The specification of the powers and duties of these officers extends over several pages of the statute. It may be said, in brief, that they are charged with the management of the internal affairs of the county, and occupy substantially the place held by Boards of Supervisors in many of the States.

The Constitution of the State of South Carolina (of 1868) does not declare the several counties of the State to be incorporations. In art. II., sec. 3, entitled "Legislative Depart ment," it is ordained as follows:

"The judicial districts shall hereafter be designated as counties, and the boundaries of the several counties shall remain as they are established, except, etc. * * * Each county shall constitute one election district."

By art. IX., sec. 8, it is provided:

66

The corporate authorities of counties, townships, school districts, cities, towns and villages may be invested with power to collect taxes for corporate purposes. * * *

"Sec. 9. The General Assembly shall provide for the incorporation of cities and towns, and shall restrict their powers of taxation, borrow ing money, contracting debts, and loaning their credit."

It is assumed by these provisions that counties are or may be made corporations.

Accordingly, it was enacted by the Legisla ture in the same year (Stat. S. C. 1868, 134), as follows:

"Each county shall be a body politic and corporate for the following purposes: to sue and be sued, purchase and hold for the use of the county personal estate and land lying within its own limits, and to make necessary contracts and do necessary acts in relation to the property and concerns of the county."

Every county of the State was expressly authorized by the Statute of September 18, 1868, to make the contract out of which the present cause of action arose, and the pleadings concede that the County of Pickens did make it. We do not find in the Constitution or statutes of South Carolina any direction as to the name by which a county shall be sued. We see no objection to the form adopted in the present case.

But if it be conceded that this action should have been brought against the County of Pickens, by the corporate name of the County of Pickens, the error is simply one of a misdescription of the parties defendant, a misnomer amendable at the trial if objected to, and to be disregarded, both at the trial and on appeal, when such objection is not taken.

The Revised Statutes of South Carolina provide (sec. 199) that "The court shall in every stage of the action disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed by reason of such error or defect."

By another section (196) it is provided that "The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other re

to the case, or when the amendment does not change substantially the claim or defense, by conforming the pleadings or proceedings to the facts proved."

Where suit was brought against "William H. Cockle, Intendant, and John R. Schwab, Joseph Herndon, Robert Wright and Edward Wheeler, Wardens, the Town Council of Yorkville, in the State of South Carolina," it was objected at the hearing on appeal that the suit was against the parties in their individual capacity, and not as the Town Council of Yorkville. The Supreme Court said: "The defendants have failed to present the objection at the proper time and in the proper way, and can now claim no benefit from it.' MS. case.

The Statutes of the State of New York on the subject of amendments are almost verbatim, the same as those of South Carolina above quoted.

In the case of the Bk. v. Magee, 20 N. Y., 355, Charles Cook was an individual banker, transacting business under the name of the Bank of Havana, there being, in fact, no corporation of that name. On the trial, a judgment in favor of the Bank of Havana was offered in evidence, which was objected to on the ground that the plaintiff had not proved itself to be a corporation, which was overruled. In sustaining the ruling, the Court of Appeals, by Denio, Judge, said: 'But I am of the opinion that when it appeared on the trial that the plaintiff's attorney had fallen into the mistake of stating the name which Mr. Cook had given to his bank as the creditor of Wickham and as the plaintiff in the suit, instead of his own name, a plain case was presented for amendment, under the 173d section of the Code." The error was disregarded.

So in Traver v. R. R. Co., 6 Abb. Pr. (N. S.), 46, the Court of Appeals, Grover, J., delivering the opinion, cited the foregoing case with approval, and held that where an action was brought by a married woman in her maiden name it was a mere misnomer, and when not objected to at the trial would be disregarded on appeal.

There is no error of which we can take notice, and the judgment must be affirmed.

THEODORE A. KENDIG, Appt.,

v.

THOMPSON DEAN. (See S. C., 7 Otto, 423-426.)

Dismissal on the merits.

Where a bill is dismissed for the want of parties, the dismissal should not be on the merits, but should be without prejudice. A decree dismissing the bill on the merits, under such circumstances, will be reversed for that reason. [No. 60.]

Argued Nov. 5, 6, 1878. Decided Nov. 25, 1878.

APPEAL from the Circuit Court of the Unit

ed States for the Western District of Ten

nessee.

The case is fully stated by the court. Messrs. P. Phillips, Henry Craft and J. R. Chalmers, for appellant.

Mr. H. T. Ellett, for appellee.

The appellant, who was complainant below, was a citizen of Tennessee where the suit was brought, and Dean, the defendant, was a citi zen of Ohio. The controversy related to one hundred and eighty four shares of the stock of the Memphis Gas-Light Company, which Company was not made a party to the suit. A demurrer to the bill was overruled; and the court, after hearing on bill, answer, exhibits and depositions, dismissed the bill on the merits.

We are of opinion that the circuit court had no jurisdiction to try the case, because the gaslight company was an indispensable party to the relief sought in the bill, or to any relief which a court of equity could give.

The substance of the bill is that plaintiff was the owner of the shares of the gas company stock, already mentioned, and that while he so owned and held the stock, and during the late civil war, the defendant "Obtained possession of the books and control of the offices of the company, and being so in possession and control, wrongfully and fraudulently procured and obtained to be made a transfer upon the books of the company to his own name as owner, and from the name of your orator, the said 184 shares of stock, and the issuance to him of a certificate of said stock, and the cancellation of the certificate of his stock belonging to and in the name of your orator." It is further alleged that this was done without purchase from, or consideration given to, plaintiff, and without any lawful authority.

The relief prayed is, "That the said capital stock may be restored to your orator, and deemed to be of his property; and that all the right and title thereto may be devested out of said Dean, and vested in your orator; and that said Dean may be compelled to cause and authorize the transfer of said stock to be made on the books of the company to your orator, and may be enjoined from making or authorizing to be made a transfer of any of the stock to any other person; and that other suitable relief may be granted to your orator." The original certificate of stock is in possession of plaintiff, as he declares in the bill, and is annexed to it as an exhibit.

It also appears that the corporation, at the time the suit was brought, had a president, a board of directors and a secretary. This suit is not brought to recover the dividends received by Dean which ought rightfully to have been paid to plaintiff. No such relief is asked, and no averment that any dividends were declared or paid to Dean on that account. Nor is it brought to recover damages for the wrongful seizure of plaintiff's property and conversion of it to defendant's use.

The relief appropriate to either of these grievances might have been sought in an action at law. It is not an action to obtain from Dean the specific certificate of stock, for that remains in plaintiff's possession.

The gravamen of the charge is that Dean, while in possession of the books and control of the offices of the company, caused a transfer to be made on the books of the company to him of the shares of its stock owned by plaintiff, and the relief asked is the restoration of the stock on the books of the company to the name

company of his rights in the stock. And the court is asked to compel Dean to do this.

Suppose that the court had rendered a decree in the exact language asked by plaintiff, and Dean should be attached for contempt in refusing to perform it. He could answer very truly that he was not the gas light company, and had no control of the books or of the of ficers of the company; that he had no means of compelling the company to make transfer of this or any other stock on its books; that it was a corporation governed by its own officers, and was not bound by the decree of the court, and would not perform it. The court would find itself in the position of having made a decree it could not enforce, of attempting to give a relief which was beyond its power, because the party whose action was necessary to that relief was not a party to the suit.

On the other hand if the gas-light company had been a party to the suit, and plaintiff had sustained the allegation of his bill by proof, the relief would have been perfect. The company could have been compelled to restore plaintiff to the ownership of the stock on their books, and to treat him in future as one of their stockholders, and the decree would have bound both Dean and the company. As it is, the specific relief sought by plaintiff is not within the power of the court, nor, is any relief within the equity jurisdiction of the court which can arise out of the frame of the bill in the absence of the gaslight company.

The rules which govern the circuit courts of the United States sitting in chancery, in cases like this, have been well defined in the cases of Shields v. Barrow, 17 How., 130 [58 U. S., XV., 158], and Barney v. Baltimore, 6 Wall., 280 [73 U. S., XVIII., 825].

In the latter case, it is said that there is a class of persons who may or may not be made parties to the suit at the discretion of plaintiff, without being noticed by the court. A second class, whom, if their interest is brought to the attention of the court, it will, before deciding the cause, require to be made parties if within its jurisdiction, but who are not so necessary to relief that their absence defeats the jurisdiction.

And there is a third class," says the court, whose interests in the subject-matter of the suit, and the relief sought, are so bound up with that of the other parties, that their legal presence as parties to the proceeding is an absolute necessity, without which the court cannot proceed. In such cases, the court refuses to enter. tain the suit when these parties cannot be subjected to its jurisdiction." The case before us comes plainly within the language here used. The gas light company is an indispensable party to the relief sought by this bill.

The circuit court, although it dismissed the bill, did so on the merits, and that decree would bar plaintiff from any other suit in which Dean's right to this stock might be contested. It should have been dismissed without prejudice, for want of a necessary party who was not brought before the court.

The decree must, therefore, be reversed and the cause remanded to the Circuit Court, with direc tions to dismiss the bill without prejudice. Such was the order of this court in the precisely similar case of Barney v. Baltimore, above

I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the court in the case of Theodore A. Kendig, Appt., v. Thompson Dean, No. 60, October Term, 1878, as the same remains upon the files and records of said Supreme Court. In testimony whereof, I hereunto subscribe my name and affix the seal of said [L.S.] Supreme Court, at the City of Washington, this 20th day of March, A. D. 1885. JAMES H. MCKENNEY, Clerk, Supreme Court, U. S. Cited-97 U. S., 456; 99 U. S., 382; 102 U. S., 563; 106 U. S., 646; 1 McCrary, 645.

HARLOW BARNEY, Piff. in Err.,

v.

J. N. DOLPH.

(See S. C., 7 Otto, 652-659.)

Sale of imperfect title to lands.

After a husband and wife had perfected their right to a patent for lands in Oregon, under the Donation Act of Sep. 27, 1850, and after the Amendment of July 17, 1854, they could, before receiving the patent, sell and convey the lands so as to cut off the rights of the children or heirs of the husband or wife, in case of his or her death before the patent was actually issued. [No. 51.]

Argued Oct. 31, Nov. 1, 1878. Decided Nov. 25,

1878.

N ERROR to the Supreme Court of Oregon. ment in the Circuit Court of Oregon, for Polk Co., and obtained a judgment, which was af firmed by the Supreme Court of the State; whereupon the defendant sued out this writ of

error.

Messrs. Geo. H. Williams and Jas. K. Kelly, for plaintiff in error.

Mr. J. H. Mitchell, for defendant in error.

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

The only question within our jurisdiction presented by this record is, whether, after a husband and wife had perfected their right to a patent for lands in Oregon, under the Donation Act of September 27, 1850, 9 Stat. at L., 496, and after the Amendment of 1854, 10 Stat. at L., 306, they could, before receiving the patent, sell and convey the lands so as to cut off the rights of the children or heirs of the husband or wife, in case of his or her death before the patent was actually issued.

This depends upon the effect to be given the original Act, when construed in connection with the amendment. The original Act, after providing for a grant to the husband and wife of six hundred and forty acres of land, one half to the husband and one half to the wife in her own right, declared that "In all cases where such married persons have complied with the provisions of this (the) Act, so as to entitle them to the grant as above provided, whether under the late Provisional Government of Oregon, or since, and either shall have died before patent

deceased shall be entitled to the share or interest of the deceased in equal proportions, except where the deceased shall otherwise dispose of it by testament, duly and properly executed according to the laws of Oregon;" and then "That all future contracts by any person or persons entitled to the benefit of this Act, for the sale of the land to which he or they may be entitled under this Act before he or they shall have received patent therefor, shall be void." The Amendment of 1854 repealed this prohibition of sales.

The point to be decided is not whether, before the amendment, such a conveyance could have been made, or whether, if the conveyance had not been made, the children or heirs of a deceased husband or wife would take by descent or purchase, or whether the grant from the United States was one which took effect from the time of the passage of the Act, or a subsequent entry and settlement; but whether, after the amendment, the husband and wife held by such a title that, before patent, but after their right to one had become absolute, they could sell and convey so as to vest in the purchaser either a legal or an equitable estate in fee simple; legal, if the title had already passed out of the United States by virtue of the Act of Congress, and a full compliance with its provisions; equitable, if the patent was needed to perfect the grant. The question is one of legislative intent, to be ascertained by examining the language which Congress has used, and applying it to the subject matter of the legislation.

The reason of the exceptional policy of the United States in respect to the public lands in Oregon is to be found in the exceptional condithe Government of the United States exerted positively its jurisdiction over them. For more than thirty years, under the operation of treaty stipulations between the two countries, 8 Stat. at L., 249 and 360, the citizens of the United States and the subjects of Great Britain had been permitted to occupy jointly the territory afterwards included in that State. They had no government except such as they had organized

For the purposes of mutual protection and to secure peace and prosperity among" themselves. The actual condition of affairs is graphically described in Lownsdale v. Portland, Deady, 11, by the able and experienced Judge of the Dis trict of Oregon, who has been connected with the administration of justice there for more than a quarter of a century; and was considered by this court in Stark v. Starr, 6 Wall., 402 [73 U. S., XVIII., 925]; Lamb v. Davenport, 18 Wall., 307 [85 U. S., XXI., 759], and Stark v. Starr [ante, 276]. As part of their plan of government, they established a "land law," by which free males over the age of eighteen years were permitted to occupy and hold six hundred and forty acres of land; and regulations were adopted for designating claims and protecting the occupants in their possession. While not denying to the United States the ownership of the soil, the occupants, to all intents and purposes, used and dealt with the lands they severally claimed as their own.

Finding this to be the condition of affairs, and recognizing the equitable claims of the inhabitants, Congress, within two years from the

time of the organization of the territorial government, passed the Donation Act, which was framed so as to conform in a large degree to the regulations of the old system, and to grant to the original settlers holding under that system the whole or a considerable portion of the lands they had been occupying and cultivating. Section 4 was evidently intended for the special benefit of this class, and, stripped of details, in effect granted to the white settlers then residing in the Territory, over eighteen years of age and citizens of the United States, or intending to become such, a half section of land if single, or a whole section if married, one half to the husband and one half to the wife, provided they had resided upon and cultivated the land or should do so for four consecutive years, and otherwise conformed to the provisions of the Act. Then follows, in this section, the pro vision which has already been cited in respect to the disposition of the property in case of the death of one of two married persons after they had complied with the provisions of the Act and become entitled to a patent, but before the patent was actually received by them. The lan guage used evidently confines this limitation in its effect to the married persons mentioned in this section.

Section 5 made provision for those coming into the Territory and settling after December 1, 1850, and above the age of twenty-one years. It granted them, if single, one hundred and sixty acres, and if married, three hundred and twenty, one half to the husband and one half to the wife, upon the same conditions of residence, cultivation and conformity to the Act specified in section 4. Other sections required the settler, within three months after the survey of the lands had been made, or, if the survey had been made when the settlement commenced, within three months after the commencement of the settlement, to notify the Surveyor-General of the precise tract he claimed, and within twelve months to prove to the satisfaction of the same officer that the settlement and cultivation required by the Act had been commenced, specifying the time of the commencement. At any time after the expiration of four years from the date of the settlement, whether made under the laws of the late Provisional Government or not, the settler might prove to the Surveyor-General | the fact of the continued residence and cultivation required; and that being done, it became the duty of the Surveyor-General to issue certificates, setting forth the facts of the case and specifying the land to which the parties were entitled, and to return the proofs taken to the Commissioner of the General Land-Office, when, if no valid objections were found, patents were to issue according to the certificate, upon the surrender thereof.

Section 8 provided that, upon the death of any settler before the expiration of the required four years' continued possession, all his rights should descend to his heirs, including the widow, where one was left, in equal parts, and that proof of compliance with the conditions of the Act up to the time of the death should be sufficient to entitle them to a patent.

The prohibition of sales, although contained in section 4, applied to all persons entitled to the benefit of the Act, and its repeal was, under the circumstances, equivalent to an express

grant of power to sell. The prohibition was of the sale, before patent, of the land to which the settler was entitled under the Act. The repeal, therefore, operated under the circumstances the same as a grant of power to sell the land even though a patent had not issued. This, in the absence of anything to the contrary, implied the power to convey all the government had parted with.

When the right to a patent once became vested in a settler under the law, it was equivalent, so far as the government was concerned, to a patent actually issued. We so decided in Stark v. Starrs [supra]. The execution and delivery of the patent after the right to it is complete are the mere ministerial acts of the officer charged with that duty. An authorized sale by a settler, therefore, after his right to a patent had been fully secured, was, as to the government, a transfer of the ownership of the land.

We are thus brought to the consideration of the question, whether such a sale by married persons, entitled to the benefit of the 4th section of the Act, would transfer to the purchaser the interest of the children, heirs or devisees of a husband or wife, who died after the sale, but before the patent was actually received. This depends upon whether the repeal of the prohibition of sales was, in effect, the repeal of the provision in respect to the child, heir or devisee, in cases where sales were made.

Repeals by implication are not favored; but if there is a positive and irreconcilable repugnancy between the old law and the new, the new must stand and the old fall, even though the result is reached by implication alone. After all, the question is one of legislative intent, to be ascertained by an examination of both statutes, the rule being that the two are to stand, unless the contrary is manifested beyond a doubt.

As has been seen, the limitation is confined to such married persons as took under the 4th section of the Act, where provision is made for those who, in the language of Judge Deady Lownsdale v. Portland [Deady 11], "Had built towns, opened and improved farms, established churches and schools, and laid out highways," and who, when the United States assumed exclusive governmental control of the Territory, were found "engaged in agriculture, trade, commerce and the mechanical arts." These, it may fairly be presumed, were special objects of the bounty of the government. The prohibition of sales was undoubtedly intended to protect the United States to some extent against fraudulent claims, and at the same time to place an obstacle in the way of an improvident disposition of their property by the settlers, under the influence of the new order of things; but at all times the husband or wife taking under section 4 could cut off a child or heir by will. The prohibition was in respect to sales, and the power to devise was expressly given this class of beneficiaries. It is clear, therefore, that the limitstion was not intended altogether for the benefit of children or heirs.

The delay which necessarily attended the delivery of the patents, after settlers had become entitled to them under the law, oftentimes operated with great hardship upon those whom Congress intended to assist. In view of this, after the expiration of nearly four years from its enactment, when the government needed no