United States for the District of Louisiana. Mr. Justice Bradley delivered the opinion of the court: On the 3d of July, 1869, Amos B. Merrill sold to Margaret D. Allain a sugar plantation, known as the Australia plantation, situated in the Parishes of West Baton Rouge and Iberville in Louisiana, and by the act of sale reserved the vendors' lien and privilege to secure the payment of three notes of $11,000 each, part of the purchase money, payable respectively in one, two and three years, with interest and attorneys' fees. On the 7th of July, 1869, Margaret D. Allain sold to one William H. Aymar, one undivided half of the same property for $36,000, Aymar agreeing to pay the three notes given to Merrill, as part of his purchase money; and vendors' lien and privilege was required as secarity for his paying said notes. On the 9th day of May, 1871, Mrs. Allain sold to Aymar the other undivided half of the property, reserving a like vendors' lien and privilege for part of the consideration, as well as for the payment of the original notes. In January, 1873, Frank M. Ames, being then the holder of the last note for $11,000 given by Mrs. Allain to Merrill, filed a bill in the Circuit Court of the United States for the District of Louisiana, to foreclose and sell the mortgaged plantation for the payment of said note, making Mrs. Allain, with her husband and Aymar, defendants to the suit. On the 24th of May, 1873, the defendants filed a joint answer admitting the claim, and on the same day a decree of foreclosure and sale was made. On this decree an order for the issue of execution was made on the 19th of June, 1876, for the benefit of Edward J. Gay, subrogee of Frank M. Ames, and execution was issued accordingly; and on the 2d of September, 1876, the property was sold by the sheriff to one Charles E. Alter for the sum of $28,800, of which $26,307.82, the balance left after paying expenses, was paid into court, and deposited in the sub-treasury to the order of the Circuit Judge. the hands of the sheriff for distribution until The allegation in Alter's intervention or cross-bill, in relation to the Ames judgment, is as follows: "Your orator shows that he is informed, believes and charges, that, on or about the 3d of June, 1874, Frank M. Ames sold the aforesaid judgment, rendered in his favor, to Henry P. Redmond and Frederick Eastman, purchasing for the defendant, William H. Aymar, for the price of $8,000, $3,000 of which was paid on or about the 3d of June, 1874, and the balance to be paid thereafter and, consequently, there can only be due on said judgment the sum of $5,000.” It is further alleged that Gay knew these facts when the judgment was transferred to him. If these statements are true, Gay had no right to claim more than $5,000 on the judgment. Redmond and Eastman held the judgment for Aymar's benefit, except for the balance of $5,000, and except to that extent it was in equity extinguished. The question with regard to the amount due to Gay is, therefore, a question of fact. We have carefully examined the evidence on this subject, and have come to the conclusion that the averments of the cross-bill are substantially true. First, as to the purchase of the judgment by Redmond and Eastman in 1874. The negotiation was commenced by Aymar, who teleOn the 11th of July, 1876, after the execution graphed Ames on the 28th of March, 1874, as folcame into the sheriff's hands, and before he ad- lows: "Parties will buy your note against Ausvertised the property for sale, Charles E. Alter tralia for $6,500, to be consummated in sixty (who, as before mentioned, afterwards became days. Will you accept above for your whole the purchaser at the sheriff's sale) filed a bill of claim? Answer paid." Ames telegraphed complaint in the circuit court in the nature of Judge Merrick, his attorney, next day: "Will a bill of intervention or cross-bill, alleging that sell Allain note for $9,000 and legal expenses only $5,000, instead of $11,000, besides interest, within sixty days. Aymar proposes $6,500." was due on the judgment in favor of Frank M. It seems that Ames had a pledge of half the Ames which had been purchased by Edward sugar on the plantation. Merrick wrote Ames J. Gay, and that he, Alter, held the second of on the 2d of April as to the condition of the the three notes given by Mrs. Allain to Merrill, plantation, and stated that there were 47 hhds. and had obtained judgment thereon in the Fifth of sugar, "which will give you twenty-four." District Court for the Parish of Orleans; and He further says: "Your telegram of 30th is at that the first of said three notes had been paid, hand, and I have had a conference with the although it had been fraudulently put into the broker who is managing for Aymar, and subhands of one George F. Miller, who had re-mitted to him your counter-proposition." covered a judgment thereon, and he prayed that this judgment might be canceled; that the Ames judgment held by Gay might be reduced to $5,000, and that the money to be produced by This broker was Thomas S. Elder of New Orleans. The negotiation continued with him until the 7th or 8th of May, when it was concluded by an agreement to give Ames $8,000 for the 66 sugar; says he did not remember employing Elder to negotiate for him. Mr. Elder testifies that Aymar requested him to call upon Judge Merrick to negotiate for the purchase of that claim in behalf of other parties; but he (Aymar) never mentioned who the parties were, and he (Elder) never knew anybody in the transaction but Aymar. A letter from Elder to Judge Merrick, dated May 7th, 1874, which closed the transaction of the purchase of the Ames judgment, commenced with the words: " Sir: I am instructed to accept the proposition mentioned by you to-day for the entire claim of Mr. Ames against Australia plantation and W. H. Aymar, the present owner, to wit: etc." Mr. Elder being asked by whom he was so instructed, answered: "By Mr. Aymar, sir. He was particular, though, that I should understand that he was not the principal in that matter;" but he adds, in answer to another question, that he never knew of any principal. was paid out of the proceeds of the sugar produced on the plantation; and that it was pretended to be purchased for Eastman or Redmond, but that neither of them paid anything in the transaction; and that it continued to be held by Ames only as security for the balance of the purchase money, namely: $5,000 and counsel fees. judgment and to pay $1,000 counsel fees. $3,000 was to be paid in cash in thirty days, and the balance of $5,000 in January following. The proceeds of the sugar on which Ames had a lien was to be allowed on the cash payment of $3,000. The judgment and papers were to be held by Ames as security for the deferred payment of $5,000. On the 3d of June, Mr. Merrick wrote to Ames that the $3,000 had been paid by Frank N. Butler, Esq., and was to his, Ames', credit. Mr. Merrick, when called upon to testify, could not tell who was the unknown party who was supposed to have purchased the judgment. Mr. Butler, the counsel who represented the supposed purchaser, was the standing counsel of Aymar as well as of Eastman and Redmond. In his testimony he says he had every reason to believe that Eastman or Redmond bought the judgment, either Eastman for Redmond or Redmond for Eastman. He says that Aymar was aware of the transaction, and was desirous it should take ef- Much more evidence to the same effect could fect. The first note and judgment, which was be adduced. Suffice it to say, that we are enheld by Dr. Mercier, were purchased about the tirely satisfied that the Ames judgment was same time, ostensibly by the same parties, and purchased in May, 1874, for the benefit of $3,500 paid on it out of the proceeds of Ay- Aymar, for the sum of $8,000 besides counsel mar's sugar. Mr. Butler admits that this judg-fees; and that $3,000 of the purchase money ment was afterward pledged by Eastman or Redmond to one Miller, to secure a debt of Aymar's, for which Eastman had given his note. Why this was done he does not know. Redmond and Eastman were examined. Redmond, who was a clerk of Eastman, admits that he had no interest in the matter; that he acted for Eastman. As to the first note, to which he was subrogated in place of Dr. Mercier, he says: I really had no interest in the subrogation, and was only permitting my name to be used for that purpose by Eastman, but not by Aymar. I do not know if Aymar's counsel made the arrangement or prepared the subrogation. I did not know Aymar in the transaction. I handed the money, that is, Eastman's check, to Lacey & Butler to pay Dr. Mercier for the subrogation. The check was $3,500, I think, I did not draw the money. had no means at that time, and was not a man of means." This $3,500 was shown to be the proceeds of Aymar's sugar. As to the Ames judgment, Redmond says he does not remember purchasing it; that Eastman may have purchased in his name, but he had no recollection of it. Eastman's testimony is most vague and unsatisfactory. His recollection is greatly at fault, and he does not know what has become of his books or memoranda. He was for merly a clerk of Aymar and then a lessee of Aymar's cotton press, and on very intimate terms with him. As to the lease he was asked whether it was not a simulated one. His answer was "No, sir; I think not." Being asked why he answered so indefinitely, he said: "Well, he (Aymar) has had so many transactions that I do not remember exactly about them both, Mr. Aymar and myself." He claims to have bought the Ames note; but he admits that he never had possession of it; he thinks Judge Merrick had possession of it; that Butler made the negotiations with Judge Merrick; whether Aymar had anything to do with the negotiations he does not know; admits that the $3,000 paid on the purchase money of the judgment came from the proceeds of Aymar's 66 We are also satisfied, from the evidence in the case, that Gay, when he purchased the same judgment in May, 1876, knew the substance of this transaction, or had sufficient knowledge to make it his duty to make further inquiries. Mr. Merrick being asked the question: "When this transfer was made by Ames to Gay, was Gay informed of the previous transfer mentioned in the documents marked 1, 2 and 3" (the proposition of Ames, and Elder's letters of acceptIance in May, 1874), "or anything relative thereto?" answered: I cannot say that these papers were shown to him, but I think he had knowledge of it;" and he distinctly says that that previous transfer was the subject of conversation with him. Mr. Ames testifies that he told Gay, in March, 1876, all his transactions concerning the property. Gay's answer to Alter's crossbill is somewhat evasive on the subject. He avers that he is ignorant of all transactions which may have occurred previous to his becoming the owner of judgment as set forth, but that he is informed and believes, it is not true that any sale of the judgment was ever made by Ames to Redmond and Eastman purchasing for Aymar, as charged in the bill; and he denies that he had knowledge of the pretended sale as aforesaid, at the date of the transfer, but admits that he was informed that some transactions had taken place relative to said note between Ames and parties other than those set forth in the bill, but said negotiations never resulted in any complete agreement; said parties being unwilling to carry out their proposition. This answer must be taken in view of the fact that, in Gay's negotiations with Ames and Merrick for the purchase of the judgment, particular reference was made to the $3,000 which erty. RAILWAY COMPANY, Plff. in Err., v. WILLIAM RENWICK ET AL., Composing the Firm of RENWICK, SHAW & CROSSETT. (See S. C., 12 Otto, 180-183.) Riparian proprietor, rights of-Iowa law. had been paid to Ames on account of the pur- DAVENPORT AND NORTHWESTERN chase in 1874, the latter insisting that he should never be called upon to refund that money by reason of selling the judgment, and that Gay should guaranty him from such liability. Gay, in his testimony, admits that Ames, in his propositions, was very particular to specify the nature of this $3,000 transaction, and always plainly stated that it was a payment on account of an agreement on his part to sell; but he says that Ames insisted that the parties had entirely failed to carry out their agreement, and that he considered they had forfeited what they had paid, and that he considered the note his propNow we know that this was not the terms of the agreement, and if Gay knew what he says Ames told him, he had sufficient knowledge to put him on further inquiry as to what the particulars of the agreement were, by ascertaining the names of the parties and applying to them for information. But whether he had sufficient notice or not, as purchaser of the judgment, he stood in no better plight than Ames did. If, as was the fact, Ames held it merely as collateral security for the balance of the $5,000 purchase money, besides counsel fees, Gay cannot hold it for a larger amount. As this was all the interest in it which Ames had to dispose of, it was all that Gay could acquire. It is contended however, by the plaintiff in error, that the contract of 1874, whereby Ames agreed to sell his judgment for $8,000, was a synallagmatic contract, which he had a right to rescind if the agreement of the other party as to the payment of the purchase money was not performed. This is, undoubtedly, the law of Louisiana; but that law also requires that, if a party to a contract wishes to rescind it for such a cause, he must return to the other party what he has received, so as to put him in the same situation he was in before. In the present case, it is not to be supposed that it was Ames' duty to return the $3,000 which he received, because it was really received from Aymar, the debtor. But he was at least bound to credit that amount on the judgment, which would have been a substantial return; and in that case he would have had a right to maintain his judgment for the whole balance, and Gay, his vendee, would have had the same right. But he did not do this; nor has Gay done it; but, on the contrary, the latter has endeavored to collect the whole judgment without any deduction whatever. This conduct is totally inconsistent with the position taken. It shows, not a rescission of the contract, and a return or credit of the amount paid thereon, but a determination to regard the transaction as altogether void and the whole judgment still due. We think that this position cannot be maintained. As to Alter's title to the second note; an attempt was made to show that that also had been bought for Aymar's use, and that Alter stood in no better plight than Gay. But this attempt failed. It clearly appears by the evidence that Alter purchased the note of Merrill, to whom it had been indorsed by Mrs. Allain at a discount of ten per cent. We think that the decree of the Circuit Court was correct, and it is, therefore, affirmed. True Copy. Test: James H. McKenney, Clerk, Sup. Court, U. S. 1. If a riparian proprietor erects a pier in front Submitted Mar. 15, 1880. Decided Mar. 29, 1880. The proceedings brought up for review by this writ of error were commenced by the Railroad Company in September, 1876, under the statutes of Iowa regulating the exercise of the right of eminent domain for the construction of railways, to have the damages ascertained which would be sustained by the defendants in error, as riparian owners, by the construction of the railroad along the shore of the Mississippi, between high and low water-mark, in front of certain land in Davenport, Iowa, bounded on the river, and occupied by the defendants in error for the purposes of a steam saw-mill and appurtenances, for manufacturing lumber from logs floated down the river to said mill. An appeal was taken from the award of the six freeholders summoned by the sheriff, to the State Circuit Court for Scott County, where the appeal was tried by a jury and a verdict rendered fixing the damages to be paid to the defendants at $5,000. Judgment being rendered accordingly, the Railroad Company appealed to the Supreme Court of Iowa, where the judgment below was affirmed. See 49 Iowa, 664. Thereupon said Company sued out this writ of error. The Iowa Legislature, in 1874, enacted a statute (Public Laws of Iowa, 1874, ch. 35, p. 28), authorizing owners of property upon the Iowa banks of the Mississippi and Missouri Rivers, upon which property there is carried on any business in any way connected with the navigation of said rivers, or to which the said navigation is a proper or convenient adjunct, to construct and maintain in front of their said property, proper and convenient erections and devices for the use of their respective pursuits, and for the protection and harbor of rafts, logs, floats and other water crafts; provided, that the same present no material or unreasonable obstruction to the navigation of the stream, or to a similar use of adjoining property. It also made it unlawful for any person or corporation to construct or operate any railroad or other obstruction between such lots or lands and either of said rivers, or upon the shore or margin thereof, unless the injury or damage to such owners occasioned thereby should first be ascertained and compensated, in the manner provided by chapter 4, title 10, of the Code. The proceedings in this case were commenced and prosecuted under the authority of the 2d section of this Act, there being no other law of the State providing for the assessment of damages in such a case. It was insisted on behalf of the Railroad Company in the court below, that the above statute was void, as conflicting with the Act of Congress of Mar. 3, 1873, R. S., sec. 5254. It was claimed that Congress, under the Constitution, is invested with power to regulate the subject of erecting piers, cribs, etc., on navigable rivers; and having exercised the power as to the Mississippi River, by the Act referred to, any state legislation on the same subject is unauthorized and void; that, therefore, the Iowa Act of 1874 was invalid, and the defendants in error were, in consequence thereof, entitled to no damages whatever for being cut off from the river by the construction of the railroad in front of their property. Instructions to the jury to that effect were asked on the trial and refused; for which refusal error was assigned in the Supreme Court. Messrs. Grant & Grant, for plaintiff in error. Messrs. John T. Lane and John N. Rogers, for defendants in error. Mr. Chief Justice Waite delivered the opinion of the court: JOHN I. ADAMS ET. AL., Partners, Composing the Firm of JOHN I. ADAMS & Co., in Liquidation. (See S. C., 12 Otto, 66-68.) A national bank can be sued in a state court, in a local action, in any other county or city than that [No. 248.] IN ERROR to the On the 28th day of July, 1875, John I. Adams & Co. brought suit in the District Court of the Parish of Lafourche, against Daunis and Tucker, to foreclose a mortgage, but without making any of the creditors who claimed rights under a prior mortgage, parties. Such proceedings were had that a writ of seizure and sale was issued, under which the sheriff adjudicated the property to John I. Adams & Co., for the price of $17,519. Adams & Co. claimed the whole price on their mortgage and refused to pay their bid on this ground, but the sheriff refused to admit this demand and complete the adjudication. Adams & Co. then moved the court under whose writ the property had been sold, for a rule on the bank which claimed under the prior mortgage, to show cause why the same should not be erased from the records. The motion also averred "That the affairs of the Bank of New Orleans are now in the hands of Nicholas W. Casey of the City of New Orleans, Receiver, appointed under the National Bank Act, and that he is the proper party on whom to serve a copy hereof." Although the Supreme Court of Iowa decided that Congress, under the power to regulate commerce, had jurisdiction over the Mississippi River, and having exercised that power in the way specified in sec. 5254, R. S., all state legislation in conflict therewith was void, still the question remains, whether, if a riparian proprietor improves his property with a view to its use in connection with the river, without complying with this Act of Congress, a railroad company, under the power of eminent domain granted by the State, can appropriate his improvements to its own use without his consent and without making him compensation. This, we think, is a federal question, giving us jurisdiction, but it is a question on which we do not care to hear argument. The controversy is not between the public and the riparian owner as to his right to keep up his improvements. The public does not complain, but the Railroad Company wants the improvements. In the hands of the Company they will be just as much a nuisance, so far as the public is concerned, as they In answer to the motion the Receiver alleged can be if kept up by the owner. As between these the conversion of the Bank of New Orleans into two parties, the improvements are the property the New Orleans National Banking Association, of the riparian proprietor, and if the Company under the National Bank Act, and the succeswants them for its own use it must make com- sion of the latter to all its rights and property; pensation. So the court below has decided, and, that such national bank was located in the City to our minds, its decision was clearly right. of New Orleans, Parish of Orleans, Louisiana, While in Iowa it has been held that the State and could be sued only in the United States owns the lands lying along the river between Court, or in a state, county or municipal court high and low water-mark, care was taken in or city in which it was located; and reserving the Act of March 18, 1874, to provide that it the benefit of this exception, in case it should be should not be lawful for any person or corpo- overruled, the Receiver answered and claimed ration to construct or operate any railroad or a prior mortgage on the property, and averred other obstruction between the shore and the that the same had never been paid. The Disriver without compensation to the shore own-trict Court overruled the exception as to the juThe 2d section of the Act is good, even risdiction and ordered the erasure of the bank's ers. mortgage by decree of Dec. 18, 1875, from which decree an appeal was taken; whereupon the Receiver sued out this writ of error. Messrs. Durant & Hornor for defendant in error. Messrs. John D. Rouse, Chas. Case and Wm. Grant, for plaintiff in error. Mr. Chief Justice Waite delivered the opinion of the court: The federal question in this case is, whether a national bank can be sued in a state court in a local action in any other county or city than that where the bank is located. By sec. 5198, R. S., it is provided that "Suits, actions and proceedings against any association under this title (The National Banks) may be had in any circuit, district or territorial court of the United States held within the district in which such association may be established, or in any State, county or municipal court in the county or city in which said association is located, having jurisdiction in similar cases." This, we think, relates to transitory actions only, and not to such actions as are by law local in their character. Section 5136 subjects the banks to suits at law or in equity as fully as natural persons, and we see nowhere in the Banking Act any evidence of an intention on the part of Congress to exempt banks from the ordinary rules of law affecting the locality of actions founded on local things. The distinction between local and transitory actions is as old as actions themselves, and no one has ever supposed that laws which prescribed generally where one should be sued, included such suits as were local in their character, either by statute or the common law unless it was expressly so declared. Local actions are in the nature of suits in rem, and are to be prosecuted where the thing on which they are founded is situated. To give the Act of Congress the construction now contended for, would be, in effect, to declare that a national bank could not be sued at all in a local action where the thing about which the suit was brought was not in the judicial district of the United States within which the bank was located. Such a result could never have been contemplated by Congress. WILLIAM G. LANGFORD, Plff. in Err., v. CHARLES E. MONTEITH. (See S. C., 12 Otto, 145-148.) Lands of Indians in Territories—suits in Idako *1. Where an Act of Congress, organizing a State him. Argued Apr. 5, 1880. Ν Decided Apr. 19,1880. IN ERROR to the Supreme Court of the Territory of Idaho. The case is stated by the court. Mr. Benjamin F. Butler, for plaintiff in Mr. Justice Miller delivered the opinion of the court: of the Territory of Idaho. brought an action before a justice of the peace fendant entered under a lease from him with a Plaintiff, in his petition, charged that the decondition to deliver possession to plaintiff on ten days' notice, which had been given. The proceeding in this case was clearly local time of making the lease, he was in possession Defendant answered by alleging that, at the in its nature. It related to property in the Par- under John B. Monteith, Indian agent; that he ish of La Fourche, which had been seized and was induced to give the lease by the false represold under process from the district court of sentation of plaintiff that he was the owner of that parish. The proceeds of the sale were in the property; that said buildings and land were that court, and could not be distributed until then and are now the property of the United "a conflict of privileges" arising between cred-States; and that the government had issued or itors was settled. No personal claim was made against the bank. Nothing was wanted except to" class the privilege" of the bank on the property seized "according to its rank." Whether, under the laws of Louisiana, the form of proceeding instituted for that purpose was appropriate, is not a question for us. The decision of the Supreme Court of the State as to that matter is conclusive. Judgment affirmed. ders to defend its possession against plaintiff. Another allegation of the defense is, that the property is situated within an Indian reservation, to which the Indian title has never been extinguished, and, therefore, forms no part of the Idaho Territory. Of course, if this latter allebefore whom the case was first tried, nor the gation was true, neither the justice of the peace District Court to which it afterwards came by appeal, had any jurisdiction over the case. And the opinion of this court at the last Term, in the case of Harkness v. Hyde, 98 U. S., 476 [XXV., 237], is relied on by defendant's counsel. The principle announced in that case, namely: that when, by the Act of Congress which organizes a new Territorial or State Government, *Head notes by Mr. Justice MILLER. |