Before proceeding to consider the questions presented by the record, we are called upon to dispose of a preliminary motion. On or before the 6th of December, 1879, the counsel for the respective parties stipulated, in writing, to submit the case on printed arguments under the 20th Rule. The plaintiffs in error ask leave to withdraw their stipulation, and set the cause down for oral argument when reached. We think their showing in support of that motion is insufficient, and that under the rule laid down in Muller v. Dows, 94 U. S., 277 [XXIV., 76], the stipulation must be enforced.

This was a suit in equity, brought by Wright | ler any such exclusive right as was claimed, and and Shorter in the Superior Court of Floyd for that reason dismissed the bill. This decisCounty, Georgia, to restrain the defendants sion was afterwards affirmed by the Supreme from continuing and maintaining a toll-bridge Court of the State on appeal, and to reverse across the Etowah River, at Rome, in that coun that judgment this writ of error was brought. ty. The facts are these: in July, 1851, the In- Accompanying the submission of the case on ferior Court of Floyd County entered into a its merits is a motion to dismiss because no fedcontract with one H. V. M. Miller, by which eral question is involved. the court, for a good and valuable consideration, granted to Miller and his heirs and assigns forever, so far as it had authority for that purpose, the exclusive right of opening ferries and building bridges across the Oostanaula and Eto wah Rivers, at Rome, within certain specified limits. Miller, on his part, bound himself by certain covenants and agreements appropriate to such a contract. He afterwards assigned his rights under the contract, so that when this suit was commenced the complainants, Wright and Shorter, were the owners. Large amounts of money were expended in building and main taining the required bridges, and the franchise is a valuable one. In December, 1872, the commissioners of roads and revenue for the county authorized the defendants to erect and maintain a toll-bridge across the Etowah, within the limits of the original grant to Miller. The bill avers that "The said Board of Commissioners in the making and conferring of said franchise exercised legislative powers conferred upon it by the laws of the State; that the said grant is in the nature of a statute of the Legislature; that the same is an infringement of the said grant and contract made by the said superior (inferior) court to and with the said H. V. M. Miller, under whom complainants hold, and impairs the obligation and validity thereof, and is repugnant to the Constitution of the United States. art. 1, sec. 10, par. 1, which prohibits a State from passing any law impairing the obligation of contracts; and the complainants pray that the said grant to said defendants be by this court annulled and declared void, and the defendants perpetually enjoined from any exercise of the privileges thereby conveyed and granted."

There is no dispute about the facts, and in the answer it is expressly stated that the commissioners of roads and revenue "Are vested with legislative or quasi legislative powers and exclusive powers on this subject and, therefore, *** the order making said bridge and streets public has all the authority, sanction and effect of an Act of the Legislature of the State, and cannot be interfered with by the unauthorized and void act of any public functionary of this State." The parties, by stipulation before the hearing, eliminated everything from the case except so much as was necessary to obtain "A final and legal decision upon the main ques tion, to wit: whether or not the Inferior Court of Floyd County, Georgia, could and did grant to the complainants or their assignors an exclu sive franchise, such as is set up and claimed in the complainants' bill, and whether or not, therefore, the subsequent grant of the bridge franchise, described in the pleadings, by the said Board of Commissioners to the defendants is or is not valid, and the right of complainants to the relief prayed for." It was also agreed that the defendants had title to the lands on which the piers of the bridge were built.

We think, also, that the motion to dismiss must be overruled. It is true, the court below disposed of the case by deciding that the state statutes did not authorize the inferior court to grant Miller an exclusive right to maintain bridges within the designated limits, and that in so doing it gave a construction to a state statute. It is also true that ordinarily such a construction would be conclusive on us. One exception, however, exists to this rule, and that is when the state court "Has been called upon to interpret the contracts of States, though they have been made in the forms of law,' or by the instrumentality of a State's authorized func tionaries in conformity with state legislation." Bk. v. Skelly, 1 Black, 436 [66 U. S., XVIL, 173]. It has been decided in Georgia that the right to receive tolls for the transportation of travelers and others across a river on a public highway is a franchise which belongs to the people collectively. Young v. Harrison, 6 Ga., 130. A grant of this franchise from the public in some form, is, therefore, necessary to enable an individual to establish and maintain a toll bridge for public travel. The Legislature of the State, alone, has authority to make such a grant. It may exercise this authority by direct legislation, or through agencies duly established having power for that purpose. The grant when made binds the public, and is, directly or indirectly, the Act of the State. The easement is a legislative grant, whether made directly by the Legislature itself, or by any one of its properly constituted instrumentalities, Justices of Pike Co. v. Plank Road, 11 Ga., 246. The complainants claim they have such a grant through the agency of the inferior court, acting under the authority of the Legislature. This is denied, because, as is insisted, the Legislature has not given the court power to make an exclusive grant. That was the precise question decided below, and under the exception to the rule just stated is reviewable here.

If the court erred in construing the statute and in holding that there was no contract, then the question is directly presented by the pleadings and the stipulation as to the facts, whether the subsequent action of the commissioners of roads and revenue is, in its legal effect, equivalent to a law of the State impairing the obligaThe superior court decided that the inferior tion of the contract as it was made. In this court of the county had no power to grant Mil-way, it seems to us, a federal question is raised

The statutes relied on by the plaintiffs in eror its instrumentalities not to establish another ror as conferring that authority are:

"Section 33. The inferior courts shall have power to establish ferries, to rate the toll to be taken, as well those already established as any which may hereafter be established, within the several counties within which they may several ly reside; and, generally, all other matters rel- Upon the whole, it seems to us that the Suative to ferries which may, in their judgment, preme Court of the State was right in its decisbe of public utility, any law to the contrary notion, and the judgment is, therefore, affirmed. withstanding."

tract for the building and keeping in repair of J. V. W. VANDENBURGH ET AL., as J. V.

The case is stated by the court. Mr. J. H. Bradley, for appellant: In equity, the indorsement and delivery of the certificates was a valid assignment of all the interest of the assignor, and that interest was subject only to the state of accounts existing between the parties to whom the certificate was given, and the District of Columbia.

These certificates were choses in action. They were assignable at law and in equity. These are familiar principles. Both at law and in equity the assignee took, subject to the state of accounts between the original parties, and all other equities of which he had notice. The effort here is to make him subject to equities between the assignor and third parties, of which he had no notice.

Baldwin v. Ely, 9 How., 599; Talty v. Freed man's Sav. & Trust Co., 93 U. S.,326 (XXIII., 887); Chesley v. Taylor, 3 Gill.,251; McNulty v. Cooper, 3 Gill. & J., 218; Cox v. Sprigg, 6 Md., 274; Bentley v. McKim, 7 H. & J., 501; McNeil v. Bk. 46 N. Y., 325.

But if we are mistaken in this, then we say the defendant was an innocent bona fide purchaser for full value, and was led into these purchases by the indicia of title exhibited by the indorsement of the complainants, viz.: the fact that they had a marketable value and passed by delivery on sale; and they were in the possession of third persons, the papers having this indicia of title, and this by reason of complainant's culpable negligence. If there was any fraud on the part of the person to whom they were first indorsed and delivered, the purchaser cannot be affeeted thereby.

Taylor v. Gitt, 10 Pa., 431; Wheeler v. Hughes, 1 Dall., 23; Metzgar v. Metzgar, 1 Rawle., 227; McMullen v. Wenner, 16 Serg. & R., 21; McNeil v. Bk. (supra); Row v. Dawson, 1 Ves., 331; Stones v. Hourtly, 1 Ves., Sr., 165; Slade's Case, 4 Co..95; Ryall v. Rowles, 1 Ves., Sr., 367; Ryall v. Rolle, 1 Atk., 177; Dearle v. Hall, 3 Russ., 1; Loveridge v. Cooper, 3 Russ., 30; Moore v. Bk., 55 N. Y., 41,

Mr. Jas. G. Payne, for appellees:

improving certain streets in the City of Washington. On that day, their account, amounting to $8,451.88, for work on one of the streets, was audited and allowed, and a certificate of the auditor to that effect was issued to them. On the 17th of February following the complainants borrowed of the defendant, Blumenburgh, the sum of $3,160 for six months, and deposited with him as collateral security the certificate, to be returned upon the payment of the money. The certificate was at this time indorsed by them in blank. When the money became due, they called with the amount and accrued interest at the former place of business of Blumenburgh to pay the debt and take up their certificate; but he had disappeared, and no one there knew when he had left or whither he had gone. The complainants could not find him nor any one representing or acting for him; and, what was of more consequence, they could not find their certificate either. He had clandestinely departed from the city; and they charge in their bill, in substance, that he always intended to cheat and defraud them; and that, without their knowledge, he has disposed of the certificate to some one, who, in conjunction with him, is attempting to wrongfully use it, and thus deprive them of their property.

By the legislation of Congress relating to the District of Columbia, certificates of allowed and audited accounts, like that in question, could be surrendered to a Board of Audit, and certificates of indebtedness against the District received for them; and these latter certificates could be exchanged for interest-bearing bonds of the District. The complainants, informed that the certificate belonging to them had been presented to the Board of Audit by agents of Blumenburgh, or of persons to whom it had been passed, for the purpose either of obtaining money therefor or bonds of the District, filed the present bill to arrest the further use of the certificate, and compel its restitution to them. Learning afterwards that the appellant, N. A. Cowdrey, of New York, claimed to be owner of the certificate, and was seeking to obtain for it from the Board of Audit a certificate of the indebtedness of the District, for which an interest bearing bond could be issued, they amended their bill, and brought him in as a defendant.

The rule which applies to these certificates controls, not only the title which Vandenburgh & Co., could give, but equally the title which Mandel and Blumenberg could give. Cowdrey could take only an equitable title, that is, sub- In his answer he admits the possession of the ject to all the equities between the antecedent certificate, and avers, in substance, that he purparties to the papers, whether he had notice of chased it in the ordinary course of business of such equities or not. The purchaser of such a a broker in Washington for value, with other chose in action must abide by the case of the certificates of a similar character, but does not person from whom he buys. In other words, state what amount he paid for it; that he was the former takes the exact position of the latter. at the time ignorant of the transaction between Davies v. Austen, 1 Ves., Jr., 247; Williamson complainants and Blumenburgh stated in the v. Thomson, 16 Ves., 443; Glyn v. Baker, 13 bill; and that the certificate had the blank inEast, 509; Andrews v. Pond, 13 Pet.,65: Mickles dorsement of the complainants, which justified v. Townsend, 18 N. Y., 575; Norton v. Rose, 2 him in concluding that they had parted with Wash. (Va.), 233; Bush v. Lathrop, 22 N. Y., their interest; and he insists that he is, therefore, 535; Reeves v. Kimball, 40 N. Y., 299; Schafer entitled to protection as a bona fide holder for v. Reilly, 50 N. Y., 66; Bircleback v. Wilkins, 22 value without notice. To the answer a replicaPa., 26; Cutts v. Guild, 57 N. Y., 229. tion was filed, and its affirmative allegations are unsupported by any proofs. The answer cannot, therefore, be taken as evidence on his behalf. He must, therefore, be treated as one standing The complainants, composing the firm of in the place of Blumenburgh, and holding the Vandenburgh & Co., of the District of Colum-certificate subject to the claim and equities of the bia, had, previously to December 6, 1873, entered into contracts with the Board of Public Works of the District for grading, paving and

Mr. Justice Field delivered the opinion of the court:

original holder. The certificate was not a negotiable instrument which could pass by indorsement and delivery. It was not a promise to psy

any sum, nor was it an order upon anyone or upon any fund for the payment of money, or for the delivery of anything of value. It was simply a statement that the account of the complainants for work done by them upon one of the streets of Washington had been audited and allowed by an officer of the city, whose duty it was to ascertain and certify as to the amount and price of the work done by a contractor. Whoever takes such a certificate, whether with or without notice, takes it subject to all the rights and equities of the actual owner, as much so as if it were tangible property in the streets.

The cases where, by law, certificates of a similar character are made negotiable can have no application. It is not pretended that any law of Congress has made the certificates of the auditors of the District of Columbia negotiable, or given to them any special character beyond that which they purport on their face to possess. Nor can any weight be given to the suggestion that, by custom, these instruments are consid ered and treated as negotiable paper in the District. There was no evidence offered of the existence of any such custom, even had such evidence been admissible, to contravene an estab lished rule of law.

That the purchasers of non-negotiable demands, like the certificate here, from others than the original owner of them can take only such rights as he has parted with, except when by his acts he is estopped from asserting his orig. inal claim, is established by all the authorities. He must, in such case, as Lord Thurlow said, abide by the case of the person from whom he buys. Cutts v. Guild, 57 N. Y., 229; Ingraham v. Disborough, 47 N. Y., 421; Bush v. Lathrop, 22 N. Y., 535.

the deposit of the certificate with Blumenburgh; that it was as security for a specified sum of money; and thus imparted notice to all subsequent purchasers or assignees that the pledgee held only a qualified interest in the claim. But having indorsed their name in blank, they virt ually authorized the holder to transfer or dis pose of the certificate by writing an absolute assignment over their signature. Had it, there fore, appeared in this case that Cowdrey paid any money for the certificate, and took it with the assignment which he himself afterwards wrote over the signature of the complainants, we are inclined to think that his defense would have been sustainable. But as he has not shown that he parted with any value for the claim, and no assignment was at the time indorsed over the blank signature, he must be treated as standing in the shoes of his alleged vendor, Blumenburgh. Decree affirmed.

Dissenting, Mr. Justice Swayne and Mr. Justice Miller.

EDWIN C. LITCHFIELD, Appt.,

v.

COUNTY OF WEBSTER, IN THE STATE
OF IOWA, AND JONATHAN HUTCH-
ISON, TREASURER OF SAID County,

AND

CROSS APPEAL.

(See S. C., 11 Otto, 773-781.)

Iowa lands-taxation of-delay in payment—en joining collection.

1. The lands which passed to the bona fide purResolution of Congress, approved March 2, 1861, did not become taxable by the laws of the State before that date.

menced before March; therefore, the lands were not 2. The revenue year of the State for 1861 comtaxable for that year but were for the year 1862, and thereafter.

the tax.

4. In such case a court of equity may enjoin the collection of the extraordinary compensation which the revenue laws of the State give for a delay in payment of taxes. [Nos. 1002, 1003.] Submitted Dec. 22, 1879. Decided Mar. 8, 1880.

If the pledgee, Blumenburgh, had written over the blank indorsement of the complainants a formal assignment to himself of the claim, and in that form had sold the certificate to Cow-chasers from the State of Iowa under the Joint drey for value, it is possible that the latter might have successfully insisted that the complainants were estopped from asserting, as against him. ownership of the claim. The principle is well settled that when the owner of property in any form clothes another with the apparent title or 3. Where a State, under whose authority a tax is levied,sets up a title in itself, to the property taxed, power of disposition, and third parties are there- adverse to that of the true owner, and forbears to by induced to deal with him, they shall be pro- enforce the collection until the title is adjusted, no tected. The case of McNeil v. Bk., in the Court claim can be made by it for extraordinary comof Appeals of New York, contains a clear state-pensation on account of such delay in payment of ment of the law on this head. There, it is true, a certificate of stock was pledged with a blank assignment and power of attorney indorsed, which the pledgee afterwards filled up, and then disposed of the stock. It was evident that the owner contemplated that the blanks in the assignment and power should be filled up, if it should ever become necessary. 46 N. Y., 325. But the principle stated by the court is as applicable where no such intention is manifested. The rights of innocent third parties, as the court there observes, "Do not depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, through negligence or mistaken confidence, he caused or allowed to appear to be vested in the party making the conveyance. Here the complainants could have expressed in their indorsement the purpose of

United States for the District of Iowa.

ROSS appeals from the Circuit Court of the

This was an action in equity, commenced in the court below by Edwin C. Litchfield against the County of Webster, in the State of Iowa, and Jonathan Hutchison, its Treasurer, for the purpose of enjoining respondents from collecting taxes levied for the years 1859 to 1866 inclusive, on lands claimed to be owned by the complainant, and for other relief. The court below decided that the taxes levied for the years 1862 to 1866 inclusive, were legal and constituted a lien upon the lands in question. The court however relieved the complainant from the statutory penalties and simply added