property, and the former an action against the person to recover a statutory penalty. Informations in rem against property differ widely from an action against the person to recover a penalty imposed to punish the offender. But they differ even more widely in the course of the trial than in the intrinsic nature of the remedy to be enforced. Instructions of an entirely different character were given in that case; as, for example, the jury were told in effect that suspicious circumstances requiring explanation, if not explained, would supply by presumption what would be sufficient to warrant a verdict of guilty; that silence supplied, in the presumption of law, that full proof which should dispel all reasonable doubt, making the inference to be drawn from silence one of law instead of fact. Palpable as those errors were, it is clear the decision of this court is correct. 272] *Nor is there anything in the case of U. S. v. The Burdett, 9 Pet., 682, that is in conflict with these several propositions. Charges of the kind contained in an information ought to be satisfactorily proved; and it is correct to say that if the scale of evidence hangs in doubt, the verdict should be in favor of the claimant, which is all that was there decided. Jurors in such a case ought to be clearly satisfied that the allegations of the information are true; and when they are so satisfied of the truth of the charge, they may render a verdict for the government, even though the proof falls short of what is required in a criminal case prosecuted by indictment. Ins. Co. v. Johnson, 11 Bush, 593. Judgment affirmed. in territory east of the Mississippi River. At the time of this exaction, the government agent had possession of the cotton. No. 523. Claim for net proceeds now in the Treasury, of thirteen bales of cotton, illegally exacted June 13, 1865, as a bonus upon the importation of fifty-four bales. The exaction took place at New Orleans, and while the fifty-four bales were in possession of the agent. The thirteen bales were sent by the government agent to New York and sold, and the judgment is for their net proceeds, less a set-off allowed, of the internal revenue tax of two cents per pound on the forty-one bales, out of the fiftyfour, which were released to Cerf upon his surrender of the thirteen bales. The tax on fortyone bales was $329.10. Judgment for $1,790.62, net proceeds (now in the Treasury) of thirteen bales, less $329.10, amount of internal revenue tax, on forty-one bales restored. No. 524. Claim for net proceeds, now in the Treasury, of twenty-five bales of cotton, exacted at New Orleans. June 26, 1865, as a bonus upon the importation into New Orleans (under section 8, Act 2d July, 1864, and Treasury Regulation of May 9, 1865), of 101 bales. The cotton came from west of the Mississippi, but the exaction was illegally by virtue of the Presidential Proclamation of June 24, 1865, which removed all restriction upon trade in territory west of the Mississippi. 13 Stat. at L., 769. At the time of the exaction, the 101 bales were all in possession of the agent. The twentyfive bales were sent to New York by the agent and sold, and the judgment is for their net proceeds now in the Treasury. No. 525. Claim for net proceeds, now in the Treasury, of fifteen bales of cotton. illegally exacted in New Orleans, June 27, 1865, by the government agent, as the bonus upon the im 164] *UNITED STATES, Appt., v. NOR- portation into New Orleans of sixty-two bales. TON; Nos. 522, 523 and 526; UNITED STATES, Appt., v. WHITE et al., No. 524: Same, Appt., v. Bonnafon, No. 525; Same, Appt., v. Levy et al., No. 527; Same, Appt., v. Roman et al., No. 528; Same, Appt., v. Yorke, No. 529. (See S. C., Reporter's ed., 164-170.) President's Proclamation. The President's Proclamation of June 13, 1865, removing restrictions upon trade in the States east of the Mississippi River, took effect at the beginning of that day and, therefore, covers all the transactions of that day to which it is applicable. Submitted Jan. 14, 1878. Decided Jan. 28, 1878. Appeals from the Court of Claims. Statements. No. 522. Claim upon implied contract as for money had and received, being the sum illegally exacted, June 13, 1865, from De Bow & Co., by the government agent at New Orleans, as a bonus upon the importation of 125 bales of cotton, under section 8 of July 2, 1864, and Treasury Regulation of May 9, 1865, and paid by him into the United States Treasury. The cotton came from east of the Mississippi, and the exaction was forbidden by the Presidential Proclamation of June 13, 1865, 13 Stat. at L., 763, which removed all restrictions upon trade The findings do not state whence the cotton came. That question could not be of the least consequence, as if the cotton came from east of mation of June 13; and if from the west, then the river, the case is controlled by the Proclaby that of the 24th. In the case of Lapeyre v. U. S., 17 Wall., 191, 21 L. ed., 606, nobody doubted that the Proclamation of June 24 took effect at least on the 27th, the day of its publication in the newspapers. At the time the fifteen bales were exacted, the whole sixty-two bales were in the possession of the agent. The fifteen bales were sent to New York by the agent and sold, and the judgment is for the net proceeds in the Treasury. No. 526. Claim for the net proceeds, now in the Treasury, of twenty-eight bales of cotton illegally exacted in New Orleans, June 27, 1865, by the government agent, as a bonus upon the importation into that city of 113 bales. The whole 113 bales were in the possession of the agent at the time that the surrender of the twenty-eight bales was exacted. No. 527. There are two claims in this case: I. Claim for the net proceeds, covered into the Treasury, of nine bales of cotton, bonus exacted June 13, 1865, at New Orleans, by the government agent, upon the importation into New Orleans of thirty-six bales. The cotton came from east of the Mississippi, and at the time of the exaction, the whole thirtysix bales were in the possession of the agent. The nine bales were sent to New York and sold. A set-off was filed, of the amount of the two cent internal revenue tax. The set-off was allowed, to the extent of the tax upon the twenty-seven bales restored to claimants out of the thirty-six bales, amounting to $214.05. The set-off was disallowed, however, as to the tax on the nine bales which were not restored to claimants, but sent to New York and sold. The net proceeds of the nine bales were $1,305. The set-off allowed in the twenty-seven bales restored, was $214.05. II. The second claim in this case is for the proceeds of three bales, exacted June 27, 1865, as a bonus upon the importation into New Orleans of twelve bales which came from west of the Mississippi and were all in the possession of the agent at the time of the exaction, June 27, 1865. The three bales were sent to New York and sold. A set-off was claimed of two cents a pound on the whole twelve bales, but was only allowed to the amount of the tax upon the nine bales that were released to the claimant. The set-off on the nine bales amounted to $71.98. The net proceeds of the three bales sent to New York and sold were $435. No. 528. Claim for net proceeds for thirtyfive bales of cotton exacted at New Orleans, June 13, 1865, by the government agent as a bonus upon the importation of 142 bales. The cotton came from the east of the Mississippi, and was all in the possession of the agent at the time of the exaction, June 13, 1865. The thirty-five bales were sent to New York by the agent and sold. The net proceeds covered into the Treasury were $4,820.90. The Government filed a set-off of the amount of the internal revenue tax of two cents a pound upon the whole 142 bales, but it was only allowed to the amount of the tax upon the 107 bales that were restored to the claimants and was disallowed as to the remaining thirty-five bales sent to New York and sold by the United States. No. 529. There are two claims in this case: I. Claim for $352.24, money paid June 13, 1865, as a bonus upon the importation into New Orleans of ten bales of cotton from east of the Mississippi. The ten bales of cotton were in possession of the agent at the time of the exaction. Upon the payment of the $352.24, the ten bales were released to claimant, and the agent has paid the money into the Treasury. The United States filed a set-off of the amount of the internal revenue tax on the whole ten bales and on fifteen bales involved in the second claim, twenty-five bales in all, and the set-off was allowed upon the whole ten bales, as they had been all restored to claimant, he having paid the bonus in money. II. The second claim in this case was for the proceeds of four bales of cotton exacted June 26, 1865, as a bonus upon the importation of fifteen bales. The whole fifteen bales came from west of the Mississippi, and were in the possession of the government agent at the time of the exaction, June 26, 1865. The four bales were sent to New York and sold. The net proceeds were $550.96. The Government filed a set-off of the two cent tax upon the whole fifteen bales. The set-off was allowed as to the eleven bales released to claimant, but disallowed as to the four bales which the United States took from him, sent to New York and sold. Both parties to the transaction in these eight cases acted in ignorance of the illegality of the exactions, not knowing of the Proclamations of June 13 and 24. The government agent acted with perfect moral honesty, paying over the money, where he received, and sending the cotton where the bonus was paid in kind to New York, as the treasury regulations directed. No interest has been allowed. Messrs. Charles Devens, Atty-Gen., and Edwin B. Smith, Asst. Atty-Gen., for appellant: The general fact applicable to these cases is, that each was brought to recover money paid or the proceeds of cotton delivered to the special agent of the United States Treasury, at New Orleans, in June, 1865, by parties who allege themselves and the agent to have been alike unaware of the President's Proclamations, dated June 13 and 14, 1865, 13 Stat. at L., 763, 769, removing the restrictions upon trade, except as to certain contraband articles and commercial intercourse in the States lately in rebellion. The chief special distinction which we wish to notice is, that in Nos. 522, 523 U. S. v. Norton, 527 U. S. v. Levy, 528 U. S. v. Roman, and 529 U. S. v. Yorke, the moneys were paid or cotton delivered June 13, 1865. The other three cases are like Lapeyre's case 84 U. S., 191, 21 L. ed., 606, but we do not admit that these five are; because these transac tions occurred on the day the first Proclamation bears date, whereas, Lapeyre's and the others were subsequent to June 24, even if in ignorance of the Proclamation of that date. The claimants assume that the day when these Proclamations became effective was that of their respective dates, without regard to the time of their promulgation, resting upon the opinion per Swayne, J., in Lapeyre v. U. S., supra. It is not proposed to discuss at length a subject twice argued in Lapeyre's case, and so carefully considered by the court; but as both courts divide equally upon it, so nearly as that is possible, we trust it may be reconsidered, and a decision made sustaining the view then and now taken by the Government. It matters not whether the plaintiffs' payments were voluntary or involuntary, they must have been one or the other, and in neither case can they be recovered in the Court of Claims. A voluntary payment cannot be reclaimed in any court. Volenti, non fit, etc. Elliott v. Swartwout, 10 Pet., 137; Cunningham v. Munroe, 15 Gray, 471, and the many cases there cited by Judge Abbott, counsel for the defendants; Elston v. Chicago, 40 Ill., 518, 519; Mayor v. Lefferman, 4 Gill, 436; Fellows v.. Sch. Dist., 39 Me., 561; Benson v. Monroe, 7 Cush., 125. It has been held that the payment of an illegal tax, before any process has issued for its collection is so far voluntary that it cannot be recovered, because the payer is under no compulsion which the law requires as a ground for recovery. Barrett v. Cambridge, 10 Allen, 48, citing 4 Met., 181; Forbes v. Appleton, 5 Cush., 117; Lee v. Templeton, 13 Gray, 476. See, also, Walker v. St. Louis, 15 Mo., 563, and the numerous cases there cited; Christy v. St. Louis, 20 Mo., 143; State v. Powell, 44 Mo., 436; Nickodemus v. E. Saginaw, 25 Mich., 458, 459. If there was any misapprehension which led to these payments, it was a mistake of law. Mayor v Lefferman, 4 Gill, 436. It is invariably held that a payment is not to be regarded as compulsory, unless made to relieve the person or property from an actual and existing duress imposed upon him by the party to whom the money is paid. Valpy v. Manley, 50 Eng. C. L., 602; Lazell v. Miller, 15 Mass., 207: Elston v. Chicago, 40 Ill., 518; Newell v. March, 8 Ired., 441. Both opinions in Lapeyre's case proceed upon the assumption that these Proclainations were the same as statutes in their legal effect. Then ignorance of them is ignorance of law; mistake as to them is mistake of law. They are the law of the land. These suits were instituted in the Court of Claims against the Government. If they can made under the circumstances of this case were voluntary or not, or whether, if voluntary, being made under a mutual mistake of law, can be recovered back, were not considered in the opinions filed, it is clear that the judgment rendered could not have been given, unless they had been decided adversely to the United States The judgment in each of the cases is affirmed. LAUREN A. NOYES, Appt., V. WRIGHT C. HALL. (See S. C., Reporter's ed., 34-39.) there be sustained, it must be because based Possession of land-notice of rights—redemption upon some contract expressed or implied, between the litigants. R. S., sec. 1059; Gibbons v. U. S., 8 Wall., 269, 19 L. ed., 453. from foreclosure. 1. Where one holds a contract for lands and is in the open, visible and exclusive possession of the same, this is constructive notice to creditors and subsequent purchasers of his rights therein. 2. Parties interested in the premises, who were not served with process, are not bound by a decree of foreclosure of a mortgage thereon, and may redeem from a sale thereunder, the same as if no such decree had ever been made. [No. 175.] There was no express contract for the United States to take certain cotton, make sale of it for the owners, and return them the proceeds. No officer of the Government would have the right to make a cotton factory for individuals. Nor was this attempted. If no such contract would have been expressly made, it cannot be implied; for the law will not assume by implication, that Submitted Jan. 23, 1878. Decided Feb. 4, 1878. aught was done that could not be accomplished by express contract; nor when the circumstances repel all implication of a promise in fact. Simpson v. Bowden, 33 Me., 552, top; Whiting v. Sullivan, 7 Mass., 107; Watson v. Stever. 25 Mich., 386. If not voluntary, the payments were, as the petitioner's counsel claim, throughout their argument, involuntary, extorted from the claimants illegally, by the compulsive effect of a wrongful detention of their goods. That is, it was a tort. But of the tortious acts of the agents of the Government, the Court of Claims cannot take cognizance, and these causes must be dismissed for want of jurisdiction. Gibbons v. U. S., 8 Wall., 275, 19 L. ed., 454. True, a plaintiff, as against another individual, can sometimes waive the tort and sue in assumpsit; but not where in waiving the tort, he waives the whole cause of action. It is only when the tort, through the gist of the transaction, arises out of a contract, that the plaintiff has an election. Stoyel v. Westcott, 2 Day, 422; Bulkley v. Storer, 2 Day, 531; also, see, Vasse v. Smith, 6 Cranch, 231 (top), to be briefly noticed below. Messrs. Edward Janin and A. C. Janin, for appellees. Mr. Chief Justice Waite delivered the opinion of the court: In our opinion, these cases are governed by the decision in Lapeyre v. U. S., 17 Wall., 191, 21 L. ed., 606, which, although not concurred in by all the Justices then composing the court, is accepted as conclusive upon the questions involved. Under the ruling in that case, the Proclama tion took effect as of the beginning of June 13, 1865, and, therefore, covers all the transactions of that day to which it is applicable. We do not think this is a case in which fractions of a day should be taken into account. While the questions of whether payments 97 U.S. U. S., Book 24 Appeal from the Circuit Court of the United Mr. Justice Clifford delivered the opinion of the court: Antecedent to the claim of the respondent, the unincumbered fee simple title of the premises was in the father of the complainant. On the 26th of April, 1858, the owner of the tract, consisting of a farm of eighty acres, being indebted to the respondent in the sum of $1,075, mortgaged the farm to him to secure the payment of that sum. Sufficient also appears to show that the fee simple owner of the premises, on the 4th of June, 1859, contracted in writing with the brother of the complainant to convey the same to the other contracting party for the sum of $3,000, payments to be made as therein specified; and that the brother, eight months later, sold out his interest thus acquired to the complainant, the new contract being made by con NOTE.-Who is entitled to redeem from the lien of a mortgage. Generally speaking, not only the mortgagor but any person having an interest in or lien upon the land, provided he comes in privity with the mortHun, 522; Ballard v. Jones, 6 Humph., 455; Gibson gagor, is entitled to redeem. Dings v. Parshall, 7 v. Crehore, 5 Pick., 146; Pearce v. Morris, 5 L. R. Ch., 227; Platt v. Squire, 12 Met., 494; Moore v. Beasom, 44 N. H., 215; Lyon v. Robbins, 45 Conn., 513; Morse v. Smith, 83 Ill., 396. Redemption will be decreed according to the priority of the claimants. Moore v. Beasom, 44 N. H., sent to bear the same date as that previously | were transferred, and it appears that the asgiven to the brother, the complainant giving signee instituted the suit for foreclosure. When his notes in the place of those given by the the foreclosure suit was commenced, the present brother, except for $300, which he paid in cash. complainant was in possession of the premises, Payments, except for that amount, were to be having previously paid $1,000 towards the purmade as in the previous arrangement; and the chase of the same under his contract; and the complainant alleges that, prior to the commence- record shows that he was not notified of the 36] ment of the next year, he entered into commencement or pendency of the suit. the possession of the premises, and that he has continued in the possession of the same from that time to the present. By the terms of the agreement, the premises were to be conveyed to the complainant by a good and sufficient deed; and he alleges that the covenantor and his wife, on the 10th of February, 1864, by deed duly executed and acknowledged, conveyed the same to him; and it appears that the deed, on the 19th of the same month, was duly recorded. Process was served; and the respondent appeared and filed an answer, in which he sets up the mortgage given by the original owner, the foreclosure of the same, the sale of the premises by the master, and his title to the same by virtue of the master's deed to the purchaser from whom he acquired the title to the premises. Proofs were taken, the parties heard, and the court entered a decree in favor of the complain ant. Due appeal was taken by the respondent to this court; and he assigns, among others, the following errors: (1) That the complainant has not made such a case as to warrant a court of equity in granting him relief. (2) That the bill of complaint does not allege any sufficient reason why it was not commenced at an earlier date. (3) That the bill of complaint does not allege that any tender of the amount required to redeem the mortgage was ever made before the commencement of the present suit. (4) That the contract to convey the land to the complainant was subsequent to the execution of the mortgage. Though in the sole possession of the premises, the complainant alleges that he was not served with process; and that no answer having been filed in the case, the bill of complaint was taken as confessed, and that a decree of foreclosure was entered, under which the premises were sold by the master for the sum of $400. *None of these matters are controverted; [37 and it is also alleged that conveyance of the premises in due form was made by the master to the bidder, and that he conveyed the same to the respondent. Since that time, as the complainant alleges, the respondent has commenced a suit against him to recover the possession of the premises. All of these matters are formally set forth in the bill of complaint; and the complainant alleges that the respondent neither claims nor has any other or further interest or title to the premises than that derived by purchase under the decree of foreclosure, and he avers that such title is subject to his right to redeem the premises described in the bill of complaint. Appropriate allegations are also made to show that he is entitled to such relief, upon the ground that he has been at all times since the sale of the premises ready and anxious to redeem the same from the sale and purchase; that he has offered to redeem the premises of the respondent by the payment of the said sum of $400, with interest at the rate of ten per cent. from the date of the sale to the time of such tender of redemption, and that the respondent refused and still refuses to accept such payment and to release the claim and title to the premises by him so acquired; Both of the notes secured by the mortgage wherefore he prays that he may be declared en Warrington, 2 New Mex., 318; Merriam v. Barton, 14 Vt., 501; Purvis v. Brown, 4 Ired. Eq., 413; Boqut v. Coburn, 27 Barb., 230; Zaegel v. Kuster, 51 Wis., 31. The surety on a mortgage note against whom judgment has been rendered in an action to foreclose, has no right to redeem from a purchaser at a foreclosure sale. Miller v. Ayres, 59 Iowa, 424. The purchaser at an execution sale subject to a mortgage, is entitled to redeem (Hammond v. Leavitt, 59 Iowa, 407); so is a junior mortgagee (Lee v. Stone, 5 Gill & J., 1, 23 Am. Dec., 589; Jenkins v. Cont. Ins. Co., 12 How. Pr., 66; Strang v. Allen, 44 Ill., 428; Frink v. Murphy, 21 Cal., 108; Hodgen v. Guttery, 58 Ill., 431; Rogers v. Herron, 92 II., 583; Smith v. Conner, 65 Ala., 371; Frost v. Yonkers Sav. Bk., 70 N. Y., 553; Ellsworth v. Lockwood, 42 N. Y., 89; Hosford v. Johnson, 74 Ind., 479; Duke v. Beeson, 79 Ind., 24; Sager v. Tupper, 35 Mich., 134; Lamb v. Jeffrey, 41 Mich., 719); or a tenant for years (Hamilton v. Dobbs, 19 N. J. Eq., 227; Bacon v. Bowdoin, 2 Met., 591); or a jointress (Howard v. Harris, 1 Vern., 190); or a tenant by the curtesy (Jones v. Meredith, 1 Bunb., 347; Gatewood v. Gatewood, 75 Va., 407); or a tenant in dower (Trenholm v. Wilson, 43 S. C., 173; Eaton v. Simonds. i4 Pick., 98; Denton v. Nanny, 8 Barb., 618; Mills v. Van Voorhies, 10 Abb. Pr., 152; S. C., 20 N. Y., 412; McCabe v. Bellows, 7 Gray, 148; Gibson v. Crehore, 5 Pick., 146; Opdyke v. Bartles, 11 N. J. Eq., 133; Rossiter v. Cossitt, 15 N. H., 38; Henry's Case, 4 Cush., 257); or a judgment creditor (Mildred v. Austin, 8 L. R. Eq., 220; Burton v. Robinson, 9 Baxt.. 364; Dauchy v. Bennett, 7 How. Pr., 375; Belden v. Slade, 26 Hun, 635; Brainard v. Cooper, 10 N. Y., 356; Lauriat v. Stratton, 6 Sawy., 339); or a judgment creditor of an heir of a deceased intestate mortgagor (Willis v. Jelineck, 27 Minn., 18); or one to whom a bona fide transfer of the mortgager's estate is made (Scott v. Henry, 13 Ark., 112: White v. Bond, 16 Mass., 400; Rogers v. Meyers, 68 Ill., 92); or the guardian of infant heir. Pardee v. Van Anken, 3 Barb., 534. Mortgagor who has conveyed by warranty deed, cannot maintain a bill to redeem. Phillips v. Leavitt, 54 Me., 405; Elder v. True, 32 Me., 105. Anyone having a substantial interest in the property may redeem. Rice v. Nelson, 27 Iowa, 148; Pardee v. Van Anken, 3 Barb., 534; In re Willard, 5 Wend., 94; Farnum v. Metcalf, 8 Cush., 46; Goodman v. White, 26 Conn., 317; Smith v. Austin, 9 Mich., 465. No one can come into a court of equity and ask for the redemption of a mortgage, unless he is entitled to the legal estate of the mortgagor, or has an existing interest under it. Grant v. Duane, 9 Johns., 612; Rapier v. Gulf City Paper Co., 64 Ala., 330; Lomax v. Bird, 1 Vern., 182; Chamberlin v. Chamberlin, 12 Jones & S., 123; Scott v. Henry, 13 Ark., 112; McDougald v. Capron, 7 Gray, 278. The holder of a tax title has no right to redeem from a mortgage held in trust for a minor. Witt v. Mewhirter, 57 Iowa, 545. A bill to redeem, filed by several persons jointly. cannot be maintained if the ground of their joint claim fails, although one of them may be entitled to redeem in a separate proceeding, claiming from another source of title. Bigelow v. Booth, 39 Mich., 622. Any one of owners in common, or of owners of distinct parcels of mortgaged premises, may redeem by paying the whole amount due on the mortgage. Laylin v. Knox, 41 Mich., 40; Taylor v. Porter, 7 Mass., 355; McLaughlin v. Curts, 27 Wis., 644: Lyon v. Robbins, 45 Conn., 513; Street v. Beal, 16 Iowa, 68; Knowles v. Rablin, 20 Iowa, 101. titled to redeem the premises by the payment of | ant a good and sufficient deed, as prayed in the the amount of the purchase money, with inter- bill of complaint. est to the date of the decree, and that the respondent, upon the payment of such amount, may be decreed to convey to the complainant all the title and interest in the premises which he acquired by such purchase. Deeds, mortgages, and other instruments of writing which are authorized to be recorded, take effect, by the law of that State, from and after the time of filing the same for record, and operate as notice to creditors and subsequent purchasers. R. S. of Ill., 1874, 278, sec. 30. Argument to show that the respondent had due notice of the claim of the complainant is quite unnecessary; as the case shows, beyond controversy, that the deed under which he acquired the title to the premises was duly recorded, and that he was, before that time, in the open, visible and exclusive possession of the same, which, by the settled law of that State, is 38] *constructive notice to creditors and subsequent purchasers. Truesdale v. Ford, 37 Ill., 210. Record evidence of a conveyance operates as notice, and so may open possession; the rule being that actual, visible and open possession is equivalent to registry. Cabeen v. Breckenridge, 48 Ill., 91; Dunlap v. Wilson, 32 Ill., 517; Bradley v. Snyder, 14 Ill., 263. Viewed in the light of these authorities and the allegations in the bill of complaint, it is clear that the first assignment of error must be overruled. Nor is it necessary to enter into any discussion of the second error assigned, as it appears that the complainant filed the bill of complaint to redeem the premises as soon as it became necessary to vindicate his title and possession against the ejectment suit instituted by the respondent. Beyond all doubt, the contract under which the complainant claims the right to purchase the premises is subject to the mortgage held by the respondent; but it is a sufficient answer to the third and fourth assignments of error to say that the decree sustains the validity of the mortgage, and makes ample provision to secure to the respondent all the rights which he acquired by virtue of the sale and purchase under the foreclosure. Parties interested in the premises who were not served with process are not bound by that decree, and it follows that the respondent took his title subject to the rights of the complainant acquired under the deed, just the same as if no such decree had ever been made. Suppose that is so, then it only remains to examine the decree, and ascertain whether it makes due provision to preserve all the rights of the respondent. Coming to the proofs, it will be sufficient to say that the finding of the court below shows that all the material allegations of the bill of complaint are fully sustained, which is all that need be said in support of the theory of fact embodied in the decree. Such being the fact, the court decreed that the complainant was entitled to relief, he paying to the respondent, within one hundred days from the date of the decree, the sum of $913.33, with costs of suit; and that in default of such payment the bill of complaint 39] shall stand dismissed; and that the *respondent, if the payment be made, shall, within thirty days thereafter, execute to the complain Examined in the light of these suggestions, as the case should be, it is clear that the decree is correct, and we are all of opinion that there is no error in the record. Decree affirmed. Government contract-damages. 1. Where a person contracted to deliver hay in Indian Territory, and the United States stipulated to protect the contractor by military escort while engaged in the fulfillment of the contract, the failure to afford such protection renders the United States responsible for the value of the property actually lost for want of it. 2. But the Government was not bound as an insurer against all loss from hostile forces, not only arising from destruction of property, but from loss of speculative profits on grass that was never cut, and hay that was never made or delivered or owned by the contractor, and for work that was never done. 3. The true measure of damages was the actual value of the property lost by the contractor. [Nos. 841, 880.] Submitted Jan. 14, 1878. Decided Feb. 4, 1878. Cross appeals from the Court of Claims. The case is fully stated by the court. Mr. Edwin B. Smith, Asst. Atty-Gen., for the United States. Messrs. S. W. Johnston and R. B. Warden, for McKee. the court: Mr. Justice Miller delivered the opinion of McKee had two separate written contracts with the Quartermaster's Department for the delivery of hay during the summer of 1864. The delivery in the one contract to be at Fort Gibson, and within seven miles of that fort, and in the other, at Cabin Creek and Hudson's Crossing of the Neosho River. The locality was the Indian country, south of Kansas and west of Arkansas, which was the theater of hostilities. Each contract contained the following provision, which is the foundation of [234 plaintiff's claim against the United States now under consideration: "It is expressly understood by the contracting parties hereto, that sufficient guards and escorts shall be furnished by the Government to protect the contractor while engaged in the fulfillment of this contract." A large part of the contract was fulfilled by delivery of the hay, and for that McKee was paid. A considerable amount of hay, cut and not delivered, was destroyed by the enemy, and for that he was paid. He lost in wagons, horses and other personal property, by the attacks of the enemy, over $15,000, and for that he was paid. In addition to this he claims now, and was |