the purpose of understanding the materialiCompany in pledge. About the date of the ty of certain facts found or agreed upon, the assignment Ashby resigned the presidency failure to do which prevents our use of the of the Helena National Bank. In the sum-statement in the decision of the case. The mer of 1894 the Ashby note still remained contention of the plaintiff herein is that the unpaid, and the certificate of stock re- substitution of the original stock for that of mained in the possession of the defendant, the First National Bank of Helena was made no transfer thereof being made upon the without the consent of the pledgeor, and books of the bank. Later in the year 1894 amounted to a conversion of the stock, and the parties in interest in Helena proposed made the defendant, when it took the shares to consolidate the Helena National Bank of stock in the consolidated bank, the ownwith the First National Bank of Helena, and er thereof, and rendered it liable to assessthe consent of a sufficient number of share- ment as such owner, notwithstanding the holders in the bank was obtained before the fact that the stock was entered and redefendant was asked to consent to the trans-mained on the books of the bank and in the fer of the shares held by it in pledge, on the same terms upon which the owners of shares in the Helena National Bank had agreed to a consolidation of the two banks, by taking shares in the First National Bank of Hele na in exchange for their shares in the Helena National Bank, at the rate of 80 per cent of new shares in exchange for the old. In response to such request the defendant sent the certificates for the 150 shares in the Helena National Bank to the president of that bank. In exchange therefor certificates for 120 shares of stock in the First National Bank of Helena were sent to the defendant, the shares being entered, at request of defendant, on the books of the bank and in the certificates, in the name of P. C. Peterson, an employee of the defendant. Subsequent ly. the First National Bank of Helena went into the hands of a receiver, who found the 120 shares standing on its books in the name of Peterson. The receiver, after the assessed. 576. 20 Sup. Ct. Rep. 465. ment was made. commenced this action The difficulty we meet, which prevents the against the defendant trust company, alleging that it was the real owner of the stock, [125]and that it stood in the name of Peterson for the purpose of enabling the defendant to evade liability as owner.

certificate issued by the bank, in the name
of Peterson, as owner.

Aside from the question whether the de-
fendant had or had not the right as pledgee
of the stock in the Helena National *Bank to[126]
cause the same to be transferred into shares
of the other bank after a majority of the
stockholders had consented to a consolida-
tion, it would seem that if Ashby, the owner,
had himself consented to the arrangement,
or subsequently ratified it, the substituted
stock would remain under the same terms
and conditions as attached to the original
stock, and it would be simply a pledge to,
and not an ownership of stock by, the de-
fendant; and as the stock never stood in the
name of the defendant, the case would be
governed by that of Pauly v. State Loan &
T. Co. 165 U. S. 606, 41 L. ed. 844, 17 Sup.
Ct. Rep. 465, and the cases there cited, and
Jackson v. Emmons, 176 U. S. 532, 44 L.

decision of the case from resting on the
statement of facts, lies in the omission there-
from of any finding or agreement upon the
question of fact whether the pledgeor had
or had not consented to the change; and in-
stead of any such finding or agreement there
is placed in the statement certain

corre

The note remains unpaid, although two small payments on account have been made by the assignee of the maker since the as-spondence from which, together with other signment.

facts stated, an inference of consent or perIt is part of the statement agreed upon haps ratification might be drawn, but is not that the original shares of stock were placed found or agreed upon, thus leaving the ultiin defendant's possession simply as a pledge mate fact of consent or nonconsent a matter or collateral security for the payment of the of inference, and an inference of fact, and note made by Ashby, and the certificates not of law; and this is a material fact ariswhich have been substituted for them, as al-ing upon the statement as agreed upon. ready mentioned, "have ever since been and now are in the possession and control of the defendant, and are held by it in the same way and for the same purpose as the certificates for 150 shares of the capital stock of the Helena National Bank were originally

Neither is there any finding upon the question of the consent of the assignee of the pledgeor to the substitution of the stock, or upon the question of ratification by him. There are facts from which the consent or ratification might be inferred, or the con

Here, although there is a general finding in favor of the defendant, yet there is a statement of facts which contains certain ultimate facts, together with certain other facts evidential in their nature from which an important and ultimate fact might be inferred, but in regard to which there is no agreement or finding whatever. In such case it would not be proper to regard the agreed statement as a sufficient finding of ultimate facts within the statute.

trary, but there is no finding of any ultimate, duced at the trial presented no question of fact regarding the matter. law which the court could review. In that The result of the decisions under the stat-case there was no agreed statement of facts. utes providing for a waiver of trial by jury, and the proceedings on a trial by the court (Rev. Stat. §§ 649, 700) is that when there are special findings they must be findings of what are termed ultimate facts, and not the evidence from which such facts might be but are not found. If, therefore, an agreed statement contains certain facts of that nature, and in addition thereto and as part of such statement there are other facts of an evidential character only, from which a [127] material ultimate fact might be inferred, but which is not agreed upon or found, we cannot find it, and we cannot decide the case on the ultimate facts agreed upon without reference to such other facts. In such case we must be limited to the general finding by the court. We are so limited because the agreed statement is not a compliance with

the statute.

As to what is necessary in special findings or in an agreed statement of facts, the authorities are decisive. It is held that upon a trial by the court, if special findings are made, they must be not a mere report of the evidence, but a finding of those ultimate facts on which the law must determine the rights of the parties; and if the finding of facts be general, only such rulings of the court in the progress of the trial can be reviewed as are presented by a bill of exceptions; and in such case the bill cannot be used to bring up the whole testimony for review, any more than in a trial by jury. Norris v. Jackson, 9 Wall. 125, 19 L. ed.

608.

In Raimond v. Terrebonne Parish, 132 U. S. 192, 33 L. ed. 309, 10 Sup. Ct. Rep. 57, it was said that the agreed statement of facts by the parties, or a finding of facts by the circuit court, must state the ultimate facts of the case, presenting questions of law only, and not be a recital of evidence or of circumstances which may tend to prove the ultimate facts, or from which they may be inferred.

In Glenn v. Fant, 134 U. S. 398, 33 L. ed. 969, 10 Sup. Ct. Rep. 583, there was a stipulation that the case should be heard upon an agreed statement of facts annexed, with leave to refer to exhibits filed therewith. It was held that the stipulation could not be regarded as taking the place of a special verdict or of a special finding of facts, and that the court had no jurisdiction to determine the question of law arising thereon.

It is true there was no bill of exceptions in that case, but the bill in this case presents no exception taken during the progress of the trial, and only contains an exception to the conclusion of the trial court in ordering judgment upon the issues in favor of the defendant.

In this case the finding is general, and, strictly construing the statute, the only questions which would be reviewable would Lehnen v. Dickson, 148 U. S. 71, 37 L. ed. be those questions which arose during the 373, 13 Sup. Ct. Rep. 481, decided that any progress of the trial, and which were pre- mere recital of the testimony, whether in the sented by bill of exceptions. It has, how- opinion of the court or in a bill of excepever, been held that where there was an tions, could not be deemed a special finding agreed statement of facts submitted to the of facts within the scope of the statute; and trial court and upon which its judgment was if there were a general finding and no agreed founded, such agreed statement would be statement of facts, the court must accept taken as an equivalent of a special finding that finding as conclusive, and limit its inof facts. Wayne County Supers. v. Kenni-quiry to the sufficiency of the complaint and cott, 103 U. S. 554, 26 L. ed. 486. But as such equivalent, there must, of course, be a finding or an agreement upon all ultimate facts, and the statement must not merely present evidence from which such facts or any of them may be inferred.

An exception to a general finding of the court on a trial without a jury brings up no question for review. The finding is conclusive, and there must be exceptions taken to the rulings of the court during the trial in order to permit a review thereof. Mercan tile Mut. Ins. Co. v. Folsom, 18 Wall. 237, 21 L. ed. 827.

In Martinton v. Fairbanks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. Ct. Rep. 321, which was a trial before the judge without the intervention of a jury, and where there was only a general finding of facts and a judgment for the plaintiff below, the court decided that [128] an exception to the general finding of the court for the plaintiff upon the evidence ad

to the rulings, if any be preserved on questions of law arising during the trial. The court, in the opinion written by Mr. Justice Brewer, said:

*"But the burden of the statute is not[129] thrown off simply because the witnesses do not contradict each other, and there is no conflict in the testimony. It may be an easy thing in one case for this court, when the testimony consists simply of deeds, mortgages, or other written instruments, to make a satisfactory finding of the facts; and in another it may be difficult when the testimony is largely in parol and the witnesses directly contradict each other. But the rule of the statute is of universal application. It is not relaxed in one case because of the ease in determining the facts, or rigorously enforced in another because of the difliculty in such determination. The duty of finding the facts is placed upon the trial court. We have no authority to examine

See same case below, 155 Mo. 66, 56 S. of the court:

court of the state remanded that case to the inferior court, with an order to enter a specified judgment, nothing being left to the judicial discretion of the court below. A like ruling was made in Atherton v. Fowler, 91 U. S. 143, 23 L. ed. 265, and Tippecanoe County Comrs. v. Lucas, 93 U. S. 108, 23 L. ed. 822.

| lap, 5 How. 51, 12 L. ed. 46; Tracy v. Hol-
combe, 24 How. 426, 16 L. ed. 742; Moore
v. Robbins, lo Wall. 588, 21 L. ed. 758; St.
Clair County v. Lovingston, 18 Wall. 628,
21 L. ed. 813; Parcels v. Johnson, 20 Wall.
653, 22 L. ed. 410; Baker v. White, 92 U. S.
176, 23 L. ed. 430; Bostwick v. Brinkerhoff,
106 U. S. 3, 27 L. ed. 73, 1 Sup. Ct. Rep.
15; Johnson v. Keith, 117 U. S. 199, 29 L.
ed. 888, 6 Sup. Ct. Rep. 669.
Dismissed.

Err.,

บ.

CENTRAL NATIONAL BANK.

While the judgment may dispose of the case as presented, it is impossible to anticipate its ultimate disposition. It may be voluntarily discontinued, or it may happen that the defeated party may amend his pleading by supplying some discovered de- SEWARD A. HASELTINE et al., Plffs. in fect, and go to trial upon new evidence. To determine whether, in a particular case, this may or may not be done, might involve an examination, not only of the record, but even of the evidence in the court of original jurisdiction, and lead to inquiries with regard to the actual final disposition of the case by the supreme court, which it might be difficult to answer. We have, therefore, always made the face of the judgment the test of its finality, and refused to inquire whether, in case of a new trial, the defeated party would stand in a position to make a better case. The plaintiffs in the case under consideration could have secured an immediate review by this court, if the court as a part of its judgment of reversal had ordered the circuit court to dismiss their petition, when, under Mower v. Fletcher, they might have sued out a writ of error at once.

(See S. C. Reporter's ed. 132-137.) National banks—usurious interest-set-off. Usurious interest paid in cash upon renewals of a note given to a national bank, and of all other notes of which it was a consolidation, cannot be set off in an action upon the note, as the remedy provided by U. S. Rev. Stat. § 5198, where such usurious interest has been actually paid,-viz., a recovery in an action in the nature of an action of debt, of twice the amount of the interest thus paid,-is exclusive.

[No. 63.]

McComb v. Knox County Comrs. 91 U. S. Submitted October 29, 1901. Decided De

1, 23 L. ed. 185, is a case in point. That was a writ of error to the court of common

pleas of the state of Ohio. The case had been taken to the supreme court of the state, where the judgment of the common pleas was reversed for error in sustaining a demurrer to the replies, and overruling that to the answer. Upon suggestion by defendant that he might ask leave to amend his answer, the case was remanded "for further [132] proceedings according to law." Upon the mandate being filed, defendant did not ask leave to amend his answer, but elected to rely upon his defense already made. There upon the court gave judgment against him, and he sued out a writ of error from this court. We held that the judgment of the supreme court, being one of reversal only, was not final: that so far from putting an end to the litigation it purposely left it open; that the law of the case upon the pleadings as they stood was settled, but ample power was left in the common pleas to permit the parties to make a new case by amendment; that the final judgment was that of the common pleas; that "it may have been the necessary result of the decision of the question presented for its determination; but it is none the less, on that account, the act of the common pleas," and was, when rendered, open to review by the supreme court. The writ was dismissed. A similar case is that of Great Western Teleg. Co. v. Burnham, 162 U. S. 339, 40 L. ed. 991, 16 Sup. Ct. Rep. 850.

This writ of error is therefore dismissed upon the authority of Brown v. Union Bank, 4 How. 465, 11 L. ed. 1058; Pepper v. Dun

cember 2, 1901.

State of Missouri to review a judgment 'N ERROR to the Supreme Court of the affirming a judgment of the Circuit Court of Greene County in favor of plaintiff in an action on a promissory note. Affirmed. See same case below, 155 Mo. 58, 55 S. W. 1015.

Statement by Mr. Justice Brown:

*This was an action instituted in the cir-[133] cuit court of Greene county, Missouri, by the Central National Bank, to recover of the defendants the amount of a promissory note for $2,240, executed June 15, 1896, by two of the defendants as principals and two others as sureties.

The answer was a general denial and a special defense of usury in the original notes, and partial payments, as set up in the several paragraphs of the answer.

The case was referred to a referee, who reported the note sued upon to be a renewal note, and a consolidation of five original notes, the first of which was for $800, given July 27, 1891; the second for $100, of the same date; the third for $500, dated January 24, 1892, and credited by $100 payment thereon; the fourth for $340, dated January 16, 1893, and the fifth and last for $600, dated May 29, 1893.

The referee further found that the defendants had received on this note $2,240 (or rather out of the notes constituting that

NOTE.-On usury by national banks-see note to Farmers' & M. Nat. Bank v. Dearing, 23 L. ed. U. S. 196.