made unfit thereby for cultivation, which shall all liability for reclaiming said lands. A supremain unsold at the passage of this Act, shall plement was passed in 1862, proving that no be and are hereby granted to said State." The county should be released from its obligation to 4th section declared that the provisions of the make the necessary drains and levees contemAct should be extended to and their benefits be plated by the Act of Congress passed Sep. 28, conferred upon each of the other States of the 1850, and the Act of Assembly passed in 1853. Union in which such swamp or overflowed lands The contract in dispute was made under this might be situated. These lands, therefore, were law, and our first impression was that it introgranted to the several States in which they lie duced a scheme subversive of the trust imposed for a purpose expressed on the face of the Act; upon the State by the Act of Congress; that its and that purpose was "To enable the State to effect was to devote the lands and proceeds construct the necessary levees and drains to re- thereof to purposes different from those which claim them." The 2d section of the Act, after the original grant was intended to secure; that prescribing the method in which the lands should it threw off, or endeavored to throw off, all pubbe designated and patented to the State, con- lic responsibility in relation to the trust; and cluded with the following proviso: "Provided, hence that the scheme itself and the contract however, That the proceeds of said lands, whether based upon it were void. But a reconsideration from sale or direct appropriation in kind, shall of the subject has brought us to a contrary conbe applied exclusively, as far as necessary, to clusion. The argument against the validity of the purpose of reclaiming said lands by means the scheme is, that it effects a diversion of the of the levees and drains aforesaid.' Our first proceeds of the lands from the objects and view was, that this trust was so explicit and con- purposes of the congressional grant. These trolling as to invalidate the scheme finally de- were declared to be to enable the State to revised by the Legislature of Iowa for the disposal claim the lands by means of levees and drains. of the land, and under which the contract in The proviso of the 2d section of the Act of Conquestion was made. But on more mature re-gress declared that the proceeds of the lands, flection, after hearing additional argument, we whether from sale or direct appropriation in are satisfied that such a result did not necessa- kind, should be applied exclusively, as far as rily follow. The history of the state legislation necessary, to these purposes. This language on the subject is briefly as follows: implies that the State was to have the full power of disposition of the lands; and only gives direction as to the application of the proceeds, and of this application only "as far as necessary to secure the object specified. It is very questionable whether the security for the application of the proceeds thus pointed out does not rest upon the good faith of the State, and whether the State may not exercise its discretion in that behalf without being liable to be called to account, and without affecting the titles to the lands disposed of. At all events, it would seem that Congress alone has the power to enforce the conditions of the grant, either by a revocation thereof or other suitable action, in a clear case of violation of the conditions. And as the application of the proceeds to the named objects is only prescribed "as far as necessary," room is left for the exercise by the State of a large discretion as to the extent of the necessity. In the present case it is not shown by allegations in the bill, or otherwise (if such a showing would be admissible), that any necessity existed for devoting the proceeds of the lands in question to the purposes of drainage. No case is shown as the basis of any complaint, even on the part of the General Government, much less on the part of the County of Adams, which voluntarily entered into the arrangement complained of. Our conclusion, therefore, is, that this objection to the validity of the contract cannot prevail. The Legislature of Iowa, by an Act passed in January, 1853, granted the lands to the several counties in which they were situated, subject to the conditions of the Act of Congress and such laws as the Legislature might thereafter pass. It created a drainage commissioner's office, and county surveyors to lay out drains; after draining, the lands were to be appraised and sold at auction to the highest bidder in small tracts; and it provided for reclamation of the lands in detail. Other Acts were subsequently passed in pursuance and furtherance of this general scheme, which was clearly conformable to the purposes of the congressional grant. The difficulty we had arose upon the subsequent Act of the Legislature of Iowa, passed in 1858, by which it was declared (by section 1) that it should be competent and lawful for the counties owning swamp and overflowed lands to devote the same, or the proceeds thereof, either in whole or in part, to the erection of public buildings for the purpose of education, the building of bridges, roads and highways, or for building institutions of learning, or for making railroads through the county or counties to which such lands belonged; and (by section 2) it was enacted that the proper officers of any county might contract with any person or company for the transfer and conveyance of said swamp or overflowed lands, or the proceeds thereof, or otherwise appropriate the same to such person or company, or to their use, for the purpose of aiding or carrying out any of the objects mentioned in the 1st section. It was further provided that, before any such contract could take effect, the proposition should be submitted to a vote of the people of the county for their approval or rejection. There was a proviso in the 3d section that no such sale should be valid, unless the person or company purchasing should take the lands sold subject to all the provisions of the Act of Congress (before referred to), and should expressly release the State of Iowa and the county from Having disposed of the questions of fraud and of the supposed invalidity of the state legislation, the other grounds alleged for setting aside the contract will not require extended discussion. One of these grounds is that the sale of the County's swamp lands was made at a much less price than the law allowed them to be sold for; that, by an Act of the Legislature of Iowa then in force, regulating the disposal of such lands, it was made unlawful to sell them at a less price than $1.25 per acre. This question has been Looking at the whole case as presented to us, we think that the complainants below were not entitled to a decree, and that the bill should have been dismissed. The decree of the Circuit Court is reversed and the cause remanded, with directions to enter a decree dismissing the bill without prejudice to the right of the County to bring an action at law for any breach of the terms of the contract. decided adversely to this view by the Supreme | non-performance raises an action merely, and Court of Iowa in the case of Audubon Co. v. does not annul the entire contract. We are disEmigrant Co., 40 Iowa, 460. It was there held posed to think that as the appellants had notice that, when a county devotes its swamp lands to of Davis' suit, and co-operated in its defense, purposes specified in the Act of March 28, 1858, the claim of the County is valid; but, being a it is not limited in price to $1,25 per acre, but mere legal demand, it cannot be recovered in may devote them to such purposes, upon such this suit; and we are satisfied that it constitutes terms as may be agreed on, if the contract be no proper ground for the relief sought by the approved by a vote of the people. The contract bill. in that case was substantially the same as in this, and was sustained. As this is a question of state law, if we had any doubt upon it, we should defer to the decision of the state court. Another question suggested for relief is, that the sale of the County's claim against the United States for indemnity for lands sold by the government was contrary to law, and void. If the law prohibiting assignments of claims against the government applies to such a claim as that which was the subject of the contract in this case, the government might have refused to pay it; but after it was paid, the County being particeps criminis, cannot, against its own act, have a standing in a court of equity either to recover it from the appellants, or to have the contract avoided. So far as the state laws are concerned, the Supreme Court of Iowa has frequently sustained contracts precisely like that now under consideration. See, Audubon Co. v. Emigrant Co. [supra]; Allen v. Cerro Gordo Co., 34 Iowa, 54; Page Co. v. Emigrant Co.,41 Iowa, 115; Ringgold Co. v. Allen, 42 Iowa, 697. The allegations of the bill to the effect that the Emigrant Company has not fulfilled its engagements with respect to the drainage and set tlement of the land, rest in covenant merely, and afford no ground for avoiding the contract. Where covenants are mutual and dependent, the failure of one party to perform, absolves the other and authorizes him to rescind the contract. But here the contract was largely carried into execution soon after its inception. The engagements of the appellants to introduce settlers and the like were to be performed in the future; and their performance was not made a condition, but, as before stated, rested in covenant. In case of a breach, they would lay the foundation of an action, but nothing more. Cited 107 U. S., 564; 10 N. W. Rep., 51; 15 N. W. Rep., 621. CHARLES H. HOLDEN, Appt., v. FREEDMAN'S SAVINGS AND TRUST (See S. C., 10 Otto, 72-74.) Interest, rate of. Where the local law allows the rate of interest to be fixed by the contract of the parties, the rule adopted by this court is to give the contract rate up to the maturity of the contract; and thereafter the rate prescribed for cases where the parties themselves have fixed no rate. [No. 47.] Argued Nov. 6, 1879. Decided Nov. 24, 1879. APPEAL from the Supreme Court of the Dis trict of Columbia. The case is stated by the court. Mr. William A. Meloy, for appellant, cited, on the question of interest, Brewster v. Wakefield, 22 How., 118 (63 U. S., XVI., 301); Burnhisel v. Firman, 22 Wall., 170 (89 U. S., XXII., 766); Macomber v. Dunham, 8 Wend., 553; U. S. Bank v. Chapin, 9 Wend., 471; Ludwick v. Huntzinger, 5 W. & S., 60. Messrs. Thomas H. Talbot, Enoch Totten and A. J. Cresswell, for appellees. Mr. Justice Swayne delivered the opinion of the court: To the same catagory belongs the question whether the appellants ought to have paid the claim of Frank M. Davis. The agreement required them to respect and fulfill any contracts then existing between the County and any person in relation to the lands and funds which formed the subject of negotiation. Davis had This record presents no ground for controa claim against the County for services in sur- versy as to the facts, and only one legal point veying the lands and in prosecuting the indem- that requires consideration. But for the imnity claim. The County insisted that the apportance of that point as a matter of local law pellants should pay this claim, which they re- we should dispose of the case without a formal fused to do, alleging it to be unjust and collu- opinion. sive. In 1866, Davis sued the County, and obtained judgment for $2,200. In 1869, this judgment, with interest and costs, then amounting to over $2,700, being paid by the County, was formally demanded of the appellants, and they again refused to pay it. It is claimed that this refusal entitles the County to repudiate the whole contract. We do not think so. It is one of those matters that rest in agreement merely, and is not in the form of a condition. The agreement is an independent one, a part of the consideration of the contract, it is true; but its On the 13th of October, 1870, at the City of Washington, Charles H. Holden, the appellant, made his promissory note of that date to John B. Wheeler, or order, for $5,000, payable four years from date at the Bank of Washington, with interest at the rate of ten per cent, payable semi-annually. On the same day he executed NOTE. The rule for calculation of interest. See note to Story v. Livingston, 38 U. S. (13 Pet.), 359. When interest is recoverable as damages, or on Wheat.), 690. money. See note to Sneed v. Wistar, 21 U. S. (8 to David L. Eaton a deed of trust of certain property in the City of Washington, to secure the payment of the principal and interest of the note as they should respectively fall due. On the 19th of October, 1870, Wheeler indorsed and delivered the note to the appellee, Talbot, who paid him at the time, as the consideration of the transfer, the sum of $5,000. Talbot thereupon became a bona fide holder of the instrument. On the 28th of July, 1873, he executed to his co appellee-the Savings and Trust Company-his promissory note for $1,500, payable at ninety days, and pledged the note of Holden as collateral security. Talbot's note is still unpaid. The interest on Holden's note was paid up to the 13th of April, 1873, and $75 on account of interest was paid subsequently. The principal and the residue of the interest are unpaid. Eaton, the trustee in the deed of trust, died on the 13th of February, 1873. On the 30th of September, 1871, Holden conveyed the trust premises to John Chester, one of the defendants. This bill was filed on the 18th of November, 1874. It prayed that a trustee should be appointed in place of Eaton; that the successor so appointed should be directed to execute the trust; and for general relief. The court below found, among other things, that Holden was indebted to Talbot on the note in the sum of $5,000, "with interest thereon at the rate of ten per cent per annum from the 13th of April, 1873, less the sum of $75," and that the Savings and Trust Company had a lien on the debt for $1,500, and interest from April 13, 1875. This subject was fully examined in the recent case in this court of Cromwell v. Sac Co., 94 U. S., 351 [XXIV., 195]. We need not go over the same ground again. Here the agreement of the parties extends no further than to the time fixed for the payment of the principal. As to everything beyond that, it is silent. If payment be not made when the money becomes due, there is a breach of the contract, and the creditor is entitled to damages. Where none has been agreed upon, the law fixes the amount according to the standard applied in all such cases. It is the legal rate of interest where the parties have agreed upon none. If the parties meant that the contract rate should continue, it would have been easy to say so. In the absence of a stipulation, such an intendment cannot be inferred. The analogies relied upon to support a different view are obviously distinguishable from the case in hand. The decree will be altered according to these views. It appears that since this appeal was taken, Thomas J. D. Fuller, Esq., the trustee appointed in place of Eaton, has also died. Another trustee in his stead will be appointed here. As modified in these two particulars, the decree will be affirmed and remitted to the court below for execution. Cited 103 U. S., 698; 68 Ind., 205; 84 Ind., 378: 43 Am. Rep., 99; 129 Mass., 82; 37 Am. Rep., 313; 95 N. Y., 430; 47 Am. Rep., 65. It was decreed that a new trustee should be, and he was thereby, appointed, and that in default of payment of the amount due from Hol- CHESTER A. ARTHUR, COLLECTOR, Piff. in den, and the costs, the trustee should proceed to sell the premises described in the deed of trust, etc. From this decree Holden appealed to this court. The note of Holden, including days of grace, matured on the 16th of October, 1874. Up to that time there can be no doubt that the rate of interest to be paid was that called for by the note. But what is the rate chargeable thereafter? The court below allowed continuously the rate expressed in the note. Was this correct? This is the question we are called upon to decide. The subject of interest in its historical aspect was considered by this court in Nat. Bk. V. Mech. Nat. Bk., 94 U. S., 437 [XXIV., 176]. The statutory provisions relating to interest in the District of Columbia are as follows: (1) The rate of six per cent per annum is allowed upon all moneys due, where there is no contract upon the subject. (2) Parties may stipulate in writing for ten per cent per annum, or any less rate. (3) If more than ten per cent is taken upon any contract, all the interest received may be recovered back, if it be sued for within a year. The rule heretofore applied by this court, under the circumstances of this case, has been to give the contract rate up to the maturity of the contract, and thereafter the rate prescribed for cases where the parties themselves have fixed no rate. Brewster v. Wakefield, 22 How., 118 [63 U. S., XVI., 301]; Burnhisel v. Firman, 22 Wall., 170 [89 Ú. S., XXII., 766]. Where a different rule has been established, it governs, of course, in that locality. The question is always one of local law. Err.. v. EMIL HEROLD. (See S. C., 10 Otto, 75-78.) Duty Act-question for jury. 1. Under the Act of June 30, 1864, imposing a duty to say to the jury that ground chicory was the same on ground chicory, it was not error for the court thing as burnt chicory. 2. Whether or not the article imported was a new chicory, was a question of fact for the jury. preparation and something other than ground [No. 77.] Argued Nov 18, 1879. Decided Nov. 24, 1879. IN ERROR to the Circuit Court of the United States for the Southern District of New York. This action was brought in the court below, by the defendant in error, to recover an alleged excess in duties collected by the defendant, now plaintiff in error. Upon the trial, evidence was introduced showing the importations by the plaintiffs from a foreign port into the Port of New York, in the year 1873, of certain merchandise upon which a duty had been assessed by the defendant, at the rate of five cents per pound, under section 11 of the Act of Congress, entitled," An Act to Increase the Duty on Imports, and for Other Purposes," approved Jan uary 30, 1864, which provides a duty on chicory root, four cents per pound; ground, burnt or prepared, five cents per pound." Upon the ascertainment and liquidation of said duties, the plaintiffs duly protested and appealed to the Secretary of the Treasury, and brought this action in due season, pursuant to the requirements of the Act of Congress, entitled "An Act to Reduce the Duties on Imports and to Re duce Internal Taxes, and for Other Purposes,' approved June 6, 1872, which provides a duty in lieu of former duties "On chicory root, ground or unground, one cent per pound." The testimony which was offered by the plaintiff tended to show that the article in question was commercially known as "finely ground chicory, in papers,' or 'paper chicory," and was pulverized chicory; that chicory is grown extensively in Germany, where it is largely used as a substitute for coffee. The root, when dug from the ground, is first washed and scraped, then split and cut by machinery into pieces or sections which are partially dried in the sun and then kiln-dried in which latter condition it be comes an article of commerce to this country. Of this there are two forms, "light kiln-dried" and "extra kiln-dried," neither of which are burnt or roasted, except such as is necessarily incident to the process of kiln-drying. 64 The next process is burning or roasting, which is done in heated cylinders. It is necessarily roasted before it can be ground. Then it is ground in mills, from which it emerges in coarse and fine particles commingled, in which condition, or when simply burnt or roasted, it is not an article of commerce. The chicory is then passed through sieves, by which the coarse and fine particles are separated from each other. The coarse particles are packed in barrels or casks for shipment, and is called in trade "coarsely ground," or granulated chicory;" the finer particles, after being again ground and reduced to powder, are packed in small paper bags, weighing ordinarily one quarter of a pound each, sometimes half a pound, which are packed in casks. This kind is called "finely ground chicory, in papers," or "paper chicory." Both forms are drier than the atmosphere, and ab sorb moisture from it; the first more slowly than the second, because the particles are larger. The cases or paper packages of " paper chicory" are placed in damp cellars or vaults at tached to and a part of the large chicory manufactories, some of which are exclusively for the manufacture of paper chicory, in order to hasten the absorption of moisture, and in some factories the hastening of absorption is further facilitated by allowing steam to escape into the cellars. The greater quantity of moisture in finely ground chicory over that which is absorbed in the "granulated," makes the paper chicory from 15 to 30 per cent. less per pound than the "granulated." Paper chicory, when taken out of the cellars, has the consistency of paste, and hardens as it is exposed to the air. The granulated chicory also hardens by exposure. The granulated chicory is usually sold by importers in this country, to coffee dealers and coffee roasters, to adulterate coffee; the paper chicory is sold exclusively to consumers, mostly Germans and Scandinavians in the Western States, who use it as a substitute for coffee. The defendant introduced evidence to show that the natural absorption of moisture was hastened by artificial means, e. g., by steam introduced through pipes in the vaults or cellars, and that this operation was an essential and usual process in the preparation of the paper chicory. On the part of the plaintiff, evidence was offered that nothing had been done to the chicory in these vaults, except to allow the natural absorption of moisture to take place by exposing the paper chicory to the air. Some of the witnesses testified that paper chicory had different traits, as to taste and smell, from granulated chicory. The plaintiffs gave some evidence to show that a different article from the imported article called "patent chicory," or "chicory coffee," was made by an admixture of water and foreign ingredients. It was not claimed that the plaintiff's goods contained any admixture of foreign ingredients. Verdict and judgment were for the plaintiff, and the defendant sued out this writ of error. The case further appears in the opinion. Mr. Edwin B. Smith, Asst. Atty-Gen., for plaintiff in error. Mr. Stephen G. Clarke, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: We think it was not error for the court to say to the jury that ground chicory was the same thing as burnt chicory. The chicory root cannot be ground until it is burned, and burnt chicory is not an article of commerce until it is ground. Whether or not the article imported was a new preparation, and something other than ground chicory; that is to say, whether it was prepared chicory and not simply ground chicory, was a question of fact that was properly left to the jury. Affirmed. ISAAC S. HURT, Piff. in Err., v. D. M. HOLLINGSWORTH. (See S. C., 10 Otto, 100-104.) Union of equitable and legal causes of action. *In the Federal Courts the union of equitable and legal causes of action in one suit is not permissible under the Process Act of 1792, substantially re-enacted in the Revised Statutes, declaring that in the United States the forms and modes of proceedsuits in equity, in the Circuit and District Courts of ing shall be according to the principles, rules and usages which belong to courts of equity. So held court of Texas in which State the union of equitain a case transferred to the Federal Court from a ble and legal causes of action in one suit is permitted. [No. 49.] Argued Nov. 6, 7, 1879. Decided, Nov. 24, 1879. IN ERROR to the Circuit Court of the United States for the Eastern District of Texas. The case is stated by the court. Messrs. P. Phillips, W. P. Ballinger and W. Hallett Phillips, for plaintiff in error. Mr. James Lowndes, for defendant in error. Mr. Justice Field delivered the opinion of the court: This suit was brought by the plaintiff in a District Court of Texas to quiet his title to certain real property situated in Galveston, in that State. On application of the defendant it was *Head note by Mr. Justice FIELD. removed to the Circuit Court of the United | the court, sitting as a law court, had no jurisStates. The petition, which is the first pleading in a suit according to the practice which obtains in Texas, sets forth that the plaintiff is the owner of the premises; that he purchased them of one Molsberger and wife, in June, 1874; that those parties acquired them in December, 1865, and had subsequently, until the sale to the plaintiff, claimed and held them as a homestead; that in April, 1867, certain parties designated as Marsh, Denman & Co., recovered judgment against Molsberger in the County Court of Galveston on a debt contracted in 1866, while the premises constituted the homestead of himself and family; and in October, 1873, under an execution issued thereon, the premises were sold by the sheriff of the county, for the sum of $30, to the defendant, Hollingsworth, one of the members of that firm, and to him the sheriff executed a deed of the premises, which has been recorded in the county. The petition avers that this deed is a cloud upon the title of the plaintiff, and prays that the cloud may be removed and his title quieted. The defendant filed in the circuit court an answer to this petition, in which he admits that the plaintiff was in possession of the premises, and had obtained a deed of them from Mols berger and wife, who had purchased them in 1865, but denies that they constituted a homestead of Molsberger and family continuously from that time until the alleged sale to the plaintiff, or that they were such homestead when the sale was made by the sheriff to him. The answer then avers that the defendant became the owner of the premises by his purchase; that the plaintiff wrongfully withholds the possession from him, and the rents and profits, which are of the value of $75 a month. He, therefore, prays that the title may be declared to be in him, and that he may have judgment for the possession of the premises and the value of the rents. These pleadings were subsequently amended so as to show the value of the property and the amount of its rents, and in some other particulars not material to the question now presented. The case was considered by counsel and treated by the court as an action at law, and by stipulation made at the December Term of 1875, the parties waived a jury trial and submitted "the matters therein, as well of facts as of law, to the court." The evidence was then heard; and at a subsequent Term the court gave judgment that the plaintiff take nothing by his action, and that the defendant recover the title and possession of the property; and also the sum of $420, as damages for its use and occupation, and have a writ of possession. This judgment was subsequently vacated and a rehearing granted, when a motion was made by the plaintiff to transfer the cause, it being one seeking equitable relief, from the law docket of the court, upon the ground that it had been improvidently placed there by the defendant, to the chancery docket, to be there proceeded with according to the rules and practice of the circuit court sitting in chancery; and also a motion to take from the files of the court so much of the answer as purported to be "a cross suit, reconvention suit, or cross-bill," because diction to grant in that suit the relief prayed by the defendant. These motions were accompanied with a petition for leave to amend the bill of complaint. But the court, considering that the case was on its law docket, and had been submitted for its judgment, refused to sustain the motions. In disposing of them, it observed that it was a court both of law and equity, and had cognizance of both kinds of cases; that though the cause was an equity cause, the court had cognizance of it, and the question presented was, therefore, simply one of regularity of pleadings and proceedings; that the parties had waived all matters of mere form by going to final hearing on the merits and submitting the case to the court, and that their substantial rights had not been violated by this mode of proceeding. The court thereupon heard the evidence presented by the parties, which related principally to the point whether the premises had been abandoned as a homestead at the time of the sheriff's sale mentioned in the pleadings; and rendered a similar judgment to that previously entered. The case is brought here both on writ of error and on appeal, the plaintiff adopting both modes to obviate a possible objection, which otherwise might have been taken to our jurisdiction. There would be great force in the observations of the court below, if the different causes of action presented by the parties could, by the usual forms of proceeding, either at law or in equity, be disposed of in one suit. It might, then, very well be said that as by stipulation the case had been submitted to the court for determination, it was too late to object to the form of the proceedings. If it was an equity case, then it was properly before the court; if it was a case at law, a jury having been waived, it was also properly there. In either view, the relief warranted by the facts would be administered. But here no such disposition could be made of the case presented by the petition and the one presented by the answer. The first is strictly a suit in equity seeking special relief, which only a court of chancery can grant. The second is an action at law for the recovery of real property, with the rents and profits. The two cases are entirely different in their nature, and can be determined, where the distinctions between legal and equitable proceedings are maintained, only in separate suits. In the one case, if the allegations of the plaintiff be sustained, the judgment must be declaratory and prohibitory, adjudging that the deed of the sheriff to the defendant constitutes a cloud upon his title, and enjoining the defendant from asserting any claim to the premises under it. In the other case, if the defendant establishes his averments, the judgment must be for the possession of the premises and the rents and profits. In the Federal Courts such a blending of equitable and legal causes of action in one suit is not permissible under the Process Act of 1792, substantially re-enacted in the Revised Statutes, which declares that in suits in equity, in the Circuit and District Courts of the United States, the forms and modes of proceeding shall be according to the principles, rules and usages which belong to courts of equity. 1 Stat. at L., 276, sec. 2; R. S., sec. 913. This requirement has |