The record of this case shows that, while Bunn's preemption claim comes directly within the provision of both statutes, they were utterly disregarded in the decision of the Secretary of the Interior, on which alone his case has any foundation. sale, in ignorance of the provision of the statute which made such attempt ineffectual. At all events, we are entirely satisfied that the lands in controversy were subject to sale at public auction at the time Moore and Mitchell bid for and bought them; that the sale so made was by law a valid one, vesting in them the equitable title, with right to receive the patents; and that the subsequent proceedings of Bunn to enter the land as a preemptor were unlawful and void. It was the duty of the court in Illinois, sitting as a court of equity, to have declared that the mortgage made by Bunn, so far as these lands are concerned, created no lien on them, because he had no right, legal or equitable, to them. The decree of the Supreme Court of that State is, therefore, reversed, and the cause remanded to that court for further proceedings in accordance with this opinion. UNITED STATES, Piff., V. AARON VAN AUKEN. (See S. C., Reporter's ed., 366-369.) We have no evidence in this record at what time the President's Proclamation was issued, or when the sales under it began, at which Mitchell purchased. These Proclamations are not published in the statutes as public laws, and this 538] one is not mentioned in the record. But we know that the public lands are never offered at public auction until after a proclamation fixing the day when and the place where the sales begin. The record shows that both Moore and Mitchell bought and paid for the respective forty acre pieces now in contest, at public auction; that they were struck off to them a few cents in price above the minimum of $2.50, below which these alternate sections could not be sold, and that this was on the 15th day of November, 1855. These public sales were going on then on that day, and how much longer is not known, but it might have been a week, or two weeks, as these sales often continue open longer than that. Bunn states in his application, made three months after this, that his settlement began on the 8th of November, 1855. It is not apparent Issuing from this record that he ever gave the notice of his intention to preempt the land, by filing what is called a declaration of that intention in the Land-Office. There is a copy of such a declaration in the record accompanying the affidavit of settlement, cultivation and qualification required of a preemptor, which last paper was made and sworn to February 20, 1856, when he proved up his claim, and paid for and received his Argued May 1, 1878. Decided May 13, 1878. certificate. There is nothing to show when the declaration of intention was filed in the office. Waiving this, however, which is a little obscure in the record, it is very clear that Bunn "failed to make proof of payment, and failed to file the affidavit of settlement required, before the commencement of the sale" at which Mitchell bought. The statute declares that none of the provisions of the Act shall be available to any person who fails to do this. The affidavit and payment of Bunn were made three months after the land sales had commenced, and after these lands had been sold. The section also declares that the Act shall not delay the sale of any public land beyond the time which has been or may be appointed by the Proclamation of the President. To refuse Mitchell's bid on account of any supposed settlement, even if it had been brought to the attention of the officers, would have been to delay the sale beyond the time appointed, and would, therefore, have been in violation of the very statute under which Bunn asserts his right. 539] *Whatever Bunn may have done on the 8th of November, and up to the 15th of that month, in the way of occupation, settlement, improvement, and even notice, could not withdraw the land from sale at public auction, unless he had also paid or offered to pay the price before the sales commenced. It seems quite probable that such attempt at settlement as he did make was made while the land sales were going on, or a few days before they began, with the purpose of preventing the notes to pass as money-violation of statute-demurrer. circulate any obligation for a less sum than one dol- 1. A U. S. statute which makes it an offense to On a certificate of division in opinion between the Judges of the Circuit Court of the United States for the Western District of Michigan. The case is stated by the court. and Messrs. Charles Devens, Atty-Gen., Edwin B. Smith, Asst. Atty-Gen., for the plaintiff. Mr. Geo. W. Lawton, for defendant. *Mr. Justice Swayne delivered the [367 opinion of the court: The Act of Congress of July 17, 1862, sec. 2, 12 Stat. at L., 592; R. S., 711, sec. 3583, declares that "No private corporation, banking association, firm or individual shall make, issue, circulate or pay out any note, check, memorandum, token or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of lawful money of the United States," and denounces as a penalty for the offense, fine or imprisonment, or both. Van Auken was indicted under this Act for circulating the "obligations" of the Bangor Fur nace Company, a corporation created by and under the laws of the State of Michigan, which obligations are alleged to be in hæc verba: "Bangor, Mich., August 15, 1874. The Bangor Furnace Company will pay the bearer, on demand, fifty cents, in goods, at their store, in Bangor, Mich. (Signed) A. B. Hough, Pres. Chas. D. Rhoder, Treas." "Each of which said obligations was for a less | sum than one dollar, and was intended by the said Aaron Van Auken to circulate as money, and to be received in lieu of lawful money of the United States, contrary," etc. Van Auken demurred to the indictment. The opinions of the Judges of the Circuit Court were divided and opposed upon two questions, which were thereupon certified to this court for final determination: 1. Whether the obligation set forth in the indictment is within any valid statute of the United States. States. Here the note is for "goods," to be paid at the store of the Furnace Company. It is not payable in money, but in goods, and in goods only. No money could be demanded upon it. It is not solvable in that medium. Watson v. McNairy, 1 Bibb, 356. The sum of [369 "fifty cents" is named, but merely as the limit of the value in goods demandable and to be paid upon the presentment of the note. Its mention was for no other purpose, and has no other effect. In the view of the law, the note is as if it called for so many pounds, yards or quarts of a specific article. The limit of value, there being 2. Whether the statute under which the in- none other, gave the holder a range of choice dictment was found is constitutional. The solution of the first question depends upon the construction to be given to the words "for a less sum than one dollar." The object of the provision was obviously to secure, as far as possible, the field for the circulation of stamps as provided in the preceding section, without competition from any quarter. This currency was superseded by the fractional notes authorized to be issued by the Act of March 3, 1863, sec. 4, 12 Stat. at L., 711. Small notes payable in any specific articles, if issued, could 368] *have only a neighborhood circulation, and but a limited one there. It could be but little in the way of the stamps or small notes issued for the purposes of circulating change by the United States. Congress could, therefore, have had little or no motive to interfere with respect to the former. This must be borne in mind in the examination of the question in hand. A dollar is the unit of our currency. It always means money or what is regarded as money. In this case, the statute makes it the standard of measure with reference to the forbidden notes and obligations. If one of them be for a larger "sum than one dollar," it is not within the prohibition, and is not affected by the law. It is a fair, if not a necessary, inference, that the standard of measurement named was intended to be applied only to things ejusdem generis; in other words, to notes for money, and to nothing else. as to the articles to be received in paymentlimited only by the contents of the store. But it is said the indictment avers that the note was intended to circulate as money, and that the demurrer admits the truth of the averment. To this there are two answers: 1. The demurrer admits only what is well pleaded. 2. The offense, as we have shown, consists of two elements: the thing circulated, and the intent of the party circulating it. The demurrer, at most, admits only the latter. As to the former, the judgment of the court is left unfettered, just as if the question before us had been raised by a motion to quash, instead of a demurrer. The first question certified must be answered in the negative. The second one it is, therefore, unnecessary to consider. Dissenting, Mr. Justice Miller. Ex parte WILLIAM SCHOLLENBERGER (See S. C., Reporter's ed., 369-378.) Insurance companies, service on agent-jurisdiction of Federal Courts-mandamus. companies of other States shall not do business in agent therein, designated by it under the Statute. such action. It is certainly inapplicable to anything not measurable by the pecuniary standard. It could not be applied where the measurement was to be, ex gratia, by the pound, the gallon, the yard or any other standard than money. This view is supported by the statutory requirement that the forbidden thing must be "intended to circulate as money, or to be received or used in lieu of the lawful money of the United States." One of the lexical definitions of the word "sum," and the sense in which it is most commonly used, is "money." "Sum. (2) A quantity of money or currency; any amount in- Argued Apr. 30, 1878. Decided May 13, 1878. definitely, as a sum of money, a small sum or a large sum." Webster's Dic. "For a less sum than one dollar" means exactly the same thing as for a less sum of money than one dollar. In the former case there is an ellipsis. In the latter, it is supplied. The implication where the omission occurs is as clear and effectual as the expression where the latter is added. The grammatical construction and the obvious meaning are the same. The statute makes the offense to consist of two ingredients: (1) The token or obligation must be for a less sum than a dollar. (2) It must be intended to circulate as money, or in lieu of the money of the United Petition for a writ of mandamus. Messrs. James H. Heverin and Richard P. Mr. Chief Justice Waite delivered the opinion of the court: This is a petition for a writ of mandamus, requiring the Judges of the Circuit Court of the United States for the Eastern District of Penn * * * sylvania to hear and determine certain suits | found there at the time of the commencement of brought in that court in favor of the relators the suits; and that question, we think, was against a number of insurance companies in- settled in R. R. Co. v. Harris, 12 Wall., 65, 20 corporated by the laws of other States, but do- L. ed., 354. In that case, it appears that, when ing business in that State under a license grant- the suit was commenced the statutes defining ed pursuant to a statute regulating that subject. the jurisdiction of the courts of the District of The circuit court declines to entertain jurisdic- Columbia provided that "No action or suit shall tion of the causes, for the reason, as is alleged, be brought by any original process that the defendant companies were not "at the against any person who shall not be an inhabitcommencement of the respective suits, or at any ant of or found within the District at the time time, inhabitants of or found in the said dis- of serving the writ." 2 Stat. at L., 106, sec. 6. trict." This presents the only question in the Afterwards, in 1867, the law was changed in recase, as it is conceded that the citizenship of the spect to foreign corporations doing business in parties is such as to give the court jurisdiction, the District, and service allowed upon the agent, if the several defendants can be sued in the dis- 14 Stat. at L., 404, sec. 11; but when the suit trict without their consent. was begun and the process served the old law was in force. The Baltimore and Ohio Railroad Company, a Maryland corporation, was authorized by Congress to construct and extend its railroad into the District of Colum- [376 bia. Harris, having been injured while traveling as a passenger upon the railroad outside of the District, sued the company in the Supreme Court of the District, and caused the writ to be served upon the president of the company within the District. The company objected to the jurisdiction of the court, and insisted that it was neither an inhabitant of nor found within the District. In ruling upon this objection, we held that, although the company was a foreign corporation, it was suable in the District, because it had in effect consented to be sued there, in consideration of its being permitted by Congress to exercise therein its corporate powers and privileges. The language of the court, speaking through Mr. Justice Swayne, is: "It (a corporation) cannot migrate, but may exercise its authority in a foreign territory upon such conditions as may be prescribed by the law of the place. One of these conditions may be that it shall consent to be sued there. If it do business there, it will be presumed to have assented, and will be bound accordingly." Then, after an examination of the statute granting the right to extend the road, it was said, p. 84 [359]: “We entertain no doubt that it made the company liable to suit where this suit was brought, in all respects as if it had been an independent corporation of the same locality." This language was cited with approbation, and adopted as a correct exposition of the law by Mr. Justice Field, speaking for the court, in R. Co. v. Whitton, 13 Wall., 270, 20 L. ed., 571. A Statute of Pennsylvania provides that "No insurance company not of this State, nor its agents, shall do business in this State, until he has filed with the insurance commissioner of this State a written stipulation, duly authenticated by the company, agreeing that any legal process affecting the company served on the insurance commissioner, or the party designated by him, or the agent specified by said company to receive service of process for the said company, shall have the same effect as if served personally on the company within this State; and, if such company should cease to maintain such agent in this State, so designated, such process may thereafter be served on the insurance commissioner; but, so long as any liability of the stipulating company to any resident of this State continues, such stipulation cannot be revoked or modified, except that a new one may be substituted, so as to require or dispense with the service at the office of said company within this State, and that such service of process according to this stipulation shall be sufficient personal service on the company. The term 'process' 375] *includes any writ of summons, subpœna, or order whereby any action, suit or proceedings shall be commenced, or which shall be issued in or upon any action, suit or proceedings brought in any court of this Commonwealth having jurisdiction of the subject-matter." L. of Pa., 1873, p. 27, sec. 13. The return to the rule to show cause admits that all the defendant companies were doing business in the State under this statute, and that their designated agents were duly served with process in each of the suits. For the purposes of this hearing, the fact of due service upon the agents must be considered as established. If in reality it is not so, the court below will not be precluded by anything in this proceeding from inquiring into the truth, and acting upon the facts as they are found to exist. The Act of 1875, determining the jurisdiction of the circuit courts, 18 Stat. at L., 470, and which in this particular is substantially a reenactment of the Act of 1789, 1 Stat. at L., 77, sec. 11, provides that "No civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceedings, except," etc. It is unnecessary to inquire whether these several companies were inhabitants of the district. The requirements of the law, for all the purposes of this case, are satisfied if they were Applying these principles to the present case, there cannot be any doubt, as it seems to us, of the jurisdiction of the Circuit Court over these defendant companies. They have, in express terms, in consideration of a grant of the privilege of doing business within the State, agreed that they may be sued there; that is to say, that they may be found there for the purposes of the service of process issued "By any court of the Commonwealth having jurisdiction of the subject-matter." This was a condition imposed by the State upon the privilege granted, and it was not unreasonable. Ins. Co. v. French, 18 How., 404, 15 L. ed., 451. It was insisted in argument that the statute confines the right of suit to the courts of the State; but we cannot so construe it. There is nothing to manifest such an *intention; and, as the object of [377 the Legislature evidently was to relieve the citi zens of Pennsylvania from the necessity of going outside of the State to seek judicial redress upon their contracts made with foreign insurance companies, it is but reasonable to suppose that they were entirely at liberty to select the court in the State having jurisdiction of the subjectmatter, which, in their judgment, was the most convenient or desirable. As the company, if sued in a state court, could remove the cause to the Circuit Court, and thus compel a citizen of the State to submit to that jurisdiction, we see no reason why the citizen may not, if he desires it, bring the company into the same jurisdiction at the outset. While the Circuit Court may not be technically a court of the Commonwealth, it is a court within it; and that, as we think, is all the Legislature intended to provide for. tion in this class of suits. Upon an examination of the reported cases in which this question has been decided, we find that in almost every instance the ruling was made upon the authority of the late Mr. Justice Nelson, in Day v. India Rubber Mfg. Co., 1 Blatchf., 628, and Pomeroy v. R. R. Co., 4 Blatchf., 120. These cases were decided by that learned Justice, the one in 1850 and the other in 1857, long before our decision in R. R. Co. v. Harris [supra], which was not until 1870, and are, as we think, in conflict with the rule we there established. It may also be remarked, that Mr. Justice Nelson, as a member of this court, concurred in that decision. Judge Woods, of the Fifth Circuit, has already decided in favor of the jurisdiction, Knott v. Ins. Co., 2 Woods, 479, and Judge Dillon, of the Eighth Circuit, declined to take it, only because he felt himself foreclosed by the rulings of other judges and especially of Mr. Justice Nelson. Stillwell v. Ins. Co., 4 Cent. L. J., 463. The writ of mandamus is granted. CHARLES L. HAYWARD, Appt., V. THE ELIOT NATIONAL BANK. States cannot by their legislation confer jurisdiction upon the courts of the United States; neither can consent of parties give jurisdiction when the facts do not; but both state legislation and consent of parties may bring about a state of facts which will authorize the courts of the United States to take cognizance of a case. Ex parte McNiel, 13 Wall., 236, 20 L. ed., 624. Thus, if the parties to a suit, both plaintiff and defendant, are in fact citizens of the same State, an agreement upon the record that they are citizens of different States will not give jurisdiction. But if the two agree that one shall move into and become a citizen of another State, in order that jurisdiction may be given, and he Action for pledge-time, when a bar, in equity. actually does so in good faith, the court cannot refuse to entertain the suit. So, as in this case, if the Legislature of a State requires a foreign corporation to consent to be "found" within its territory, for the purpose of the service of process in a suit, as a condition to doing business in the State, and the corporation does so consent, the fact that it is found gives the jurisdiction, notwithstanding the finding was procured by consent. The essential fact is the finding, beyond which the court will not ordinarily look. A corporation cannot change its residence or its citizenship. It can have its legal home only at the place where it is located by or under the authority of its charter; but it may by its agents transact business anywhere, unless pro378] hibited by its charter or excluded by local laws. Under such circumstances, it seems clear that it may, for the purpose of securing business, consent to be "found" away from home, for the purposes of suit as to matters growing out of its transactions. The Act of Congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and it is one which he may waive. If the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented. Here, the defend ant companies have provided that they can be found in a district other than that in which they reside, if a particular mode of proceeding is adopted, and they have been so found. In our opinion, therefore, the Circuit Court has jurisdiction of the causes, and should proceed to hear and decide them. We are aware that the practice in the circuit courts generally has been to decline jurisdic 1. Where securities were deposited with a bank with power of sale to secure a debt owing to it, and notice to the debtor, sold the securities to pay such the bank, after the debt became due and after due debt, the debtor cannot maintain an action against the bank for their redemption and to compel it to re-transfer them to him. 2. Courts of equity often treat a lapse of time, less than that prescribed by the Statute of Limitations, as a presumptive bar. 3. The delay which will defeat a recovery must depend upon the particular circumstances of each case. [No. 273.] Argued Apr. 26, 29, 1878. Decided Mar. 13, 1878. Appeal from the Circuit Court of the United States for the District of Massachusetts. Statement by Mr. Justice Harlan. In the year 1863 Hayward, the appellant, "For the purpose of opening a credit with the Eliot Bank," a Corporation created under the laws of Massachusetts, deposited certain securities with that Bank with power to transfer the same, as well as any bullion, coin or other securities which he might thereafter deposit with the Bank. He expressly waived in a writing then executed "All and every objection to the manner in which said securities may be sold, whether at public or private sale, or at the Board of Brokers, without any demand or notice *whatever." Subsequently, the Bank was [612 converted into a national Banking Association, under the name of the Eliot National Bank; and, in the latter capacity in October, 1866 it loaned to Hayward, first $6,500, and then $20,000, receiving in pledge, as security for the loan 450 shares of stock in the Hecla Mining Company, incorporated under the laws of Mich bonds and commercial paper-see note, 53 L. R. NOTE.-Rights in respect to sale of collateral A., 857. igan, but having an office in the City of Boston. | Hayward a statement of his account, showing The loans were understood at the time by both its claim against him on account of his loans, parties to be merely temporary, to go upon the interest and assessments paid, to be $39,257.16, demand loan account of the Bank and to be and closing with this credit, "Sept. 8, 1868, by promptly paid. In order that the Bank might cash, $39,257.16." have full control of the security, Hayward caused the pledged stock to be transferred to R. B. Conant, to whom, as cashier of the Bank, certificates, absolute in form, were issued for the whole 450 shares. Hayward did not meet the loans as he had agreed, but made provision for the interest up to April 1, 1867. After that date he paid no interest. During the year 1867 various assessments were made by the company upon its stock. Hayward was notified of and requested to meet them, but he failed to do so; and the Bank, in order to save the security, and for its own indemnity, was compelled to pay the assessments amounting in the aggregate to $9,972.15. On the 9th of November, 1867, Hayward executed and delivered to the Bank the following paper: "Boston, Nov. 9th, 1867. I hereby authorize the President and Directors of the Eliot National Bank to sell, at their discretion, 450 shares of stock of the Hecla Mining Company, held as collateral security for loan; proceeds of sale to be applied upon said loan. To the President and Directors of the Eliot This paper was obtained because it was doubtful whether the power of attorney, given in 1863, when the Bank was a state institution, was sufficient to authorize a sale of the stock by the National Bank to pay Hayward's indebtedness to it. After the transfer in October, 1866, the stock was at times greatly depressed in value, the market price ranging from $15 to $70 per share; the latter being the ruling price in August, 1868; but even that price was insufficient to reimburse the Bank for its loan and interest, and for assessments on stock it had paid. The 613] Board of Directors, on the 18th August, 1868, passed an order declaring that unless Hayward paid $5,000 during that week, and a like amount the following week upon his loans secured by the Hecla mining stock as collateral, the President was directed to sell the same forthwith. Of this order Hayward was notified but 'he did not comply with its terms. Thereupon the President of the Bank determined to dispose of the stock, in discharge of the Bank's claim. Three of the directors, for the purpose, as the bank officers say, of preventing loss to the Bank, in which they were stockholders, but for the further reason, doubtless, that they regarded it a safe investment, proposed to the Bank to take the stock at $87 per share, which was above the market price, each director to take 150 shares, and pay one third of Hayward's indebtedness to the Bank. But before the directors would consummate this arrangement, they insisted that Hayward be advised of their proposition. The sale was consummated on the 8th of September, 1868; and on that day each of the directors paid, by assuming absolutely, one third of the Bank's claim against Hayward, and received in consideration thereof a new certificate for 150 shares of stock. In 1871, the Hecla Mining Company and the Calumet Mining Company, also a Michigan corporation, were consolidated under the name of the Calumet and Hecla Mining Company. New stock was issued from time to time; and at the commencement of this action, instead of the 450 shares originally held, the three directors hold in the aggregate 900 shares in the consolidated company. After the transfer of September 8, 1868, they met all assessments upon the stock, and received individually such dividends as were declared thereon. Other facts are stated in the opinion of the court. This action was instituted by Hayward against the Bank, on the 14th March, 1872, for the purpose of obtaining a decree, redeeming the stock and requiring the Bank to transfer to him the 900 shares of the stock of the Calumet and Hecla Mining Company and to pay *over whatever might be due him, upon [614 taking account of the moneys received on account of the stock, and the amounts due the Bank from him. Neither the mining company nor the directors who purchased the stock were made defendants. The bill was dismissed and from that decree this appeal is taken. Messrs. E. F. Hodges and Jonathan F. Barrett, for appellant. Mr. A. A. Ranney, for appellee. Mr. Justice Harlan delivered the opinion of the court: 1. This bill seems to have been prepared upon the supposition that the Bank then held and owned the 900 shares of stock in the Calumet and Hecla Mining Company at the commencement of this action. It is evident, however, that the Bank's connection with the stock ceased September 8, 1868, when it was sold to three of the bank directors. After that date, the purchasers claimed and controlled the stock as their individual property, and their ownership was uniformly recognized both by the Bank and the Mining Company. They paid all assessments laid, and received all dividends declared after September 8, 1868. The evidence shows that the sale to them was absolute and unconditional. the title unquestionably passed to them, and if the appellant is entitled, upon any ground whatever, to a transfer of the stock, such relief can only be given in an action against those who hold it and are recognized by the mining company as its owners. 2. A large portion of the very elaborate argument made in behalf of the appellant was in support of the proposition that the Bank, having received the stock in pledge to secure his indebtedness to it, could not, consistently with settled principles, buy from itself, and consequently could not sell to its directors. If these general principles were at all applicable in a case like this, it would only prove that the Bank, by violating its duty, had become liable to him for the value of the stock. But such liability is not charged, nor is such relief asked in the bill. Immediately after this sale the Bank sent to The specific relief sought is a decree requiring |