Where interest is allowed and the principal sums with the interest added exceeds the jurisdictional limit, this court has jurisdiction.

The Rio Grande v. Otis, 86 U. S. 19 Wall. 178 (22: 60); Bank of U. S. v. Daniel, 37 U. S. 12 Pet. 32 (9:989); The Patapsco v. Boyce, 79 U.S. 12 Wall. 451 (20:457).

And especially this is so where the interest is specifically claimed in the complaint.

Olney v. The Falcon, 58 U. S. 17 How. 19 (15:43).

Appeal is proper for review.

Stringfellow v. Cain, 99 U. S. 612 (25: 422); Hecht v. Boughton, 105 U. S. 235, 236 (26:1018); Woolf v. Hamilton, 108 U. S. 15 (27: 635).

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

A judgment was rendered September 28, 1885, by the District Court of Arizona, in and for the County of Pima, against L. Zeckendorf & Co., the appellants, and in favor of Johnson, the appellee, for $4,304.93, "with interest on $2,800 of said sum, at the rate of two per cent per month from the date hereof until paid, and interest on $1,504.33, at the rate of ten per cent per annum from the date hereof until paid." This judgment was affirmed by the Supreme Court of the Territory on appeal, November 8, 1886. From that judgment of affirmance this appeal was taken, which the appellee moves to dismiss, on the ground that the value of the matter in dispute does not exceed $5,000, as now required by law. Act of March 3, 1885, chap. 355, 23 Stat. at L. 443.

The value of the matter in dispute is to be determined by the amount due at the time of the judgment brought here for review, to wit, the judgment of the supreme court of the Territory, and not at the time of the judgment of the district court. Adding the interest to the judgment of the district court until the date of that of the supreme court, as we must for the purpose of determining our jurisdictionThe Patapsco v. Boyce, 79 U. S. 12 Wall. 451 [20:457]; N. Y. Elevated R. R. Co. v. Fifth Nat. Bank, 118 U. S. 608 [30:259]-we find that the amount due at the time of the judgment of the supreme court was considerably more than $5,000. The motion to dismiss is therefore de

nied.

But, on looking into the record, we discover that the errors assigned relate only to the sufficiency of the evidence to support the findings. These we cannot consider. The findings of fact by the court below are conclusive, and cannot be re-examined here. The Abbotsford, 98 U. S. 440 [25: 168], and cases there cited. Upon the facts. as found there can be no doubt of the correctness of the judgment. It is apparent if the case is kept here longer it will be for delay only. For that reason the motion to affirm is granted. Affirmed.

-repeal of law.

1.. This court cannot review, on appeal or writ of error, the order of a circuit court remanding a suit made while the Act of March 3, 1875, chap. 137, 18 Stat. at L. 470, was in force, where the writ of error was not brought until after the Act of March 3, 1887, went into effect.

2. If a law conferring jurisdiction is repealed, without a reservation as to pending cases, all such cases fall with the law.

[No. 932.]

Submitted Nov. 21, 1887. Decided Dec. 12, 1887.

IN ERROR to the Circuit Court of the United

States for the Southern District of New York. Dismissed.

The case is stated by the court.

Mr. Roger M. Sherman, plaintiff in error, in person:

It could not judicially appear, before any obligation rested on the defendant to present the record, that the suit did not really and substantially involve a dispute or controversy properly within the jurisdiction of the circuit court.

U. S. R. Š. § 645; Act March 3,1875, § 5, 6, 18 Stat. at L. 472; Bradstreet v. Thomas, 37 U. S. 12 Pet. 177 (9:1046); Gold W. & W. Co. v. Keyes, 96 U. S. 204 (24:659).

The withholding of the complaint cannot inure to the advantage of the plaintiffs below.

Act of 1875, 7; Dennistoun v. Draper, 5 Blatchf. 336; Fisk v. Union Pac. R. R. Co. 6 Blatchf. 381; S C. 8 Blatchf. 246; McBratney v. Usher, 1 Dill. 367.

The determination, in the absence of the complaint, would have been error for which this court would reverse.

U. S. v. Kirkpatrick, 22 U. S. 9 Wheat. 729 (6:201); Garland v. Davis, 45 U. S. 4 How. 131 (11: 907); Mandeville v. Burt, 33 U. S. 8 Pet. 256 (8:936).

An essential ingredient in the cause of action is the legal title of the plaintiffs. Public moneys cannot come to hand so as to be subject to a mere equitable title to the use of the principal.

2 Story, Eq. Jur. SS 1042, 1045; U. S. R. S. § 3477.

It is presumable that such an award could occur only upon some mistake of fact.

Daniels v. Tearney, 102 U. S. 421 (26:189). The money has been paid from the treasury contrary to law.

U. S. Const. § 9: Reeside v. Walker, 52 U. S. 11 How. 291 (13:701); Whiteside v. U. S. 93 U. S. 247 (23: 882); Knote v. U. 8. 95 U. S. 154 (24:443); Steele v. U. S. 113 U. S. 134 (28: 954); Coppell v. Hall, 74 U. S. 7 Wall. 558 (19: 248); U. S. v. Grossmayer, 76 U. S. 9 Wall. 75 (19: 629).

No estoppel could operate in favor of plaint

iffs.

Holman v. Johnson, 1 Cowp. 343; Nellis v. Clark, 20 Wend. 24; Armstrong v. Toler, 24 U. S. 11 Wheat. 258 (6:468); Coppell v. Hall, supra; Colvin v. Holbrook, 2 N. Y. 129; Cox v. Prentice, 3 Maule & S. 345; Buller v. Harrison, 2 Cowp. 566; Smith, Merc. Law, 8th Eng. ed. 162, 163.

Such cause of action involves a federal question.

The Siren, 74 U. S. 7 Wall. 154 (19:130); Carr v. U. S. 98 U. S. 438 (25:211); U. S. v. Peters, 9 U. S. 5 Cranch, 115 (3:53).

Messrs. Wm. M. Evarts, Joseph H. Choate & Char es Beaman and Treadwell Cleveland, lor defendants in error.

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

This is a writ of error brought for the review of an order of a circuit court remanding a suit which had been removed from a state court. The suit was begun October 28, 1885; removed October 30, 1885, the state court making an order to that effect on that day; and remanded by the circuit court, May 4, 1886. All this was before the Act of March 3, 1887, chap. 373, 24 Stat. at L. 552, went into effect. The writ of error from this court was not sued out, how

ever, until April 8, 1887, which was after that

statute.

The first question which presents itself is whether we have jurisdiction of the writ. We have already decided, at the present term, in Morey v. Lockhart, 123 U. S. 56 [ante, 68] that this court cannot review, on appeal or writ of error, the order of a circuit court remanding a suit which had been removed under the Act of 1887, and which was begun, removed, and remanded after that Act went into effect. Later in the term we decided ( Wilkinson v. Nebraska, 123 U. S. 286, ante, 152) that we had no jurisdiction when the suit was begun and removed before the [680] Act of 1887, but not remanded until afterwards. In the last case we said that this statute showed "unmistakably an intention on the part of Congress to take away all appeals and writs of error to this court from orders thereafter made by circuit courts remanding suits which had been removed from a state court, and this whether the suit was begun and the removal had before or after the Act of 1887." That was as far as it was necessary to go in any suit that had come before us down to that time. Here, however, the question reaches one step further, and requires us to determine whether we can take jurisdiction on appeal or writ of error if the order to remand was made whilst the Act of March 3, 1875 (chap. 137, 18 Stat. at L. 470), was in force; but the writ of error was not brought until after that of March 3, 1887, went into effect, and we are of opinion that we cannot. This is the logical result of what has already been decided. Until the Act of 1875 there was no such jurisdiction. Chicago & A. R. R. Co. v. Wiswall, 90 U. S. 23 Wall. 507 [23:103]. The provision of that Act giving the jurisdic tion was repealed by the Act of 1887 without any reservation as to pending cases, the proviso in the repealing section having reference "only to the jurisdiction of the circuit court and the disposition of the suit on its merits." Wilkinson v. Nebraska, ubi supra. As a consequence of this the repeal operated to take away jurisdiction in cases where the order to remand had been made, but no appeal or writ of error taken, because "If a law conferring jurisdiction is repealed without a reservation as to pending cases, all such cases fall with the law." Baltimore & P. R. R. Co. v. Grant, 98 U. S. 898, 401 [25: 231, 232] and cases there cited.

It follows that we have no jurisdiction of this writ of error, and it is accordingly dismissed.

HENRY R. BOND, Appt.,

v.

SARAH G. DAVENPORT.

(See 8. C. Reporter's ed. 619-622.)

Decree reversed on stipulation.

Decree reversed in accordance with the stipulation of the parties, and the cause remanded with instructions to enter a decree in favor of the complainant, as agreed by the parties to the appeal, but without prejudice to the rights of the other parties to the suit. [No. 145.] Submitted Dec. 8, 1887. Decided Dec. 12, 1887.

APPEAL from the Circuit Court of the

United States for the Southern District of Iowa. Reversed.

The facts are stated by the court. Messrs. Jayne & Hoffman and W. F. Brannan, for appellant.

No one appeared for appellee.

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

This is an appeal by the complainant below from the following part of the decree in the

cause:

77

"It is further ordered, adjudged, and decreed that the said respondent, Sarah G. Davenport, pay to the complainant the sum of five hundred and sixteen and dollars, with interest at the rate of six per cent per annum from the 10th day of May, 1883, the same being the amount, with interest, which the undivided half of the south half of block fiftynine (59) which descended to, and has become vested in, the said Sarah G. Davenport as the mother and an heir at law of the said George A. Davenport, deceased, is chargeable for and on account of taxes on said block fifty-nine (59), which were paid and discharged out of the money advanced by the said Equitable Trust Company on the 28th of June, 1875; and that on failure to pay the said sum within the time herein limited the said master sell, at public sale, so much of the said Sarah G. Davenport's undivided half of the south half of said block fifty-nine (59) as shall be necessary to pay the

same.

"Such sale to be made at the same place and in the same manner, and in all respects as is herein prescribed for the sale of the property of the said George A. Davenport, and with like effect. It is further ordered, adjudged, and decreed that upon payment by the said Sarah G. Davenport of the said sum of five hundred and sixteen and dollars to the said complainant, complainant's bill be dismissed as to the undivided one-half of the south half of said block fifty-nine (59), which vested in, and to which the said Sarah G. has become entitled, as the mother and heir-at-law of the said George A. Davenport, deceased. And it is further ordered, adjudged, and decreed that, as between the complainant and the said Sarah G. Davenport, the said Sarah G. Davenport recover of complainant the costs of this suit, so far as made, in trying the issue of the sanity of said George A. Davenport at the time of the making and delivery of said mortgage set up in complainant's original bill.”

279

The only parties to the suit who are before this court are Henry R. Bond, trustee, com plainant below and appellant, and Sarah G. Davenport. These parties have filed in this court the following stipulation:

"In the Supreme Court of the United States. "Henry R. Bond, Trustee, Appellant,

D.

Sarah G. Davenport, Appellee. "Appeal from the Circuit Court of the United States for the Southern District of Iowa. "In the beforementioned suit it is stipulated by and between Henry R. Bond, trustee, complainant and appellant, The Equitable Trust Company of New London, Connecticut, the holder of the bonds secured by the mortgage sought to be enforced, and Sarah G. Davenport, appellee, being the sole parties in interest, as follows, to wit:

"1. Said Sarah G. Davenport hereby withdraws the answer and cross petition filed by 21] her in said suit, and all evidence offered and introduced by her in said circuit court, and consents and agrees that the same shall not be considered as part of the record.

"2. It is agreed that a decree shall be entered by the supreme court in said suit, reversing the decision and decree of the said circuit court, in so far as said court found in favor of said Sarah G. Davenport, and in so far as said court by its decree denied to complainant the relief by him prayed, as against the undivided half of the south half of block fifty-nine (59), in the City of Davenport, Iowa, claimed by Sarah G. Davenport, as mother and heir at law of George A. Davenport, deceased, and in so far as said court, by its said decree, undertook to dismiss complainant's bill as against said property, and tax certain costs to complainant, and that this cause be remanded to said circuit court, with instructions to enter a decree in complainant's favor, declaring the sums owing upon said bonds, secured by said mortgage, to be a lien upon the premises in said mortgage, described as of the date of said mortgage, and directing sale of sufficient of said premises to pay the same, and further directing that the receiver heretofore appointed in said cause shall turn over to the complainant all the funds in his bands arising from the rentals of said premises, the same to be credited upon the amount found to be owing upon said bonds secured by said mortgage before sale of said premises, and further directing that the complainant be permitted to further plead and bring in new parties if so advised.

"3. The complainant and appellant is ex

"November 16, 1887.

"HENRY R. BOND, Trustee,

"By JAYNE & HOFFMAN, Attorneys.
"SARAH G. DAVENPORT. [Seal.]

"THE EQUITABLE TRUST COMPANY,
"By JAYNE & HOFFMAN, Attorneys.
"W. F. BRANNAN,

"Of Counsel for Complainant.
"GEORGE E. HUBBELL,

"Attorney for Sarah G. Davenport." The appellant now moves that the foregoing part of the decree, from which the appeal was taken, be reversed in accordance with the stipulation of the parties, and that the cause be remanded with instructions to enter a decree in favor of the complainant as agreed.

This motion is granted and the decree reversed without costs; and the cause is remanded with instructions to proceed in accordance with the foregoing stipulation of the parties to this ap peal, but without prejudice to the rights of the other parties to the suit.

BENJAMIN J. WILSON, Appt.,

v.

WILLIAM C. RIDDLE, Trustee, ET AL.

(See S. C. Reporter's ed. 603-617.)

Issues in equity case-trial of them by juryexceptions-voluntary settlement by husband.

1. On the trial of an equity case, a jury may be the court; a previous order for the trial of the called into the court, and issues submitted to it by issues by jury is unnecessary.

2. The question as to what issues should be submitted to the jury is one for the discretion of the

court.

3. Where the chancellor adopted the findings of the jury as being satisfactory to him upon the whole testimony in the case, it is not the practice of an appellate court to consider formal exceptions to rulings in the course of the trial of the issues before the jury.

4. In Georgia, a voluntary settlement may be made by one for the benefit of his wife and children, provided it is recorded in the office of the clerk of the superior court of the county of the residence of the husband, within three months against a subsequent mortgagee who had notice of after its execution; and such conveyance is valid it before the mortgage to him was executed. [No. 86.]

Argued Nov. 30 and Dec. 1, 1887. Decided Dec. 12, 1887.

save and except such portions thereof as to him shall seem material to enable the court to dispose of said suit under this stipulation.

"4. The attorney or solicitor who has entered his appearance in this suit is authorized to consent to such demand or requirement of the complainant, or the said court, as shall enable the complainant to have the said decree of the circuit court reversed, said cause remanded, and a final decree entered in the circuit court in complainant's favor, and for that purpose is hereby authorized to appear in said circuit court to any pleading filed by the complainant.

States for the Southern District of Georgia.

place, and the other of 500 acres, known as the Brown place, to be held for ever free from the debts, liabilities, and contracts of Riddle and all other persons. The trust deed was duly recorded, on the 26th of May, 1853, in the office of the clerk of the Superior Court of the County of Washington. Riddle, after the conveyance, held the lands as trustee for his wife and children only, and under the terms of the trust deed. In 1866 Riddle was engaged in planting operations, and, in order to raise money, applied to the firm of Wilkinson & Wilson, doing business in Savannah, of which the defendant was a member. That firm, in consideration of consignments of cotton to be sent to them by Riddle, advanced to him, on his own account and not for the trust estate, large sums of money. The defendant was obliged to raise the money so supplied on the credit of his firm, and to furnish to parties advancing the money to his firm, planters' notes and mortgages and other collateral security. On his request, Riddle gave a mortgage lien, for a large amount, upon lands owned by him in his own right, and in that mortgage included the lands embraced in the trust deed. Riddle, at the time he created such mortgage lien, notified the defendant that part of the lands was trust property; but the defendant replied that it did not matter, as he only wished to use the lien as collateral. The defendant took the lien with full notice that it included the trust estate, as well as the individual property of Riddle. In 1870, the first mortgage was canceled and a new 611] mortgage lien was given to the defendant, at his request, which lien was taken by him with full notice that the trust estate was included in the lien. The defendant, with such knowledge, caused the lien to be foreclosed, and, in 1877, bid in all the lands covered by it, including the trust estate, and caused a deed of the lands to be made to him by the sheriff of the county, and took possession of the trust estate with full notice of the rights of the plaintiffs. An answer on oath is waived, and the prayer of the bill is for a decree for the restoration to the plaintiffs of the trust lands and the recovery of the mesne profits; that the defendant be adjudged to hold the lands only as trustee for the plaintiffs, and be required to convey them to Riddle, or some other person, as trustee, on the uses and trusts contained in the deed; that the mortgage lien and the deed to the defendant under the foreclosure be declared null and void as to the trust estate, and reformed or canceled, 80 as to remove the cloud upon the title of the plaintiffs; and for general relief.

The answer of the defendant to the bill, filed in February, 1883, raises an issue as to the making and recording of the deed of trust. It avers that, after the date of the deed, Riddle continued in possession of the land as before, claiming and using it, and paying taxes on it as owner, in his individual capacity and not as trustee. It admits that the firm of Wilkinson & Wilson furnished money and plantation supplies to Riddle, from 1866 to 1870, on consignments by him of cotton to that firm. It avers that, at the close of the transactions, Riddle owed the firm over $80,000; that he gave no notice of any trust; that he gave a mortgage, as security for such indebtedness, covering his entire plantation and embracing the lands in

controversy, with others; that he did not, beforu or at the time of the execution of the mortgage, notify the defendant that part of the lands was trust property; that he was then in possession of the premises, using them as his own; that the first mortgage was superseded by a second one, which was also taken without notice and under like circumstances of possession and use by Riddle; that money and supplies were advanced on the faith of the second mortgage; that, after its foreclosure, the whole mortgaged premises, except 3,000 acres, were sold at [612] sheriff's sale under the morgage fi. fa., and the defendant became the purchaser; that at the sale no distinct notice was given of the trust claim or any particular claim, nor was any specific portion of the premises sold designated as the subject of an adverse title; that something was said to the effect that whoever bought would have trouble, but the warning, such as it was, applied alike to all the premises sold, and there was nothing to restrict it to the land in controversy or any other definite part; that the defendant heard nothing then about any trust; that the 3,000 acres not sold had been claimed, in the mode applicable to claims under the laws of Georgia, by Mrs. Riddle, and so could not be sold at that time; that she suffered the property now in controversy to be sold, without interposing any claim to it, although it was embraced in the same levy with the 3,000 acres which she did claim; that it is not true that the defendant knew that the mort gage deed included any trust land when he caused the mortgage to be foreclosed, nor did he know that the lands now in controversy were trust lands when he purchased them at the sale and took the sheriff's deed for them, nor did he have notice of the alleged right of the plaintiffs when he took possession of his purchase, unless what was so said at the sale, as above set forth, amounted to such notice; and that, even if it did, the right of the defendant could not be affected by notice, as he and his firm were innocent mortgagees for value, and had no notice at the time they gave credit and took the security. In April, 1883, the answer was amended by averring that the trust deed was not executed, signed or delivered, nor even written, at the time it bears date, nor until within the last few years; that it is a much younger instrument than the mortgage under which the defendant claims title; and that it was fabricated and antedated, and not recorded, and could not have been recorded, at the time the certificate of record entered on it represents it to have been recorded.

Issue being joined, the proofs on both sides were taken by depositions, according to the usual practice in equity cases. In December, 1883, a jury trial was had. The record does not disclose any order of court for the trial of feigned issues, or of issues of fact, by a jury, but merely states that, on the 5th of December, [613] 1883, a jury was empaneled to try certain issues of fact, and gives the names of the jurors, and states the appearance of the respective parties at the trial, and the result, as follows:

"To the first issue of fact submitted by the court, to wit, 'Is the deed of trust presented a true, valid, and authentic instrument executed at the time it purports to be?'

"We, the jury, find that the deed of trust pre