dence of its acceptance by the court. The case of Dornick v. Reichenback, 10 S. & R., 90, is not an authority against this position; for in Pennsylvania the practice is, as appears in that case, not to take verdicts in writing, but to receive them "from the lips of the foreman, and record them in the usual way." In Georgia, however, they are delivered in writing, and kept with the files. In this way the evidence of what the verdict actually was can be preserved without an entry on the minutes.

We think, therefore, that, upon the case as it is presented to us, the court erred in deciding that the lien of the mortgage to the complainants was superior to that of the judgment of Gunn. In our opinion the judgment was valid, and a lien upon the property from the time of its rendition at the November Term, 1866.

The Circuit Court did not pass upon the other branch of the case; and, as the facts appearing in the record are not sufficient to enable us to decree affirmative relief in this particular,

The decree of the Circuit Court is reversed and the cause remanded, with instructions to proceed in accordance with this opinion, as equity and justice may seem to require.

tion less than the whole, such sums of money as would suffice to pay all the debts and liabilities of the said National Banking Association, with the intent and purpose to compel this defendant, and others of said shareholders who may be solvent, to contribute the entire sum necessary to pay the debts and liabilities of the said National Banking Association, without any contribution from those who are insolvent." It is a sufficient objection to this plea that the Comptroller has ordered that each stockholder shall pay to the receiver the par of his stock. This order cannot be controverted in a suit against the stockholder. It is conclusive upon him, and makes it his duty to pay. Kennedy v. Gibson, 8 Wall., 498, 19 L. ed., 476. What may be done or intended with respect to other stockholders is immaterial in his case.

The plea is also, manifestly, bad for vagueness and uncertainty.

Third. That the Comptroller has decided to pay a large amount of claims against the Bank for which the Bank is not responsible, and that, aside from these claims, there are means enough already in his hands to meet the liabilities of the Bank.

The same objection lies to this plea as to the preceding one, and the same authority applies. If the receiver intends to violate or shall violate his duty in discharging the trust confided to him, the remedy must be sought in another

V.

COUNT GOFFREDO GALLI.

(See S. C., Reporter's ed., 680, 681.)

Insolvent national bank—liability of stockholders-decision of Comptroller.

1. Where the Comptroller of the Currency has ordered that each stockholder of an insolvent na

tional bank shall pay to its receiver the par of his stock, this order cannot be controverted in a suit against the stockholder. It is conclusive upon him.

2. That the Comptroller has decided to pay a large amount of claims against the bank for which the bank is not responsible, and that there are means enough already in his hands to meet the liabilities of the bank, is not a good defense in such suit.

[No. 15 Orig.]

Submitted Apr. 23, 1877. Decided May 7, 1877.

This case is fully stated by the court. See this case, ante, 168.

Messrs. Charles Case and Rouse & Grant, for plaintiff.

Messrs. J. M. Carlisle and J. D. McPherson, for defendant.

Mr. Justice Swayne delivered the opinion of the court:

Since the opinion of the court was delivered in this case at the present Term lante, 168], the defendant obtained leave to plead further, and has filed three pleas. They are:

First. Nil debet, upon which the plaintiff has taken issue.

this action.

Both demurrers are sustained.

The parties have filed a written stipulation, submitting the issues raised upon the first plea to the court and waiving the intervention of a jury.

With respect to this issue, we find the proofs in the record amply sufficient to sustain the plaintiff's case.

Judgment must, therefore, be rendered against the defendant for the par of his stock, with interest, as claimed in the declaration, and costs.

LUTHER H. PIKE et al., Appts.,

V.

JOHN WASSELL et al.

(See S. C., Reporter's ed., 711-715.)

Confiscation Act-seizure-attachment-taxesheirs of owner of condemhed property.

1. Under the Confiscation Act, a seizure of the property was necessary, to give the court jurisdiction for its condemnation.

2. Where property was liable to attachment, a subsequent condemnation, without a previous seizure, did not devest the attaching creditors of any right acquired by their proceedings.

3. Tenants for life are bound to pay the taxes upon the property during the continuance of their estate.

whose estate in lands has been condemned and sold 4. The heirs, apparent or presumptive, of one under the Confiscation Act, may do whatever is necessary to protect it from forfeiture or incum[No. 216.]

brance.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

The bill in this case was filed in the court below by the appellants, to compel the payment of taxes upon certain lands by the appellees in possession. A decree having been entered dismissing the bill, the complainants appealed to this court.

The case is fully stated by the court. Messrs. A. Pike, R. W. Johnson and Luther H. Pike, for himself and of counsel for appellants:

Can the children of B, whose property has been confiscated, he living, maintain a suit in equity to compel payment of the taxes, and to have their fee in remainder recognized and protected?

It is settled and admits of no further question, that the statute has created the title in them, and that at their father's death they will take the fee in remainder. They have, therefore, a vested estate.

Wallach v. Van Riswick, 92 U. S., 202, 23 L. ed., 473.

Wassell being the owner of the property for the life of the father of the appellants, and they having a vested remainder by the statute, he was and is bound to pay and keep down the taxes. He cannot let the taxes go unpaid, and the property be sold for them in order to have it bought in for himself, and so by a trick and unconscientiously destroy their vested interest; and as he is bound to pay the taxes, a court of equity has jurisdiction to compel him to do so, and if necessary to decree a sale of his interest. Elliott v. Lamon, 1 McAr., 647; Cairns v. Chabert, 3 Edw. Ch., 312.

It may be laid down as a duty uniformly incumbent upon a tenant for life, to pay all taxes assessed upon the land during his life. Of course the rule is the same if he is tenant per autre vie.

Varney v. Stevens, 22 Me.. 331; Prettyman v. Walston, 34 Ill., 192.

When a person is apprehensive of being subjected to a future inconvenience, probable or even possible to happen, or to be occasioned by the neglect, inadvertence or culpability of another; or when any property is bequeathed to one after the death of another, in existence, and which the former is desirous of having secured safely for his use against the effects of any acciIdent which may happen to it previous to the accruing of his possession; in either of these cases a bill quia timet may be exhibited, which in the one instance will quiet the party's apprehensions of a future inconvenience by removing the causes which may lead to it, and in the other will secure, for the use of the party, the property, by compelling the party in the present possession of it to guaranty the same by proper security against any subsequent disposition or willful destruction.

1 Madd. Ch. Pr., 178; Willard, Eq. Jur., 303, 328; Bracken v. Bentley, 1 Ch., 110; 1 Eq., Cas. Abr., 78, pl. 1.

It is contended on the part of Wassell and his co-appellees, that Solus Deus potest facere hæredem, non homo, and that Nemo est hæres viventis; and His Honor, the Circuit Judge, decided the case on the latter maxim.

Such of these children as survived their father and the heirs of those who do not, will take the

property, because they will be his heirs; but they will not inherit it from him-will not take it by descent. They have now a present estate by purchase in it, a present vested interest statuti virtute, by force of the statute, either a vested remainder or as cestuis que use, the United States being seized to their use, as if by a covenant to stand seized to uses.

The simplest way of viewing it is, that the forfeiture operated as a conveyance, and as a conveyance by Albert Pike to the United States for his life, with remainder at his death to his children or heirs.

Harper, J., in Lord Lovell's case (Nichols v. Nichols), Plowd., 487; Brown v. Waite, 2 Mod., 133; Coke, Inst., I., 504, a; The Queen v. Hussey, Cro. Eliz., 519; Sheffield v. Ratcliffe, Hob., 334, a; Walsingham's case, Plowd., 552-561; Burgess v. Wheate, Eden, 177.

Consequently the maxim Nemo est hæres viventis has no sort of application to this case. "It cannot be supposed that his relatives, to whom the King has made a gift of his confiscated lands, have succeeded to his lands. They hold them then, by the title of gift from the King, which title makes them acquests. For these reasons, the jurisprudence decides them to be acquests."

Pothier, traite des. propres, sec. 1, art. 3, sec. 4, Fearne, Rem., 78; 2 Saund., 369, a.

Mr. William M. Randolph, for appellees: Counsel of the plaintiffs relied upon the case of Wallach v. Van Riswick, 92 U. S., 202, 23 L. ed., 473, as supporting the position that upon the confiscation of the estate of Albert Pike for his life in the lots, remainder passed to the plaintiff, relieved of his debts.

The case certainly decides nothing of the kind, and there is no expression in the opinion that can be fairly understood as favoring such an idea.

In Ramsden v. McDonald, 1 Wils., 217; same cases, Ramsay v. McDonald, 1 W. Bl., 30, the defendant was attainted of treason. It was held that though attainted, McDonald was still chargeable at the civil suit of the plaintiff.

Ramsay v. McDonald, in 2 Petersd. Abr. of Com. L., 491, it is said: "The law has long been settled, that an attainted party is liable in a civil suit; but by the rules of the court he ought not to be charged without leave of the court, or of the judge at his chambers."

In Foster's Report, 61-63, is a report of McDonald's case.

Co. Ent., 246, a, b, 248; Cro. Eliz., 516; 2 And., 38: Moo., 753; 3 Inst., 215.

In Marshall v. Lovelass, Cam. & N. Rep. of Cases by the Court of Conference (N. C. a, 217, 291), it was held that the confiscation of the property of a trustee of the legal title in land. did not affect the equitable right of the cestui que trust therein.

In Beech v. Woodhull, Pet. C. C., 2, the court held that the Act of New Jersey, of 1778, relative to the sale of estates of persons attainted of treason, did not authorize the sale of forfeited estates free from incumbrances, and that a lien on land sold under the law continued, notwithstanding the sale.

In Higginson v. Mein, 4 Cranch, 415, the court held, that the Act of the State of Georgia, confiscating the land of the mortgagor, did not destroy the estate of a mortgagee in the land;

In Mongin v. Baker, 1 Bay, (S. C.), 73, the court held that it would never give so harsh a construction to the Confiscation Act as to deprive a person of a common law right and, therefore, that the widow of a person, placed on the confiscation list, is entitled to her dower. Wells v. Martin, 2 Bay, 20.

Palmer v. Horton, 1 Johns. Cas., 27, are to the same effect. And see, Hogle v. Stewart, 8 Johns., 104.

In Claims of Marcuard, 20 Wall., 114, 22 L. ed., 327, the court decided that the liens of third parties, of property confiscated and sold under the Act of Congress of July 17, 1862, were in no way disturbed by the proceedings, as it was only the interest of the defendant, whatever that was, that could be condemned and sold.

In Bare v. Rhine, 2 Yeates (Pa.), 286, it was held that the creditor's right to follow the person of his debtor for his debt, was taken away by the provision of the law which provided for the payment of the debtor's debt out of his property which had been confiscated by the Commonwealth.

A seizure of the property was necessary to give the court jurisdiction for its condemnation. Miller v. U. S., 11 Wall., 294, 296, 20 L. ed., 142; Pelham v. Way, 15 Wall., 201, 21 L. ed., 56; Brown v. Kennedy, 15 Wall., 597, 21 L. ed., 195; Confiscation Cases, 20 Wall., 108, 22 L. ed., 323. The proceedings in behalf of the United States, were commenced by the seizure, and the decree of condemnation and sale, without any doubt, vested in the United States, or the purchaser at the sale, the interest which the person proceeded against had in the property when the seizure was made, free from all intermediate conveyances or incumbrances, whether

And I have found no case intimating that the attainder of a debtor, or the confiscation of his property as that of a public enemy, had the effect of discharging him personally or his property, whatever that property consisted of, from the payment of his debts.

I think I may safely assume that the court would not put a construction on the statute and Joint Resolution, depriving the creditors of the person whose property is confiscated, of the means of collecting their debts out of the portion of his property not in fact confiscated or liable to confiscation, unless such a construction is rendered absolutely necessary by the language used, or the policy or purposes of the law.

That the general creditors have a right of equity to have all the property of their debtor devoted to the payment of his debts, is a proposition almost universally admitted.

He cannot give it away until he pays his debts. He cannot sell it, even if his object is to defeat the payment of his debts. He cannot resort to any device whereby he has the use or benefit of his property, while his creditors go unpaid. He cannot dispose of his property by will; nor will the law allow it to descend or be distributed to those designated as entitled to it, while he remains indebted.

If the Act of Congress was the law of the States and had the effect of transfer without consideration from Albert Pike to them, his property, which, before the transfer, was subject to the payment of his existing debts free from any liability for those debts, the court would have no difficulty in holding it unconstitutional.

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

In Wallach v. Van Riswick, 92 U. S., 207, 208, 23 L. ed., 475, we decided that after a seizure and an adjudicated condemnation and sale, under the Confiscation Act of July 17,

the action of his creditors against him. Whatever interest he had in the property had been seized, as *forfeited to the United States, [713 and placed, pending the suit, beyond his reach, or that of his creditors. All subsequently acquired rights were subject to the prior claim of the United States, if perfected by a decree of condemnation.

In this case, it appears that the United States seized lot 10, nine feet off the east side of lot 9, and two and one half feet off the west side of lot 11, in block 1, west of the Quawpaw line, and the undivided half of the west half of lots 1, 2, and 3, in block 81, February 16; and on the next day filed their libel of information against this property in the District Court. A warrant of arrest and monition was issued on the next day, and duly served. The lots thus proceeded against were not levied upon, under the attachment issued out of the Pulaski Circuit Court until March 9. Consequently, as to this property the attachment was defeated by the decree of condemnation, and the defendants acquired no title through the proceedings in the state court. All the interest they have in it comes through the confiscation sale, and terminates upon the death of Albert Pike, to whom it belonged when seized.

But as to the remainder of the property, there never was any seizure by the United States; and the amendment to the libel, upon which alone the decree of condemnation rests, was made long after the levy of the attachments. When levied upon, therefore, the property was open to attachment; and the subsequent condemnation, without a previous seizure, did not devest the attaching creditors of any rights acquired by their proceedings. As to them, the court had no jurisdiction, because it had never taken the property, and had never issued its warrant of arrest or monition. The affirmance of the decree under the writ of error to the circuit court, prosecuted by Albert Pike, operated

It follows, therefore, that the interest covered 714] by the attachments *levied upon the part of the property not seized by the United States has never been confiscated, and that the title which Wassell has since acquired under it may be enforced against the heirs of Albert Pike after his death, notwithstanding the confiscation. It is unnecessary to decide what would have been his rights if a seizure had actually been made by the United States after the attachments. Our conclusion, then, is, that as to the property actually seized by the United States and condemned by the decree, the defendants hold only by virtue of the confiscation sale, but that as to so much as was not actually included in the seizure the defendant, Wassell, did acquire, by the proceedings in the state court, all the title of Albert Pike at the time of the levy of the attachments.

It only remains to inquire whether the children of Albert Pike stand in such a relation to the property confiscated, and not affected by the attachment proceedings, that they may maintain an action to require the defendants to keep down the taxes during the life of their father. There can be no doubt but the defendants, as tenants for life, are bound in law to pay the taxes upon the property during the continuance of their estate. Varney v. Stevens, 22 Me., 334; Cairns v. Chabert, 3 Edw. Ch., 312. This the defendants do not dispute; but they insist that, until the death of the father, the children have no interest in the property and, therefore, cannot appear to protect the inheritance.

It is true, as a general rule, that so long as the ancestor lives the heirs have no interest in his estate, but the question here is as to the rights which the Confiscation Act has conferred upon the heirs apparent or presumptive of one whose estate in lands has been condemned and sold. In Wallach v. Van Riswick, without undertaking to determine where the fee dwelt during the life estate, we decided that it was withheld from confiscation exclusively for the benefit of the heirs. They, and they alone, could take it at the termination of the life estate. The children of Albert Pike, as his heirs apparent, are also apparently the next in succession to the estate. Either they or their respresentatives must take the title when their father dies. If they do not hold the fee, they are certainly the 715] only persons *now living who represent those for whose benefit the Joint Resolution of Congress was passed. They, at least, appear to have the estate in expectancy. Under these circumstances, as there is no one else to look after the interests of the succession, we think they may properly be permitted to do whatever is necessary to protect it from forfeiture or incumbrance.

The defendants admit that they have determined not to pay the taxes upon the property. The danger of incumbrance by reason of this

and income of the estate as should be necessary to pay off and discharge the amounts then in arrear. We see no reason why similar relief may not be granted in respect to the accruing taxes, in case the tenants fail to perform their duties in that behalf.

But, without undertaking to direct specifically as to the form in which the protection asked shall be secured, we reverse the decree, and remand the cause to the Circuit Court, with instructions to proceed in conformity to this opinion, as law and justice may require.

In Error to the Supreme Court of Appeals of the State of Virginia.

The cases arose in the Circuit Court of the City of Richmond, upon motion of the AttorneyGeneral of Virginia, for fines against the plaintiff in error, because of failure to report to the Auditor of Public Accounts for purposes of taxation. The motions were dismissed by that court; but the Supreme Court of Appeals reversed the judgments of dismissal and entered judgments against the defendant, whereupon the said defendant sued out these writs of error; four causes between same parties.

The case is fully stated by the court.

Messrs. William H. Robertson, Jas. H. Storrs and W. M. Evarts for plaintiff in error. Mr. R. T. Daniels, for defendant in error: Every presumption will be made against the State's relinquishment of the power of taxation. Tomlinson v. Branch, 15 Wall., 460, 21 L. ed., 189.

Mr. Justice Strong delivered the opinion of the court:

Each of these cases presents the same ques