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ly for the officer performing his duties in good the sureties with the United States, as fully as
faith. In the case of Miller v. Stewart, 9 it might be with an individual: and this court
Wheat. 680, the defendant was surety in a expressly recognized the binding authority of
bond conditioned that Ustick “had faithfully such a contract on the sureties.
discharged, and should continue to discharge From these decided cases it clearly results
the duties of his appointment,” as a collector that where a surety voluntarily enters into a
of internal revenue; and it was sought to bond he is bound by its conditions as they are
charge him with duties arising under a subse- to be deduced from the recitals of the instru-
quent appointment. This the court refused to ment itself; that these conditions may be
sanction; and thus laid down the obligations retrospective in their character, and apply to a
of a surety: "To the extent, and in the man- series of transactions commencing before the
ner, and under the circumstances pointed out date of the bond, if such is the agreement
in his obligation, the surety is liable, but no therein; that the agreement to pay over public
further. He has a right to stand upon the very moneys applies equally to those received be-
terms of his contract." It is evident, from fore, as after the date of the bond, even with.
the terms of the bond, that it was dated after out a retrospective clause, where they remain
the appointment, yet the surety voluntarily in hand at the date of the bond.
made himself liable during the whole of that In the present case, the record establishes
appointment; and, as in the case of Hassell v. the facts necessary to bring it within these
Long, the court, though they would not extend principles. The bond is voluntary; it embraces
his liability further, asserted its existence fully in terms all acts of the principal as far back as
to that extent. In the case of The United the 23d of December; the money was in his
States v. Kirkpatrick, 9 Wheat. 720, the de- hands at the date of the bond.
fendant was surety in a bond dated 4th of De- An objection of a different character was
cember, 1813; the principal obligor was com- taken by the counsel for the defendant in er:
missioned on the 13th of November; the court ror, but not pressed in the argument. It is to
said “the bond in question was given with ex- the form of the replication, which, it is al-
press reference to this commission, and its ob- leged, "does not fairly respond to the plea;"
ligatory force was, of course, confined to acts but is "evasive and uncertain." An examina-
done while that commission had a legal con- tion of the pleadings will show that this ob-
tinuance.” In the case of the United States v. jection cannot be sustained; but this is un-
Nicholl, 12 Wheat. 505, the defendant was necessary; for if it were valid, it was not as-
surety in a bond, dated 22d of February, 1819, signed as a special cause of demurrer, without,
for the faithful performance by Robert Swart- which, by the *law and practice of Mis- (*202
wout of the duties of his office of navy agent, sissippi, it could not be noticed by the court.
which commenced on the 30th of November, Revised Code of Miss. 614.
1818, and continued for four years. The court On the whole case, therefore, it is submitted
below had charged the jury that the defend that the court below erred in sustaining the
apt was not liable for a deficiency of public demurrer, and that the liability of the sure-
money, reported on by the accounting officers, ties ought to have been enforced.
subsequent to the expiration of his office. On Mr. Cocke, for the defendant.
this, the Supreme Court say, that if by this This was an action of debt, brought by the
“it was intended to convey the idea, that he plaintiffs in error against the defendants, in
was not responsible for money that came into the Circuit Court of the United States for the
Swartwout’s hands while in office but which District of Mississippi. It is founded on the
be afterwards failed to account for and pay official bond given by Gordon D. Boyd, as re-
over, it was clearly incorrect.” In the case of ceiver of public moneys of the United States,
Farrar v. The United States, 5 Peters, 373, the for the district of lands subject to sale at Co-
plaintiff was the surety of Rector, the Sur. lumbus, in the State of Mississippi.
veyor-General, in a bond, dated 17th of August, By an inspection of the bond, it appears that
1823, conditioned that he "shall faithfully dis- the said Gordon D. Boyd was appointed re-
charge the duties of his office.” He was apceiver on the 27th day of December, 1836; but
pointed on the 13th of June, 1823, and had re- that he and his sureties did not execute the
reived certain public money before the date of bond sued on, until the 15th day of June, 1837;
201*] his 'bond, and some even before the and that the bond was not approved at the
date of his commission. This money he failed Treasury Department of the United States un-
to pay over, and the sureties denied their lia- til the 9th day of October, 1837.
bility for such failure. The Supreme Court The sureties, the present defendants, craved
said, “that for any sums paid to Rector, prior oyer of the bond and the condition; and the
to the execution of his bond, there is but one condition being read to them in these words:
ground on which the sureties could be held an “The condition of the foregoing obligation is
swerable, and that is, on the assumption that such, that whereas the President of the United
he still held the money in bank, or otherwise. States, hath, pursuant to law, appointed the
If still in his hands, he was, up to that time, said Gordon D. Boyd receiver of public moneys
a bailee of the government; but upon the con for the district of lands subject to sale at Co-
trary hypothesis, he had become a defaulter, lumbus, in the State of Mississippi, for the
and his defense was already consummated." term of four years from the 27th day of De-
They go on to eay, referring to the latter state cember, 1836: Now, therefore, if the said
of the case, that then, "if intended to cover Gordon D. Boyd shall faithfully execute and
past dereliction, the bond should have been discharge the duties of his office, then the above
made retrospective in its language.” In the obligation to be void and of none effect; other-
case of The United States v. Tingey, 5 Peters, wise, it shall abide and remain in full force and
;28, the question arose whether or not a bond virtue.” The defendants pleaded that the said
voluntarily entered into might not be made by Gordon D. Boyd did, from time to time, and at

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all times, after the making of the said bond' 4th. The said second breach does not state and condition thereof, well and truly observe, or show that the said Gordon D. Boyd neglectperform, fulfil, and keep the condition of the ed, failed, or refused to pay over any moneys said bond, by faithfully executing and dis- collected by him as such receiver, at any time charging the duties of his office, according to after the day of the date of said bond. the tenor and effect, true intent and meaning To this there was joinder in demurrer; on of the condition of the said bond.

which the Circuit Court, after argument, gave To this plea the plaintiffs replied, and as judgment for the defendants. To reverse this signed two breaches of the condition to the judgment, the plaintiffs have prosecuted their said bond, to wit:

writ of error to the Supreme Court of the 1st. That the said Gordon D. Boyd did not United States. To sustain the judgment of 203*! well and truly *keep and perform the the court below, on the part of the defendants, condition of the said bond declared on, but it is insisted: broke the same in this, to wit: that the said 18t. That it is the duty of the court to look Gordon D. Boyd, after the said 27th day of into the contract itself; the construction of it December, 1836, and while he was receiver of is a question of law, and the court will conpublic moneys for the district of lands sub-strue it with a view to the real intention of ject to sale at Columbus, in the State of Mis- the parties to it. It will be found that the sissippi, and as such receiver, received of the contract was entered into on the 15th of June, public moneys of the United States divers 1837, and approved on the 9th of October, 1837; large sums of money, amounting in the whole that it is prospective in its terms. It is an to a large sum of money, to wit: to the sum of executory contract, both in its terms and legal fifty-nine thousand six hundred and twenty: effect. Its object was to secure the faithful two dollars and sixty cents, at the district discharge of duties thereafter to be performed. aforesaid; which said sum of fifty-nine thou- If, at the time of the execution of the bond, on sand six hundred and twenty-two dollars and the 15th of June, 1837, the sureties had been sixty cents, the said Gordon D. Boyd then and told that Boyd had already become defaulter there wholly failed, neglected, and refused to to the government, to the amount of fifty-nine pay over to the plaintiffs, pursuant to his thousand six-hundred and twenty-two dollars instructions from the Secretary of the Treasury and sixty cents, and they had then been asked of the United States, as he was bound to do to become responsible for that defalcation, it by law, and the duties of his said office of re-would have involved very different considera. ceiver.

tions than those of an undertaking that he 2. That the said Gordon D. Boyd, after the should thereafter execute and discharge the 27th day of December, 1836, and on divers duties of his office. days and times between that day and the 30th In the matter of Rector, in the case of Farof September, 1837, and while he was receiver rar and Brown v. The United States, 5 Peters, of public moneys for the district of land sub- 373, this court well say: "If the contract is ject to sale at Columbus, in the state of Mis- entered into to cover a past dereliction, the sissippi, and as such receiver, received divers bond should have been made retrospective in large sums of the public money of the United its language. The securities have not underStates, amounting in the whole to a large sum taken against his past misconduct. of money, to wit: to the sum of fifty-nine In the case of The United States v. Giles et thousand six hundred and twenty-two dollars al. 9 Cranch Rep. 212, the court say: "If and sixty cents, at the district aforesaid; and the marshal, before the date of his official that the said sum of fifty-nine thousand six bond, receive money upon an execution (* 205 hundred and twenty-two dollars and sixty due to the United States, with orders from the cents remained in the hands of the said Gordon comptroller to pay it into the Bank of the D. Boyd, as receiver as aforesaid, on the 30th United States, which he neglects to do; the day of September, 1837, to wit: at the district sureties in his official bond, executed afteraforesaid; and that the said Gordon D. Boyd wards, are not liable therefor upon the bond, then and there wholly failed, neglected, and although the money remained in the marshal's refused to pay the same over to the plaintiffs, hands after the execution of the bond." pursuant to his instructions from the Secretary This case, on principle, covers all the grounds of the Treasury of the United States, as he upon which Boyd's securities are attempted to was bound to do by law, and the duties of his be inculpated. uffice.

So far as the proceedings in this action upon To this replication the defendants demurred; the bond are concerned, there is, perhaps, no and, for causes of demurrer, stated the follow- difference in point of law between the liability ing, to wit:

of Boyd and the liability of the sureties. It 1st. The first breach does not state, or show may be said that it is the contract of both, and che time at which the sum of money mentioned binds both or neither. United States v. Orr's was received by the said Gordon D. Boyd, as Adm’rs, 8 Peters Rep. 399. receiver: whether the same was received before The United States are, however, not without or after the day of the date of the said bond. remedy; for there can be no doubt but that an

2d. The first breach does not state or show action in another form would lie against Boyd 204"] that the said Gordon *D. Boyd hath for the amount received, however or whensofailed, neglected, or refused to pay over to the ever received. Ibid. plaintiffs, any moneys collected by him at any The Supreme Court may now be informed time after the day of the date of the said bond. that, for the amount of his defalcation, Boyd,

3d. The second breach assigned, does not in an action of assumpsit, at the suit of the state or show any time at which the said United States against him, for so much money Gordon D. Boyd received the said sum of money I had and received to the use of the United mentioned in the said second breach.

States, bas confessed a judgment in the court

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below. But be this as it may, it cannot be to be void and of none effect; otherwise, it
true that the sureties can be inculpated for any shall abide and remain in full force and virtúe."
defalcation that may have occurred prior to *The defendants craved oyer of the [*207
their having become sureties. The contract of bond, condition, etc., and pleaded performance
a surety is to be construed strictly, both in law of the condition.
and in equity; and his liability is not to be By a replication, the defendants assigned two
extended by implication beyond the terms of breaches.
bis contract. Miller v. Stuart et al. 9 Wheat. 1. That said Boyd, after the 27th day of De-
680.

cember, 1836, received, in his official capacity, To the extent, and in the manner pointed fifty-nine thousand six hundred and twenty-two out in his obligation, is the surety bound, and dollars, which he failed to pay over to the no further; and he has the right to stand upon United States, as he was bound to do by law. the very terms of his contract. Ibid.

2. That said Boyd on the 27th day of Decem2d. In a case like the present, the pleading ber, 1836, and at divers days between that day justly commands our attention. The replica- and the 30th day of September, 1837, received tion holds the important position of the declara- fifty-nine thousand six hundred and twentytion, and should state the facts upon which the two dollars as receiver, which sum remained in plaintiffs rely for a recovery, with the same his hands on the 30th day of September, 1837; certainty as would be required in a declaration; and he failed to pay the same pursuant to his a certainty at least equal to the legal effect of instructions from the Secretary of the Treasthe contract declared on. It should show the ury, as he was bound to do by law, and the matter of right, in point of law, on which the duties of his office. plaintiffs seek a recovery, It should support To this replication the defendants demurred, the declaration, and be at the same time re- and the court below sustained the demurrer. 206*) sponsive *to the plea. It should either The first question arising on the pleadings is, confess and avoid the plea, stating distinctly the whether the sureties of Boyd are bound for dematter of avoidance, or it should deny the plea, falcations between the 27th of December, 1836, so that the defendants could take issue on the the date of the appointment, and the 15th day matter of fact on which the plaintiffs'legal of June, 1837, the date of the bond. right for a recovery depends.

The condition of the bond is prospective, and Based upon the position that the defendant's in its last clause does not differ in effect from liabilities were, by the terms and legal effects that passed on in the case of Farrar and Brown of their contract, limited to the execution and v. The United States, in 5 Peters, 374, 389. In discharge of the official duties from and after that case, William Rector had been appointed the 15th June, 1837, they tendered to the plain- surveyor of public lands, and given bond with tiffs the issue that Boyd had from time to sureties, conditioned, "If the said William Rectime, and at all times after the giving of the tor shall faithfully execute and discharge the bond, well and truly kept and performed the duties of his office, then said bond to he void," condition of it.

etc. It is manifest that the plaintiffs, in their Rector had been appointed and commissioned replication, have attempted to dodge this ques. as surveyor on the 20th February, 1823. The tion.

bond bore date the 7th day of August, 1823. They have failed, and refused fairly to re- ; The prominent question presented on the trial spond to the plea; and from anything appear was, whether the sureties of Rector were liable ing in the replication, it is as reasonable to for moneys received by him as surveyor, and suppose that the money mentioned was re- appropriated to his own use, after his appointceived between the 27th day of December, 1836, ment, and before the execution of the bond; on and the 15th of June, 1837, as it is to suppose which the court held, that the sureties could that the money was received after the 15th of only be made answerable for moneys in Rec. June, 1837.

tor's hands at the date of the bond; which were The replication is, therefore, obviously eva held by him in his official capacity, in trust for sive and uncertain, and fails to set forth such the government, and not for moneys previously facts under the contract as, in point of law, appropriated to his own use. Say the court: entitle the plaintiffs to recover.

"If intended to cover past dereliction, the The court below was assuredly right in sus. *bond should have been made retro. (*208 taining the demurrer, and this court will affirm spective in its language. The sureties have that decision.

not undertaken against his past misconduct." Mr. Justice Catron delivered the opinion of and pay quarterly, as prescribed by the rules of

But the failure of the receiver to account, the court: This was an action of debt brought upon a

the Treasury Department; or monthly, if the bond with the following recital and condition, sum of ten thousand dollars had been received dated June 15th, 1837:

during any one month, was no legal defalcation "The condition of the foregoing obligation of which the sureties can avail themselves. is such, that whereas the President of the Laches are not imputable to the government. United States hath, pursuant to law, appointed made by its officers at short periods are de

The regulations requiring settlements to be the said Gordon D. Boyd receiver of public moneys for the district of lands subject to sale signed for the protection of the government, at Columbus, in the State of Mississippi, for and merely directory to the officers, and form the term of four years from the 27th day of no part of the contract. Such is the settled December, 1836.

doctrine of this court as holden in The United “Now, therefore, if the said Gordon D. Boyd States v. Kirkpatrick, 9 Wheaton; The United shall faithfully execute and discharge the 'States v. Vanzant, 11 Wheaton; and The Unitduties of his office, then the above obligation ed States v. Nicholl, 12 Wheaton, 509.

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cause

It follows, the averment in the replication, tional pleadings, or an amendment of the presthat Boyd, from the 27th of December, 1836, ent ones, according to the rules and practice of to the 30th of September, 1837, had received on the Circuit Court; and on such terms as it behalf of the United States, the sum of fifty. may impose. nine thousand six hundred and twenty-two We order that the judgment be reversed, the dollars, which sum, at the last date, remained demurrer overruled; and that judgment be in his hands, and for which he then failed to entered by the Circuit Court, for the penalty of uccount, as bound to do by law, and the duties the bond in favor of the United States against uf his office, is a good breach of the condition, the defendants, to be discharged by the assessand well assigned; it matters no what time ment of damages on the second breach in the the moneys had been received, if after the ap- replication, unless the pleadings, on leave pointment they were held by the officer in granted, be amended, in prevention of such trust for the United States, and so continued judgment and assessment of damages. to be held at, and after, the date of the bond. That they were so holden at the end of the *This cause came on to be heard on (*210 third quarter of 1837, is admitted by the de- the transcript of the record from the Circuit murter.

Court of the United States for the Southern It is insisted on behalf of the United States, district of Mississippi, and was argued by that aside from the foregoing considerations, counsel; on consideration whereof, it is orthe sureties are bound equally with the princi dered and adjudged by this court that the pal in the bond, on the ground that the condi- judgment of the said Circuit Court in this tion, on settled legal principles, and by impli- cause be, and the same is hereby reversed; and cation, is retrospective, and covers all defaults that this

be and the

same is of the officer, from the date of the commis- hereby remanded to the said Circuit Court, sion; because, it is recited, and part of the obli- with directions to overrule the demurrer, and gation, that Boyd had been appointed receiver to enter judgment for the penalty of the bond, for four years from the 27th day of December, in favor of the plaintiff, against the defend1836. We have with much care considered this ants, to be discharged by the assessment and position, and think it cannot be sustained. payment of damages on the second breach in This court held, in Miller v. Stuart, 9 Wheat. the replication, unless the pleadings, on leave 702, that the liability of a surety is not to be granted, be amended, in prevention of such extended, by implication, beyond the terms of judgment and assessment of damages. his contract; that his undertaking is to re209*] ceive a strict interpretation; "and not to extend beyond the fair scope of its terms; and that the whole series of authorities proceeded on this ground. The principal ones re

'AMIS V. PEARLE. (*211 lied on in that case have been relied on in the present; and we think the principles settled by

Practice. them preclude the court from maintaining that the sureties are liable by implication, contrary Motion by the counsel of the defendant to docket to the plain prospective obligation of the bond: and dismiss a case in which a writ of error bad “that the said Boyd shall faithfully execute error having falled to file the writ' of error in the

been sued out of the Circuit Court, the plaintif in and discharge the duties of his office.” In the Supreme Court, and to prosecute the same. The language of the court, in Farrar and Brown v. counsel for the defendant in error produced the The United States: "If intended to cover past Circuit Court, and a citation signed by the judges

original writ of error, signed by the clerk of the dereliction, the bond should have een made of the Circuit Court. Held, that the substance of retrospective in its language.”

the forty-third rule of the court was complied

with; and the case was docketed and dismissed. Some difficulty has been presented in regard The production of this writ of error, with the citato the form of the replication, testing it by the tion, is the highest evidence that the writ of error common law principles of pleading. It avers

has been duly sued out and allowed. The certif

cate of the clerk of the Circuit Court required by Beveral breaches. The cause, however, comes the rule, Is but prima facie evidence. by writ of error from the District of Missis. ; the one

Na motion on behalf of the defendant in State govern the pleadings. By the Act of error, to docket and dismiss the suit, under 1822, sec. 2, found in the Revised Code of Mis the forty-third rule of the court. sissippi, 614, any number of breaches may be assigned; and by sec. 6, when a demurrer shall Mr. Justice Story delivered the opinion of be joined in any action no defect in the plead the court: ings shall be regarded by the court, unless In this case a motion has been made on be. specially alleged in the demurrer, as causes half of the defendant in error, to docket and thereof. That several breaches had been as dismiss this suit, under the forty-third rule of signed is not alleged as a special cause of de the court. That rule allows the suit to be murrer, and therefore could not have been docketed and dismissed upon the production of noticed by the court, had no provision existed a certificate from the clerk of the court below, justifying more breaches than one; even had certifying that the writ of error had been such replication been contrary to the strict duly sued out and allowed. In the present rules of pleading by the common law.

case no such certificate is produced. But the It is proper to remark that when this cause original writ of error signed by the clerk of the is romanded to the Circuit Court for further court below, and also a citation signed by the proceedings to be had therein, it will be in the judge of the court, is produced by the defendcondition it would have been, had that court ant in error, and is now before us. Under these overruled the demurrer; and subject to addi. I circumstances, we are of opinion that the sub

stance of the rule is complied with. The cer- lants against him and two other persons named tificate of the clerk is but prima facie evidence in the proceedings, upon a promissory note of the issuing and allowance of the writ of signed by them, and purporting to be for the error; whereas, the production of the writ of sum of five thousand dollars, upon which judg. error, with the citation, is the highest evi- ment and execution had issued. dence of the fact that the writ of error has *The complainant charges in his bill, (*214 been duly sued out and allowed. Under these that the claim of the appellants against him is circumstances, the court are of opinion that fraudulent, and he sets out fully the par. the motion ought to be granted. In point of ticular facts upon which he relies to prove the fact, this same question came before this court fraud, and avers that no process, save the in the case of Ward et al. V. The Common- execution, was served upon him in the suit at wealth Bank of Kentucky, at January law, and that he had no notice that the suit 212') *Term, 1838, under circumstances less was brought against him, until the execution cogent; and the same decision was then made. was issued; that he entered no appearance to In that case, certified copies of the writ and the suit, nor filed any plea in it, nor authorized citation were filed, and not the originals; and anyone to do it for him; and that if any atthe court ordered the case to be docketed and torney had done so, it was without the com. dismissed

plainant's knowledge or consent; and prays that the appellants, who were made defendants in the bill, might be perpetually enjoined from

complainant on said 318*] "MARTIN A. LEA, Monroe Rabetaille, proceeding against th and Charles G. Langdon, Appellants,

judgment and also for general relief.

'The injunction was accordingly granted by

the court; and afterwards, Lea and Langdon, ENOCH S. KELLY, Appellee. two of the appellants, appeared and answered,

denying all fraud, and alleging that their No appeal from interlocutory decree. claim against the appellee was fair and just.

It does not appear that Rabetaille, the other A judgment was entered on a promissory note defendant, answered the bill; and, in this state drawn by Kelly and others in favor of Lea and of the proceedings, the Circuit Court, at April wards. Kelly, the appellee, filed a bill on the equity Term, 1839, passed the following decree: side of the court, for the purpose of being relieved "This day came the parties by their solicit. from the judgment at law obtained against him and two other persons, on the promissory note. ors, and this cause coming on to be heard, upThe bill alleged fraud in the plaintiffs in the suit, on the bill, answer, and exhibits, it is ordered, and that the complainant had no notice of the suit, adjudged and decreed, that, upon condition and had not authorized an appearance, or filed any that the said Enoch S. Kelly, complainant, ap. plea in the same. injunction of proceedings on the judgment, and pear, plead to the merits of the case, and go to for general relief. The injunction was granted ; trial on the same at the next term of this and afterwards, on the appearance of two of the plaintiffs in the suit at law, the Circuit Court de court, waiving the question of jurisdiction, and creed, that, on the condition that the complainant, pay costs of the suit at law and the proceed. Kelly, appear and plead to the merits of the case, ings in equity, a new trial be awarded to the waiting the question of jurisdiction, and pay costs of the suit at law, and the proceedings in equity, a

said complainant." new trial be awarded to the complainant. Two of It is from this order or decree that the pres. the plaintiffs in the suit at law, who had appeared ent appeal has been taken; and it is evident to reverse this decree. Held, that the decree of the that the order is merely interlocutory, and that Circuit Court was merely interlocutory; and was no final decree has been passed in the case. not a Adal decree for which an appeal could be the bill has not been dismissed, nor has the taken.

injunction been made perpetual. The new trial A to

ed States, for the Southern District of the conscience of the court; and the bill reAlabama.

tained, and the injunction continued, until the Mr. Kee, for the appellees, moved to dismiss finding of the jury should be known. The suit the appeal. He alleged that the decree of the in equity is therefore yet pending and has court, from which the appeal was prosecuted, not been disposed of by final decree, and the was not a final decree.

appeal to this court must be dismissed.

STATE

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

*ANN BUYCK, Widow of Don Augustin ("215 A motion has been made by the appellee to Buyck, Deceased, and The Unknown Heirs dismiss this case, upon the ground that the de of said Buyck, Appellants, cree of the Circuit Court, from which the appeal has been taken, is not a final decree, within the meaning of the Act of 1803, ch. 93.

THE UNITED STATES, Appellees. It appears that a bill was filed against the condition of grant of land not performed, grant appellants, in the Circuit Court of the United

is void-grant void for uncertainty. States for the Southern District of Alabama, by Enoch 8. Kelly, the present appellee, for The decree of the Superior Court of East Florlthe purpose of being relieved from a judgment da, by which a grant of ifty thousand acres of at law in the said court, obtained by the appel NOTE.-As to conditions precedent and subse

quent, in deeds and wills, see note to 6 L, ed. U. & NOTE.--As to what is a inal decree or judgment 101. from which appeal lies, see notes to 5 L. ed. U. 8. As to who may perform and erect, see note to 302; 49 L. ed. U. 8. 1001 ; 62 L.R.A. 515.

9 L. ed. U. S. 89.

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