is purely a question of practice, to be reviewed only by a motion for a new trial in the trial court, and is not the proper subject of a bill of exceptions or of a writ of error, because it does not affect the merits of the controversy. Day v. Woodworth, 13 How. 363, 370.

*The plaintiff, as a witness at the trial, was asked on cross-examination by the defendant what was the value of the 130 shares of stock, and whether it was good security for the $10,000 note. The question was objected to as immaterial and irrelevant, but was admitted. The answer was that if it had been paid up he would have thought it good security, but it was not paid up and he thought it was not good security. The answer did not tend to prejudice the plaintiff, but the contrary; for he was seeking to prove that he had not taken the stock personally as security for his indorsement, and the fact that the stock was inadequate security to him went rather to show that he was not looking for security for his personal liability. Besides, the question was put on cross-examination, and was proper as showing the character of the stock, in view of the evidence the plaintiff had given on his direct examination as to the transaction respecting the stock.

•226

The defendant was allowed, under objection, to put in evidence, from the book of minutes of the board of directors of the company, the proceedings of the board at four meetings held between the time of the original transaction in regard to the stock and the date of the note on which the judgment was recovered, that note being a renewal of prior notes. These proceedings were in the handwriting of the defendant, who was the secretary of the company, and the plaintiff, who was a director of the company, was present at all of the meetings in question. The proceedings contained nothing which appeared to relate to this controversy, but referred only to the purchase of property by the company, and to the mode of paying for stock, and the powers of the secretary, and sundry minor matters. The objection made at the time to the introduction of these minutes was that they were irrelevant, incompetent, and immaterial, and tended to confuse in the minds of the jury the true issue to be tried, and could not throw any light upon the question on trial. The same objection was made to the putting in evidence of the proceedings of a meeting of the stockholders of the company, at which the plaintiff was present, held prior to the date of the note on which the judgment was recovered, and of the proceedings of nine meetings of the board of dl-• rectors, and one meeting of the stockholders, held after that date, at all of which the plaintiff was present. These proceedings contained nothing which appeared to relate to this controversy, but they showed the pecuniary embarrassment of the company, and the execution by it of a deed of trust to se cure its indebtedness, and the final sale of its property. The only matter in all these proceedings which could possibly have operated to the prejudice of the plaintiff was the fact that the stock had become worthless, it being argued that the jury might have been induced thereby to relieve the defendant from paying any more on account of the worthless stock after he had paid the $3,000 to the company and the one-half of the judgment to O'Reilly. But we think it sufficiently appears from other testimony that the stock became worthless.

Aside from this, we do not see anything in the proceedings objected to which could possibly have harmed the plaintiff more than the defendant, or have benefited the defendant to the prejudice of the plaintiff. To show that the stock was worthless showed that neither party could derive any advantage from it, and left the case between the plaintiff and the defendant, to be decided without reference to any value in the stock. No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made. Deery v. Cray, 5 Wall. 795, 803; Gregg v. Moss, 14 Wall. 564, 569; Lucas v. Brooks, 18 Wall. 436, 454; Allis v. Insurance Co., 97 U. S. 144, 145; Cannon

v. Pratt, 99 U. S. 619, 623; Mining Co. v. Taylor, 100 U. S. 37, 42; Hornbuckle v. Stafford, 111 U. S. 389, 394; S. C. 4 Sup. Ct. Rep. 515. Judgment affirmed.

(115 U. S. 260)

CLAY and Wife . FIELD.

Filed November 2, 1885.

1. EXECUTORS AND ADMINISTRATORS - ACTION BY HEIR TO RECOVER LAND BID OFF BY CREDITOR AT VOID ADMINISTRATOR'S SALE-CODE MISS. 1871, 2173.

The Mississippi Code of 1871, 2 2173, by which any action to recover property because of the invalidity of an administrator's sale by order of a probate court must be brought within one year, "if such sale shall have been made in good faith, and the purchase money paid," does not apply to an action brought by the heir to recover fand bid off by a creditor at such a sale for the payment of his debt, and conveyed to him by the administrator, and not otherwise paid for than by giving the administrator a receipt for the amount of the bid.

2. TENANTS IN COMMON-EJECTMENT-OUSTER-CODE MISS. 1880, ?? 2506, 2512.

Under the Mississippi Code of 1880, 22 2506, 2512, a tenant in common who has been ousted by his co-tenant may maintain ejectment against him, and recover rents and profits in the same action

In Error to the District Court of the United States for the Northern District of Mississippi.

W. L. Nugent, for plaintiff in error. Frank Johnston and J. E. McKeighan, for defendant in error.

GRAY, J. This was an action of ejectment brought November 27, 1880, to recover possession of an undivided half of a tract of land, and the rents and profits thereof. Both parties claimed title under David I. Field, who died in 1869. At the time of his death he and his brother, Christopher J. Field, owned in fee-simple and occupied the land as tenants in common, and were partners in the business of planting thereon. The plaintiff, who came of age within a year before bringing the action, was the only son and heir at law of David I. Field. The defendants were in possession, and claimed title under a sale and conveyance made by his administrator to the female defendant on December 20, 1869, by virtue of an order passed by the probate court on April 13, 1869, upon a petition filed by the administrator for the sale of the land to pay a debt due from the partnership to Christopher J. Field, and by him probated in the usual form. The judgment below was for the plaintiff, and the defendants sued out this writ of error. As appears by a uniform series of decisions of the supreme court of Mississippi, and is not denied by the defendants, that sale was invalid as against the heir, because the administrator never gave bond to account for the proceeds of the sale, as required by the statutes of the state. Currie v. Stewart, 26 Miss. 646, and 27 Miss. 52; Washington v. McCaughan, 34 Miss. 304; Heth v. Wilson, 55 Miss. 587.

The other objections urged by the plaintiff against the validity of the sale need not therefore be considered, and the case turns on the effect of section 2173 of the Code of Mississippi of 1871, which is in these words: "No action shall be brought to recover any property heretofore sold by any administrator, executor, or guardian, by virtue of the order of any probate court in this state, on the ground of the invalidity of such sale, unless such action be commenced within one year after this chapter shall take effect, if such sale shall have been made in good faith and the purchase money paid; nor shall any action be brought to recover land or other property hereafter sold by order of a chancery court, where the sale is in good faith, and the purchase money paid, unless brought within one year after such sale." This is a remedial statute, the object of which is to shorten litigation over the estates of deceased persons, and to quiet the titles of those who have in good faith paid the purchase money for lands sold under defective and invalid proceedings in the probate court; and the courts of the state have given it full

192.

effect, according to its terms, even against heirs who are infants, or under other disability. Morgan v. Hazlehurst Lodge, 53 Miss. 665; Hall v. Wells, 54 Miss. 289; Summers v. Brady, 56 Miss. 10. But it protects no one who is not proved to have purchased the land in good faith and to have actually paid the purchase money.

In the case at bar, Mrs. Clay (the daughter and sole heir of the brother and partner of the intestate, who had probated against the estate a debt due to him from the partnership) bid off the land at the administrator's sale and re ceived a deed thereof from the administrator. But the court before which the case was tried (a jury having been waived in writing by the parties) has expressly found that ". no money was ever paid on the bid," and "no credit was ever entered upon the probated indebtedness." It is, indeed, found that "a receipt was given to the administrator for the amount" of the bid; and although by whom that receipt was given does not appear, it may be presumed to have been given by some one authorized to represent her father's estate and herself. But a mere receipt, acknowledging payment of money, is not conclusive evidence against the person giving it. It is not shown that any release of the probated debt was ever executed, or that the administrator ever accounted in the probate court for the amount of the bid. Mrs. Clay could not have been compelled to pay the amount; and, if she bought without notice of the invalidity of the sale, could have had the sale set aside in equity. Miller v. Palmer, 55 Miss. 323. In short, no act appears to have been done by herself, by the administrator, or by the probate court, which, on the one hand, changed her condition, or estopped her, or any representative of her father, to deny that the debt probated by him had been paid or discharged, or to assert any right which existed before the sale; or, on the other hand, estopped the administrator to deny that the purchase money for the land had been paid to him. Under such circumstances, to hold that the purchase money is proved to have been paid would be to disregard both the words and the intent of the statute.

The case of Summers v. Brady, above cited, on which the defendants relied, is quite distinguishable. The facts of that case, as assumed in the opinion, and more fully brought out in Sivley v. Summers, 57 Miss. 712, were as follows: The land was sold by order of the probate court for the payment of several debts probated by Sivley, the administrator, by one Drone, and by various other persons, and was bought by and conveyed to Drone in his own name, but in fact for himself and Sivley jointly. Drone immediately conveyed twothirds of the land to Sivley, and the two afterwards conveyed the whole to a third person, under whom the defendants claimed title. The administrator settled his final account, charging himself with the whole of the purchase money as in his hands. The court ordered that money to be divided pro rata on all the probated debts, and all the creditors but Drone and Sivley were actually paid their dividends out of it. Drone and Sivley were estopped to deny that their debts had been extinguished by the sale and conveyance of the land to them, because they had not only taken possession of the land, but had conveyed it away. And Sivley, as administrator, was estopped to deny that he had been paid the whole purchase money upon the original sale because he had charged himself with it in his final account allowed by the probate court. In the other case cited for the defendants, of Callicott v. Parks, 58 Miss. 528, the report does not show that any question of the mode of payment was presented or considered.

The title in the land being in the plaintiff and Mrs. Clay as tenants in common, each owning an undivided half, and she having ousted him, and claiming title to and holding possession of the whole land, he has the right, under the Mississippi Code of 1880, § 2506, as at common law, to maintain ejectment against her, as well as to sue her for a share of the rents and profits. Co. Litt. 1996; Goodtitle v. Tombs, 3 Wils. 118; Corbin v. Cannon, 31 Miss.

570; Letchford v. Cary, 52 Miss. 791. And by section 2512 of that Code mesne profits, for which any defendant in ejectment is liable, may be sued for and recovered either in the action of ejectment, or by a subsequent separate action. Judgment affirmed.

(115 U. S. 285)

MOSES and others v. WOOSTER.

Filed November 2, 1885.

APPEAL-DEATH OF ONE APPELLANT-SUIT PROCEEDING IN BEHALF OF OTHERS.

On an appeal from a final decree for an injunction and damages in a suit for infringement of a patent by a partnership, when one of the partners has died the survivors may, after notice to his legal representatives to appear, and their failure to so appear, move that the action abate as to the deceased, and proceed at their suit as survivors.

On Motion.

W. F. Mattingly, for appellants. J. E. Hyndon Hyde, for appellee.

* WAITE, C. J. The suit below was in equity and brought by George H. Wooster, the appellee, against Solomon Moses, Gotcho Blum, and Solomon Weil, partners under the name of Moses, Blum & Weil, for an infringement of letters patent. A final decree for an injunction and damages was rendered against the defendants, May 23, 1883. From this decree all the defendants appealed, and the appeal was docketed here October 12, 1883. Blum died January 2, 1884. On the eleventh of April, 1885, Wooster appeared in this court and suggested his death; whereupon the usual order under rule 15, § 1, was entered, that unless his representatives should become parties within the first 10 days of this term, the appeal would be dismissed. Proof of the due publication of a copy of this order has been made, but the representatives of the deceased appellant have not appeared. The surviving appellants now move that the action abate as to the decedent, but that it proceed at their suit as survivors. The judiciary act of 1789, (1 St. 90, c. 20, § 31,) provided that "if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs against the surviving defendant or defendants." This was reenacted in the Revised Statutes as section 956, and is substantially a copy of the act of 8 and 9 Wm. III., c. 11, § 7, which it was held in Clarke v. Rippon, 1 Barn. & Ald. 587, was applicable to writs of error. Lord ELLENBOROUGH, in giving that judgment, said: "The proceeding is an action which is commenced by a writ, and the cause of action is the damage sustained by the parties from the error in the previous judgment, and this damage equally attaches on the survivor in this as in any other action." This court gave the same effect to our statute in McKinney v. Carroll, 12 Pet. 66.

Appeals to this court from the circuit and district courts are "subject to the same rules, regulations, and restrictions as are or may be prescribed by law in cases of writs of error." Rev. St. § 1012. The cause of action in this appeal, that is to say, "the damage sustained by the parties in the previous decree," attaches to the surviving appellants. All the defendants were enjoined from infringing the patented machine, and all were made liable for the payment of the damages which the patentee had sustained by their joint acts as partners. Clearly, therefore, the case is within the statute, and may be proceeded with accordingly. The cause of action is one that survives to the surviving appellants. Undoubtedly cases may arise in which the presence of the representatives of a deceased appellant will be required for the*due prosecution of an appeal, notwithstanding the survivorship of others. If that should be so, the court can, with propriety, direct that the appeal be dismissed,

unless it be properly revived within a limited time. The house of lords made such an order in Blake v. Bugle, a note of which is found in Macqueen's Pr. H. L. 244. Here, however, there is no need of a revivor that substantial justice may be done. The decree below was against all the defendants jointly, upon a joint cause of action. It affected all alike, and the interest of the decedent is in no way separate or distinct from the others. If the representatives of a deceased appellant voluntarily come in and ask to be made parties, they may be admitted. Such a course was adopted by the house of lords in Thorpe v. Mattingley, 1 Phil. 200. In the present case the representatives of the decedent, although notified, do not appear. It is proper, therefore, that the appeal should proceed under the statute at the suit of the survivors, and an entry to that effect may be made.

(115 U. S. 288)

JACKS v. CITY OF HELENA. (Two Cases.)

Filed November 9, 1885.

SUPREME COURT JURISDICTION-FEDERAL QUESTION.

When the decision of the supreme court of the state sought to be reversed was properly put on a ground which did not involve a consideration of the federal question that might possibly have been presented by one of the several defenses set up in the answer, the supreme court has no jurisdiction on the ground that the case involves a federal question.

In Error to the Supreme Court of the State of Arkansas. On motion to dismiss.

M. T. Sanders, for the motion. J. C. Tappan and I. J. Hornor, against the motion.

* WAITE, C. J. These motions are granted on the authority of Detroit City Ry. Co. v. Guthard, 114 U. S. 133; S. C. 5 Sup. Ct. Rep. 811, and the cases there cited. It appears distinctly on the face of the opinion of the court below, which by the laws of Arkansas forms part of the record, (Rev. St. Ark. 1884, § 1318,) that the decision of the case was put, and properly put, on a ground which did not involve a consideration of the federal question that may possibly have been presented by one of the several defenses set up in the answer of the city, to-wit, that the constitution of 1874 prohibited the issue of the bonds in dispute. In fact, it is intimated in the opinion that if the case had rested on this defense alone, the judgment would have been the other way. Dismissed.

(115 U. S. 290)

CITY OF WATERVILLE v. Van SLYKE.

ERROR-MOTION TO DISMISS.

Filed November 9, 1885.

To get a decision on a motion to dismiss a writ of error before printing the record, the motion papers must present the case in a way that will enable the court to act understandingly without referring to the transcript on file.

In Error to the Circuit Court of the United States for the District of KanBas. On motion to dismiss.

S. E. Brown, for the motion. E. Stellings, against the motion.

WAITE, C. J. The judgment in this case is for less than $5,000, but the record contains a certificate of division. The motion to dismiss is "on the ground that this court has no jurisdiction upon such a certificate as is filed herein." The record has not been printed, and in National Bank v. Insurance Co., 100 U. S. 43, we announced the rule that to get a decision on a motion to dismiss before printing, the motion papers must present the case in a way which will enable us to act understandingly without referring to the transcript on file. In this case we have not been furnished either with a