Opinion of the Court.

in reference to the disposition of the property and assets of this deceased defendant must be had according to the laws, and in the courts, of the State creating the corporation.

It is worthy of notice that the case in which the decree of dissolution was entered was not commenced till long after this suit was begun and the receiver had taken possession of the property that the receiver thus appointed by the state court does not himself come into this court and ask possession of this property; and also, that the state court in its decree of dissolution, expressly recognized the possession of the United States court, and in the following words declined to interfere therewith: "But inasmuch as it appears to the court that the estate and effects of said Brown, Bonnell & Co. are at the present time in the hands of a receiver appointed by and acting under the orders of the Circuit Court of the United States for the Northern District of Ohio, it is ordered that the receiver hereby appointed shall not interfere with the possession of the receiver appointed by said Federal court of the effects and assets of said corporation." But we do not care to rest our conclusion on these circumstances. The Circuit Court takes its jurisdiction not from the State of Ohio, but from the United States; and the extent of its jurisdiction is not determined by the laws of the State, but by those of the United States. Doubtless, while sitting in the State as a court of the United States, it accepts and gives effect to the laws of the State so far as they do not affect its jurisdiction and the rights of non-resident creditors. It nevertheless exercises powers independent of the laws of the State; and when, in pursuance of the jurisdiction conferred by the laws of the United States, it takes possession of the property of a defendant and proceeds to final decree, determining the rights of all parties to that property, its decree is not superseded and its jurisdiction ended by reason of subsequent proceedings in the courts of the State, looking to an administration of that property in accordance with the laws of the State. It would be an anomaly in legal proceedings if, after a court with full jurisdiction over property in its possession has finally determined all rights to that property, subsequent proceedings in a court of another

Opinion of the Court..

jurisdiction could annul such decree, and disturb all rights once definitely determined. No such anomaly exists in the relative jurisdiction of state and Federal courts. The latter having once acquired full jurisdiction, and proceeded to a final determination, may rightfully proceed still further and to an execution of that decree, irrespective of any proceedings in the courts of the State. The first and principal contention of the appellants must therefore be overruled.

Secondly. It is insisted that the Circuit Court erred in refusing to allow a contest of the adjudication of the rights of creditors made in its final decree, on the subsequently filed petition of these appellants; and also that it refused to allow the claim of one of these appellants, who now insists that he is a creditor and entitled to share in the proceeds of the sale. In the proceedings anterior to the final decree, it appears that notice was given to all creditors to prove their claims, and that this particular creditor had notice of those proceedings, but failed to make proof of his right. It is now insisted that the decree in respect to these several claims was merely interlocutory, and that the matter is open to further and subsequent inquiry. There is no pretence of want of notice, or ignorance of the proceedings, and no excuse given for failing to litigate all these matters when before the court prior to the decree. Under such circumstances we dissent entirely from the contention that this decree was, as to these matters, merely an interlocutory order. That decree determined the rights of all parties interested in the proceeds of this property, and if any one of these appellants, after notice, failed to assert his rights or to challenge the allowances then made by the court, his rights and challenge were lost. He has had his day in court, and is concluded by the final decree.

The final contention is, that there were certain irregularities in the sale, and those irregularities are sought to be established principally by the affidavits of counsel for appellants, based upon hearsay testimony. So far as such affidavits rest on hearsay testimony, it is enough to say that they prove nothing; and in so far as they refer to other matters, it is also enough to say that we see no substantial error in the proceedings of

Statement of the Case.

the sale. The defendant is not now contesting the sale, and so far as any trifling matters are concerned, it does not lie in the mouth of these alleged creditors and stockholders to challenge the regularity of the proceedings. Indeed, we cannot fail to observe that the main scope and purpose of this appeal seem to be to relitigate questions fully determined by the final decree appealed from and affirmed.

We see no error in the record, and the decree of the Circuit Court is

Affirmed.

MR. JUSTICE BRADLEY and MR. JUSTICE GRAY did not hear the argument or take part in the decision of this case.

DAVIS v. PATRICK.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA.

No. 984. Argued October 22, 23, 1891.- Decided November 9, 1891.

In determining whether an alleged promise is or is not a promise to answer for the debt of another, the following rules may be applied: (1) if the promissor is a stranger to the transaction, without interest in it, the obligations of the statute are to be strictly upheld: (2) but if he has a personal, immediate and pecuniary interest in a transaction in which a third party is the original obligor, the courts will give effect to the promise. The real character of a promise does not depend altogether upon form of expression, but largely upon the situation of the parties, and upon whether they understood it to be a collateral or direct promise. When, in an action to recover on a contract, testimony is admitted without objection, showing the alleged contract to have been made, but on a day different from that averred in the declaration, and the court directs a verdict for the defendant without amendment of the declaration, such ruling is not erroneous by reason of the variation.

THE case was stated by the court as follows:

This case was commenced on the 24th day of November, 1880, by the filing of a petition in the District Court of Knox County, Nebraska. Subsequently it was removed to the Circuit Court of the United States, and at the May term, 1883,

Statement of the Case.

of that court a judgment was rendered in favor of the plaintiff. That judgment was reversed by this court, at its October term, 1886. Davis v. Patrick, 122 U. S. 138. A second trial in January, 1890, resulted in another verdict and judgment for the plaintiff, and again the defendant alleges error. The peti tion counts on two causes of action. No question is made by counsel for plaintiff in error with respect to the first count or the rulings thereon - the only error alleged being in reference to the second count. That count is for the transportation of silver ore from the Flagstaff mine, in Utah Territory, to furnaces at Sandy, in the same Territory. In the first trial it was claimed that Davis, the defendant, was the real owner of the Flagstaff mine, and therefore primarily responsible for all debts contracted in its working. The relations between Davis and the Flagstaff Mining Company were disclosed by a written agreement, of date December 16, 1873. By that agreement it appeared that Davis, on June 12, 1873, had advanced to the company £5000, at the rate of six per cent interest, a sum then due; that it had sold to Davis and agreed to deliver at the ore-house of the company, free of cost, 5195 tons of ore, of which it had only then delivered 200 tons, although Davis had paid in full for the entire amount. The agreement also recited that Davis was to advance an additional amount, if needed, not exceeding £10,000. It then provided that the mine should be put under the sole management of J. N. H. Patrick, to be worked and controlled by him until such time as the ore sold had been delivered and the sums borrowed had been repaid, with interest. This control was irrevocable, save at the instance of Davis. Coupled with this agreement was a full power of attorney to Patrick. This court held that such contract established between Davis and the mining company simply the relation of creditor and debtor, and did not make him in any true sense the owner. For the erroneous rulings of the trial court in this respect the judgment was reversed. In the second trial, this construction of the relations of Davis to the Flagstaff Mining Company was followed by the court, and the jury instructed that the contract put in evidence between Davis and the mining company created simply the rela

Argument for Plaintiff in Error.

tions of creditor and debtor, and did not make the former liable for expenses created in working and operating the mine; and the trial proceeded upon the theory that during the time the services sued for were being rendered Davis was the party mainly and pecuniarily interested in the working of the mine, and that he assumed to Patrick a personal responsibility for such services; and the real question tried was whether Davis's promises were collateral undertakings to pay the debts of another, and void because not in writing.

[In the opinion of the court, post, 485-487, some of the material evidence at the last trial is set forth.]

Mr. J. M. Woolworth for plaintiff in error.

The case was put to the jury upon the words of an original and absolute promise. It was said to them, if Davis agreed to pay for the services, and if he agreed to pay the account, and if he agreed to pay for the work, and so on, he is liable. This was error, whether the proof shows that the form of expression was "I will see you paid," or "I will be responsible." Both forms have in law a different meaning and effect from the one, "I will pay you." It is elementary that the words "I will see you paid" form a collateral promise. On this point we must look to the statute of Nebraska, and its construction by the Supreme Court of that State. De Wolf v. Rabaud, 1 Pet. 476.

The statute in Nebraska, as that in New York, (considered in De Wolf v. Rabaud,) is substantially "a transcript of the 29th of Charles 2, c. 3." It is as follows: "In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith: Second, every special promise to answer for the debt, default or misdoings of another person." Comp. Stats. c. 32, § 8. The cases upon the statute are as follows: Rose v. O' Linn, 10 Nebraska, 364. The servant of A was injured by the wrongful act of B. A physician was called in by B, who went to A's house, where the servant lay, and performed medical services; immediately after which A told him that B was

VOL. CXLI-31