Opinion of the Court.

stated in the deed what part of the consideration remains unpaid." This statute is restrictive in its character, and does not originate a lien where under general principles of equity one would not exist. Long v. Burke, 2 Bush, 90, 91; Ledforth v. Smith, 6 Bush, 132; Brown v. Ferrell, 83 Kentucky, 417. In Long v. Burke a part of the consideration was that the vendee" is to pay all the debts which were owing by me the 10th day of March, 1860." Touching the question as to whether a vendor's lien existed for the performance of this covenant, the court held it to be a mere personal covenant, and also held that under the statute no lien existed, because the deed did not state what part of the consideration remained unpaid. As to this, the court said: "It is very clear that a covenant to pay all the vendor's debts existing on a given day does not state the portion of the purchase price unpaid; nothing, in fact could be more indefinite; it did not give even a clue as to how this amount could be ascertained. Had it even specified to whom these debts were due, without stating the amount to each, it would have been as indefinite as to state that some of the purchase price was still unpaid to the vendor, which the court held to be insufficient." See also Chapman v. Stockwell, 18 B. Mon. 650, 653. By the statute, as it now stands, the restriction applies only to bona fide creditors and purchasers. Ross v. Adams, 13 Bush, 370; Tate v. Hawkins, 81 Kentucky, 577, 582; Thompson v. Heffner's Executors, 11 Bush, 353.

Assuming the mortgagees, through their trustee, the Central Trust Company, to have notice of the covenants of this deed, the deed itself does not expressly state "what part of the consideration remains unpaid." From it a creditor or purchaser might learn that the consideration consisted in covenants, some of which were perpetual, while others might last for several generations. The purpose of the statute was to give definite notice to creditors and buyers of the extent to which the purchase price remained unpaid. The judgment in Long v. Burke seems conclusive. If a covenant to pay all the debts of the vendor due on a certain day was too indefinite to stand as a compliance with this statute it is difficult

Syllabus.

to see how indefinite, continuing covenants, such as those found in this deed, can be held to be a definite statement of the part of the consideration remaining unpaid.

The case must be

Remanded, with directions to enter a decree in accordance with this opinion.

Under section 11 of the judiciary act of September 24, 1789, 1 Stat. 73, c. 20 (Rev. Stat. sec. 629), which confers on Circuit Courts original jurisdiction" of all suits of a civil nature at common law," and section 14 of the same act (Rev. Stat. sec. 716) which provides that "such courts shall have power to issue all writs not specifically provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the usages and principles of law," the Circuit Courts of the United States have no jurisdiction to consider and decide a suit for a mandamus to compel the discharge of a statutory or other duty, except for the purpose of enforcing their judgments previously rendered.

Even in States where by statute it is specifically provided that a mandamus may be issued against public officers to levy a tax to pay a public debt without other proceedings than an application for a mandamus, and a hearing thereon, such a statute does not apply to a Circuit Court of the United States, and in those courts a judgment against the corporation liable for the debt must be rendered before a mandamus will issue.

The writ of mandamus in the Circuit Courts of the United States is never an independent suit, but is only a proceeding ancillary to the judgment which gives the jurisdiction, and when issued becomes a substitute for the ordinary process of execution to enforce the payment of the same as provided in the contract.

In the Circuit Courts of the United States there must be a judgment for the recovery of money before there can be a mandamus to levy a tax to pay it.

VOL. XLIII—42

Syllabus.

A money judgment is one which adjudges a defendant, either as an individual or in a representative capacity, absolutely liable to pay a sum certain to the plaintiff and awards execution therefor, and which may be fully satisfied by the defendant by paying into court the amount adjudged, with interest and costs.

A judgment against a county for a certain amount of money is a money judgment, although the enforcement of the judgment is limited to process by taxation against certain lands in the county.

A judgment was entered in the Circuit Court of the United States for the Eastern District of Michigan against a county for a certain sum of money on drain warrants issued in pursuance of Act No. 43 of the Michigan Laws of 1869 as amended by Act No. 169 of the Laws of 1871. The judgment as entered recited that the jury had assessed the damages at a certain amount, and ordered that "the said plaintiff do recover against the said defendant his damages by the jurors aforesaid in form assessed .. together with his costs and charges to be taxed, and that a writ of mandamus shall issue to the board of supervisors of said county directing that the amount of said damages, interest, costs and charges shall be levied and assessed as follows." Then the judg ment enumerates the lands against which assessments shall be made and the amount of the assessments. A writ of error to the Supreme Court was allowed, and a supersedeas bond was filed, signed by a number of individuals, but not by the county. The bond, after reciting the fact that judgment had been entered against the county for a certain sum of money which was "to be collected by assessment of tax upon certain lands" which were enumerated, concluded as follows: "Now, therefore, the condition of this obligation is such that if the said county shall prosecute its said writ of error to effect, and shall pay and satisfy such judgment as shall be rendered against it upon said writ of error in said Supreme Court, then this obligation to be void, otherwise to remain in full force and effect." Held, (1) That the judgment against the county was a money judgment; (2) that the recovery of the money was "not otherwise secured" than by the judg ment itself; (3) that the bond was in the class referred to in Rule 29 of the Supreme Court relating to supersedeas bonds, in which the bond required to make the writ of error a supersedeas must be conditioned upon the payment of the amount of the judgment; (4) that judgment was properly rendered against the county for an amount of money to be collected by taxes on the lands benefited; (5) that it was immaterial that the county did not sign the bond, as the validity of the bond was not affected by such omission; (6) that the sureties were bound, whether the county could collect the money or not; and (7) that the obligee in the bond was under no duty to wait until the county could collect the taxes, inasmuch as the condition of the bond was broken when the Supreme Court affirmed the judgment, and finally settled that the county had not prosecuted its appeal to effect.

United States ex rel. Day v. Mayor, etc., of the City of New Orleans, 8 Fed.

Statement of the Case.

Rep. 112, Fourth National Bank v. Franklin County, 10 Central Law Journal, 193, and Supervisors v. Kennicott, 103 U. S. 554, distinguished.

Before TAFT and LURTON, Circuit Judges, and HAMMOND, District Judge.

This is a writ of error to review a judgment of the Circuit Court of the United States for the Eastern District of Michigan for $7,053.01 in favor of Henry M. Aylesworth against the obligors on the following supersedeas bond:

"Know all men by these presents, that we, M. McVeigh, W. Kuhlman, B. Sharp, S. Hile, Chas. Shafer, L. J. Fuller, T. Lewis, W. C. Stone, N. B. Johnson, J. F. Innes, W. A. Furman, J. S. Parker, H. C. Burlingame, all of the county of Gratiot, State of Michigan, are held and firmly bound unto Henry M. Aylesworth, of New York State, in the sum of ten thousand five hundred dollars, lawful money, to be paid to the said Henry M. Aylesworth, his executors, administrators, or assigns; for which payment well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents.

"Sealed with our seal and dated the 13th day of October, A.D. 1890.

"Whereas judgment has been rendered in the Circuit Court of the United States for the Eastern District of Michigan and in favor of said Henry M. Aylesworth, and against the county of Gratiot, for five thousand one hundred and twenty dollars and fifty-six cents, damages and costs, taxed at forty-five dollars and twenty-seven cents, which is to be collected by assessment of tax upon certain lands in Arcada, Newark, and New Haven townships in said county, in which judgment and proceedings the said county of Gratiot complains that there is error in substance, and to be relieved therefrom has obtained a writ of error to remove the same to the Supreme Court of the United States, to the end that said errors may be corrected:

"Now, therefore, the condition of this obligation is such that if the said county of Gratiot shall prosecute its said writ

Statement of the Case.

of error to effect, and shall pay and satisfy such judgment as shall be rendered against it upon said writ of error in said Supreme Court, then this obligation to be void, otherwise to remain in full force and effect.

The court below held that the lawful effect of the bond was to require the obligors to pay the full amount of the judgment which was superseded, and so charged the jury. The obligors' counsel contended that there was no authority under the law to exact a bond of this kind because the judgment was merely an order for mandamus, and that the plaintiff, having shown no damage by the delay, was entitled to nothing more than his costs expended on the appeal, the words in the bond to the contrary notwithstanding.

The original judgment which was superseded was rendered by the court below on certain drain warrants issued in pursuance of Act No. 43 of the Michigan Laws of 1869 as amended by Act No. 169 of the Laws of 1871. The force and effect of this act and the character of the warrants are shown in the following passage from the opinion of Mr. Justice (then Judge) Brown in rendering the original judgment:

"As the authority of the drain commissioner to draw these orders is unquestioned, it is evident that there must be a remedy in favor of the payee or holder against some one for pay