On that day the defendants paid to the assignee Stotesbury, the said balance due, and Stotesbury passed to them the note and certificate, and executed an assignment on the back of said certificate which mentioned the consideration as being one dollar, nothing being said about the consideration being put at one dollar, both Stotesbury and the defendants unquestionably understanding that the assignee was simply conveying to defendants the security in the said seat which he held (fol. 66).

In April, 1879, judgment was obtained against the said Robbins, and the supplementary proceedings in question were instituted and plaintiff appointed receiver. From a judgment of the General Term of the City Court of Brooklyn, affirming a judgment of the Special Term, this appeal was taken by defendant.

Raphael J. Moses, Jr., for appellant.
Archibald C. Shenstone, for respondent.

FINCH, J. We think the right of the judgment debtor to a seat in the Cotton Exchange was property. That it had value was proved and is conceded, and that it could be transferred to a certain class of purchasers under prescribed rules and conditions, is also established. The defendants took is as collateral to the note of Robbins, and held it as security for that debt, and thereby plainly treated it as valuable property. Although of a character somewhat peculiar, its use restricted, its range of purchasers narrow, and its ownership clogged with conditions, it was nevertheless a valuable right capable of transfer and correctly decided to be property. (Hyde v. Wood, 4 Otto, 524; Ritterbund v. Baggett, 42 Superior Ct. 556; Grocers' Bank v. Murphy, 11 Weekly Dig. 538. In re Ketchum, a bankrupt, Daily Reg. Feb. 9, 1880). It was something more than a mere personal license or privilege, for it could pass from one to another of a certain class of persons and belong as fully to the assignee as it did to the assignor.

That characteristic gave it not only value which might attach to a bare personal privilege, but market value which usually belongs only to things which are the subjects of sale.

However it differed from the incorporeal rights earlier recognized and described, it possessed the same essential characteristics.

It could be transferred from hand to hand, and all the time keep its inherent value and be as freely and fully enjoyed by the permitted purchaser as by the original owner.

We should make of it an anomaly, difficult to deal with and to understand, if we failed to treat it as property. The authorities which determine it to be such seem to us better reasoned and more wisely considered than those which deny to it that character, although the subject of ownership, of use and of sale.

Being property it passed to the receiver in supplementary proceedings subject to the lien or right of the defendants. It bears no resemblance to the resulting trust referred to in Underwood v. Sutcliffe, 77 N. Y. 62, for that vested wholly in the creditor for whose benefit it was raised, and no estate or interest, legal or equitable remaining in the debtor, there was nothing for his receiver to take. Nor does it matter that the creditor, by his judgment previously obtained, had gained some hold upon, and right to the seat considered as property.

If he had a double remedy it was not for the defe- dants to dictate which he should pursue.

There is but one claimant and no conflict of title *** (The remainder of the opinion is on other points of no general interest.)

"We think no error was committed in the disposition of the case and the judgment should be affirmed with costs

All concur except MILLER and TRACY, JJ., absent. Judgment affirmed.

JURISDICTION OF FEDERAL COURT AS TO SUPPLEMENTARY PROCEEDINGS.

SUPREME COURT OF THE UNITED STATES. MAY 8, 1882.

EX PARTE BOYD.

The Federal Circuit Court in New York has jurisdiction to entertain proceedings supplementary to execution, as provided by the New York Code of Civil Procedure against a debtor in a judgment in that court after a return of execution unsatisfied.

PETITION for writs of habeas corpus and certiorari.

The opinion states the case.

Roger M. Sherman, for relator.

MATTHEWS, J. It is made to appear by this application that a judgment was recovered in the Circuit Court for the Southern District of New York in favor of the United States against Robert Boyd the petitioner, and Francis O'Rourke, on which execution was issued and returned unsatisfied, except in the sum of $200, leaving due thereon $8,128.92. It was thereupon ordered by the court on motion of the plaintiff's attorney that the matter be referred to Joseph M. Deuel, Esq., a commissioner of the court, "to examine the said Robert Boyd and Francis O'Rourke, and take answers on oath concerning their property and to reduce such answers and examination to writing, and also to examine on oath concerning such property such witnesses as may be offered by the respective parties aud reduce such examination to writing, and report such answers and examination and all his proceedings under and by virtue of this order to this court with all convenient speed, and the said Deuel is hereby appointed a referee in this action for the purpose aforesaid. And it is further ordered that the said Robert Boyd and Francis O'Rourke do appear before the said referee at his office in the post-office building, New York city, on the 22d day of May, 1879, at eleven o'clock A. M., to answer before said referee concerning their property as aforesaid; and for that purpose to appear before the referee from time to time as he shall direct and appoint."

The petitioner moved the court to vacate this order for illegality, which motion the court denied; and being required to submit to the examination, the petitioner refused to take an oath to testify under said order, whereupon on motion of the attorney for the United States, the Circuit Court ordered that he be attached and committed to the custody of the marshal as punishment for a contempt of the court in so refusing to be sworn. From that imprisonment the petitioner seeks to be discharged, and to that end prays for a writ of habeas corpus, and also for a writ of certiorari from this court to the Circuit Court, to bring up the record of the proceedings complained of. The grounds on which the right to this relief is predicated are set forth in his petition as follows:

"Your petitioner is informed and believes that proceedings supplementary to execution wherein your petitioner is restrained of his liberty are not, by the laws of the State of New York, a remedy in commonlaw causes to reach the property of the judgmentdebtor allowed in actions at law in the courts of the United States by section 916 of the Revised Statutes of the United States; but on the contrary, that these proceedings are by the laws of the State of New York prescribed as part of a code to abolish common-law causes as such, and to amalgamate and indiscriminate common-law causes and suits in equity, and to confer

upon the courts of that State indifferently in the same action powers in actions at law and in equity. Your petitioner is informed and believes that the application of this provision of that Code to the courts of the United States is not authorized by any act of Congress and is in conflict with the provisions of Article III, § 2 of the Constitution of the United States, which preserves and establishes the distinction between relief at law and in equity. Your petitioner therefore avers and charges that the said Circuit Court was and is wholly without jurisdiction in the premises, and that therefore all its proceedings therein are null and void." The material portions of the present statutes of New York referred to and which were in force at the time of the adoption of the Revised Statutes of the United States, are as follows:

"PROCEEDINGS SUPPLEMENTARY TO EXECUTION.

§ 292. (1) When an execution against property of the judgment-debtor or of any one of the several debtors in the same judgment, issued to the sheriff of the county where he resides or has a place of business, *** is returned unsatisfied in whole or in part, the judgment-creditor, at any time after such return made, is entitled to an order from a judge of the court * * *requiring such judgment-debtor to appear and answer concerning his property before such judge at a time and place specified in the order, within the county to which the execution was issued. * * *

"(3) On an examination under this section either party may examine witnesses in his behalf, and the judgment-debtor may be examined in the same manner as a witness.

*

66

(5) No person shall, on examination pursuant to this chapter, be excused from answering any question on the ground that his examination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution. Nor shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment, or transfer of his property for any purpose; but his answer shall not be used as evidence against him in any criminal proceeding or prosecution.

"§ 295. Witnesses may be required to appear and testify in any proceedings under this chapter in the same manner as upon the trial of an issue.

§ 296. The party or witness may be required to attend before the judge or before a referee appointed by the court or judge; if before a referee, the examination shall be taken by the referee and certified to the judge. All examinations and answers before a judge or referee under this chapter shall be on oath.

"§ 298. The judge may also by order appoint a receiver of the property of the judgment-debtor in the same manner and with the like authority as if the appointment was made by the court, according to section 244*. But before the appointment of such receiver the judge shall ascertain, if practicable, by the oath of the party or otherwise, whether any other supplementary proceedings are pending against the judgment debtor, and if such proceedings are so pending the plaintiff therein shall have notice to appear before him, and shall likewise have notice of all subsequent proceedings in relation to said receivership. No more than one receiver of the property of a judgment debtor shall be appointed. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt from execution, and any interfer

* *

ence therewith. Whenever the judge shall grant an order for the appointment of a receiver of the property of the judgment debtor, the same shall be filed in the office of the clerk of the court of the county where the judgment-roll in the action * is filed; and the said clerk shall record the order in a book to be kept * * * a certified copy of said order shall be delivered to the receiver named therein, and he shall be vested with the property aud effects of the judgment debtor from the time of the filing and recording of the order, as aforesaid. The receiver of the judgment debtor shall be subject to the direction and control of the court in which the judgment was obtained upon which the proceedings are founded. * ** But before he shall be vested with any real property of such judgment debtor, a certified copy of said order shall also be filed and recorded in the office of the clerk of the county in which any real estate of such judgment debtor, sought to be affected by such order, is situated, and also in the office of the clerk of the county in which such judgment debtor resides.

"§ 299. If it appear that a person or corporation, alleged to have property of a judgment debtor, or indebted to him, claims an interest in the property adverse to him, or denies the debt, such interest or debt shall be recoverable only in an action against such person or corporation by the receiver, but the judge may, by order, forbid a transfer or other disposition of such property or interest till a sufficient opportunity be given to the receiver to commence the action and prosecute the same to judgment and execution; but such order may be modified or dissolved by the judge granting the same, at any time, on such security as he shall direct.

"§ 300. The judge may, in his discretion, order a reference to a referee agreed upon by the parties, or appointed by him, to report the evidence or the facts, and may, in his discretion, appoint such referee in the first order, or at any time.

"§ 302. (1) If any person, party or witness, disobey an order of the judge or referee duly served, such person, party or witness, may be punished by the judge as for a contempt. (2) And in all cases of commitment under this chapter * ** the person committed may, in case of inability to perform the act required or to endure the imprisonment, be discharged from imprisonment, by the court or judge committing him, or the court in which the judgment was rendered on such terms as may be just."

Section 916 of the Revised Statutes, which repeats in this respect the provisions of section 6 of the act of June 1, 1872, "to further the administration of justice," is as follows: "The party recovering a judgment in any common-law cause, in any Circuit or District Court shall be entitled to similar remedies upon the same, by execution or otherwise, to reach the property of the judgment debtor as are now provided in like causes by the laws of the State in which such court is held, or by any such laws hereafter enacted which may be adopted by general rules of such Circuit or District Court, and such courts may from time to time, by general rules adopt such State laws as may hereafter be in force in such State in relation to remedies upon judgments, as aforesaid, by execution or otherwise."

This provision of the Revised Statutes merely embodies and extends the principle contained in the 14th section of the judiciary act of 1789, 1 Stat. at Large, 81, which, with the subsequent legislation of Congress in furtherance of it, has been repeatedly the subject of consideration in this court. Palmer v. Allen, 7 Cranch, 550; Wayman v. Southard, 10 Wheat., 1; Bank of the United States v. Halstead, id 51; Boyle v. Zacharie, 6 Peters, 654; Beers v. Haughton, 9 id. 329; Ross v. Duval, 13 id. 57; U. S. v. Knight, 14 id. 312; Duncan v.

Darst, 1 Howard, 304; McCracken v. Hayward, 2 id. 611; Homer v. Brown, 16 id. 363.

It is the settled doctrine of this court, as established and explained by these authorities, that the power of Congress under the Constitution, as well as that of the courts of the United States acting under its authority, extends to the adoption of the laws of the several States, not only as to the nature and form of writs of execution for the enforcement of judgments, but also as to all proceedings thereupon. As in Beers v. Haughton, supra, where it was held to include proceedings on the part of the judgment debtor for his exoneration under insolvent laws of the state from imprisonment under a ca. sa., and the consequent discharge from liability of the special bail.

It is contended however on behalf of the present petitioner, that the proceedings under which he has been committed to the custody of the marshal and restrained of his liberty, in their origin and nature are of equitable jurisdiction exclusively, as distinguished from proceedings at common law, which, by the prohibitions of the Constitution of the United States, Congress cannot lawfully authorize the courts of the United States to administer except by bill in chancery.

The jurisdiction of the courts of chancery in New York, exercised prior to the adoption of its present code, which authorized a discovery of assets from a judgment debtor in aid of an execution, was statutory. It was conferred and defined by secs. 38 and 39 of title II., art. II., 2 Rev. Stats. of New York, 173-174. It was therein provided, that "whenever an execution against the property of a defendant shall have been issued on a judgment at law, and shall have been returned unsatisfied, in whole or in part, the party suing out such execution may file a bill in chancery against such defendant, and any other person, to compel the discovery of any property or thing in action belonging to the defendant, and of any property, money, or thing in action due to him or held in trust for him; and to prevent the transfer of any such property, money, or thing in action, or the payment or delivery thereof to the defendant, except where such trust has been created by, or the fund so held in trust has proceeded from, some person other than the defendant himself. The court shall have power to compel such discovery and to prevent such transfer, payment, or delivery, and to decree satisfaction of the sum remaining due on such judgment out of any personal property, money, or things in action belonging to the defendant, or held in trust for him, with the exception above stated, which shall be discovered by the proceedings in chancery, whether the same were originally liable to be taken in execution at law or not."

It is said in argument by Mr. B. F. Butler, in Mitchell v. Bunch, 2 Paige Ch. 606 (22 Amer. Dec. 671), that these provisions of the Revised Statutes were passed in affirmance of the doctrine of Hadden v. Spader, 20 Johns. 554. That case however did not go upon any idea that a bill in equity would lie against a judgment debtor for a general discovery of assets, but merely upon the ground of a jurisdiction to discover and apply equitable assets, specifically described; the question being, as it was put by Woodworth, J., "whether a debtor, who has placed his funds in the hands of a trustee, where they cannot be reached by an execution at law, can put his creditor at defiance and enjoy the benefit of these funds, which ought to be appropriated to the payment of his debts."

This case was preceded by the decisions of Chancellor Kent in Hendricks v. Robinson, 2 Johns. Ch. 283; Brinkerhoff v. Brown, 4 id. 671; and McDermutt v. Strong, id. 687.

In Hendricks v. Robinson, supra, the chancellor said: "I have no doubt that this court can and ought to lend its aid whenever that aid becomes requisite to enforce

a judgment at law, by compelling a discovery and account, either as against the debtor or as against any third person who may have possessed himself of the debtor's property and placed it beyond the reach of an execution at law. The preliminary step which seems to be required is that the judgment creditor should have made an experiment at law, and bound the property by actually suing out execution;" citing Angell v. Draper, 1 Vern. 399; Lord Nottingham cited in 1 P. Wms. 445; Stileman v. Ashdown, 2 Atk. 476; Shirly v. Watt, 3 id. 200.

In Brinkerhoff v. Brown, supra, he said that it was the settled rule in chancery that the plaintiffs must show that they have taken out execution at law and pursued it to every available extent against the property.before they can resort to that court for relief; that the presumption is that the court which renders judgment is competent to enforce it; that "if he seeks aid as to real estate, he must show a judgment creating a lien upon such estate; if he seeks aid in respect to personal estate, he must show an execution giving him a legal preference or lien upon the chattels." The opinion cites the case of Taylor v. Hill, 1 Eq. Cas. Abr. 132, pl. 15, before Lord King in 1705, where the bill having been filed before execution for discovery of particular specified effects of the judgment debtor in the hands of a third person, a demurrer was allowed; but the chancellor said it would not lie against the debtor himself, nor against a third person to have a general discovery. And in McDermott v. Strong, supra, the chancellor said: "I regard the law to be clearly settled, that before a judgment creditor can come here for aid against the goods and chattels of his debtor, or against any equitable interest which he may have therein, he must first take out execution, and cause it to be levied or returned, so as to show thereby that his remedy at law fails, and that he has also acquired by that act of diligence a legal preference to the debtor's interest."

It is quite apparent from this review of the decisions upon the point in New York, prior to the adoption of the provisions of the Revised Statutes of that State on the subject, that the latter gave a much more extensive remedy than was supposed to exist by virtue of the customary jurisdiction of the chancery court, particularly in requiring debtor when sought, from a judgment a general discovery of assets, legal and equitable, for the purpose of enabling the judgment creditor to apply them to the payment of his judgment.

In Mitchell v. Bunch, supra, Chancellor Walworth seemed to regard the jurisdiction of chancery independent of the statute as equally extensive, and refers to the case of Edgell v. Haywood, 3 Atkyn, 352, decided by Lord Chancellor Hardwicke in 1746, as a direct authority in support of the bill in the case before him, and as a decision which had never been questioned; but the case before Lord Hardwicke was not that of a bill for general discovery, but for a discovery in respect to assets alleged to be in the hands of the co-defendant as executor, applicable to the payment of a legacy which belonged to the judgment debtor under a will, and which the complainant was entitled to have appropriated to the payment of his judgment, by virtue of the provisions of the act of 10 Geo. 2, c. 26, for the relief of insolvent debtors, under which the debtor's person had been discharged, as an insolvent, from liability to be taken in execution. The right to the remedy in equity in that case was put distinctly upon the ground that the method by which the judgment creditor might have reached the property of his debtor by proceeding at law against his person, having been taken away by the statute, the choses in action were equitable assets which a court of chancery would appropriate to the benefit of his reditors.

Mr. Hare, in his Treatise on Discovery, ch. 5, sec. 3, p. 84, ed. 1876, states that "there are some

early cases which appear opposed to the rule which has been stated in the preceding sections, that a discovery will only be given to be used as evidence at a trial," but adds that "the cases which are cited in support of a jurisdiction of this nature seem to be chiefly bills for relief raising a different and substantive equity." He refers however to Mountford v. Taylor, 6 Ves., Jr., 788, as a case where Lord Eldon seems to have acted upon the doctrine of a general right of the creditor to a discovery, in order to make his judgment available, in consequence of the admission of its correctness by counsel. That was the case of a bill by judgment creditors, who had sued out elegits for a discovery of freehold estates, charging that the defendant upon his election as a member of Parliament previously to the judgment gave in his qualification, and that if the estates composing it were conveyed away since, it was without consideration. The lord chancellor remarked on the hearing that he was not quite clear that such a bill must not allege that at a given time the defendant was seized of given lands (not simply suggesting, as a fishing bill, that at some time or other he had some land); and that he conveyed those lands away fraudulently to put them out of the reach of this creditor. Afterward he overruled the demurrer, saying: "But the bill charges that the defendant delivered in a schedule of the particulars of his estates, whereby he made out his qualification, and that he has conveyed them without consideration, as evidence that he has lands liable to execution, as they may be unquestionably. Upon that I think he must answer."

It thus appears that the proceeding in aid of execution in its present form in New York, as well as that in which it was administered under the Revised Statutes by the Court of Chancery, was a statutory process, and did not form any part of that jurisdiction in equity, which as vested in the courts of the United States by the Constitution, is assumed to be inaliena

ble. And the remaining question therefore becomes not so much whether Congress may, by appropriate legislation, transmute an equitable into a legal procedure, as whether it can in anywise change the rules of pleading and procedure as to courts, either of law or equity, in force in England at the time of the adoption of the Constitution, or whether, by the adoption of that instrument, all progress in the modes of enforcing rights, both at law and in equity, was arrested and their forms forever fixed. To state the question is to answer it.

The conclusion will not be less clear however if we concede that the proceeding in question belongs historically, as to its form, to the administration of chancery courts. If we regard its nature it will be perceived that it is, so far as it relates merely to the discovery of the debtor's assets, a collateral and auxiliary remedy. If the discovery results in ascertaining the existence of property subject to levy under execution, then the remedy at law is perfectly restored. Or if by lawful power over the person of the debtor, he may be compelled by a court of law to apply his property to the payment of his creditor's claim, the satisfaction is complete. If on the other hand other parties with adverse claims are revealed, or obstacles to the pursuit of the legal rights of the judgment creditors are brought to light, or the interests to be subjected are not cognizable at law, or the equities required to be marshalled, it may be that relief can only then be had in a court of equity, where all parties can be made to appear, all conflicting claims adjudicated, and the complete remedy moulded to fit the circumstances of the

case.

But here we have nothing to do with any question but that of discovery. The only relief sought is knowledge of property belonging to the debtor, applicable either at law or in equity, to the payment of the cred

itor's judgment. What shall be done after that knowledge has been acquired is to be determined upon the circumstances as they may then appear, and cannot now be considered. For the proceeding for discovery is distinct and entirely separable from the subsequent relief, if any shall then be sought.

Now it is of the essence of the jurisdiction of courts of equity, in bills of discovery merely, that it is in aid of the legal right; and it is a fundamental rule, prescribed for the exercise of that jurisdiction, in the words of Story, Eq. Jur., § 1,495, that "courts of equity will not entertain a bill for discovery to assist a suit in another court, if the latter is of itself sompetent to grant the same relief; for in such a case the proper exercise of the jurisdiction should be left to the functionaries of the court where the suit is depending." It follows then that although at one time courts of equity would entertain bills of discovery, in aid of executions at law, because courts of law were not armed with adequate powers to execute their own process, yet the moment those powers were sufficiently enlarged by competent authority to accomplish the same beneficial result, the jurisdiction in equity if it did not cease as unwarranted, would at least become inoperative and obsolete. A bill in equity to compel disclosures from a plaintiff or defendant of matters of fact peculiarly within his knowledge, essential to the maintenance of the legal rights of either in a pending suit at law would scarcely be resorted to unless under special circumstances, now when parties are competent witnesses and can be compelled to answer under oath all relevant interrogatories properly exhibited; nor to compel the production of books, deeds, or other documents important as instruments of evidence when the court of law in which the suit is pending is authorized by summary proceedings to enforce the same right.

But even conceding that such enlargements of the powers of courts of law do not deprive courts of equity of jurisdiction theretofore exercised, no one has ever supposed that they were illegitimate intrusions upon the exclusive domain of equity, or produced any confusion of boundaries between the two systems. No one has ever questioned the authority of Congress to make parties to a suit competent witnesses, or to confer upon courts of law power to compel the production of books and papers, because discovery was an ancient head of equitable jurisdiction. It is the very office of the principle of equity to supply defects in the law, and it is not to be regarded as anomalous that the technical law should in the course of its necessary development incorporate into its own organization improvements in procedure first introduced as equitable remedies. It is this very capacity of parallel growth that constitutes and perpetuates the harmonious coexistence of the two departments of our jurisprudence. Its history furnishes many examples and illustrations of this tendency and of its results.

And certainly there is nothing in the nature of an examination of a judgment debtor upon the question as to his title to and possession of property applicable to the payment of a judgment against him, and of the fact and particulars of any disposition he may have made of it, which would render it inappropriate as a proceeding at law under the orders of the court where the record of the judgment remains, and from which the execution issues. Such examinations are familiar features of every system of insolvent and bankrupt laws, the administration of which belongs to special tribunals, and forms no necessary part of the jurisdiction in equity. It is a mere matter of procedure not involving the substance of any equitable right, and may be located by legislative authority to meet the requirements of judicial convenience. Whatever logical or historical distinctions separate the jurisdictions of equity and law, and with whatever effect those distinctions may be supposed to be recognized in the

Constitution, we are not of opinion that the proceeding in question partakes so exclusively of the nature of either that it may not be authorized indifferently as an instrument of justice in the hands of courts of whatever description.

The application for the writs of habeas corpus and certiorari is accordingly denied.

UNITED STATES SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW-IMPAIRING CONTRACT — EXEMPTING MUNICIPAL PROPERTY FROM SEIZURE FOR

DEBT.-Water-works owned by a city were not subject to execution on judgments against the city. A local law was enacted creating a corporation which was to own the water-works, and issue to the city stock to a certain amount which was declared not to be liable for the debts of the city. Held, that the provision as to exemption from liability for debts was not invalid as to existing debts as impairing the obligation of a contract. The water-works were not liable to execution for judgments against the city. The legislature intended to change the form of the city's ownership of that property into that of shares of the capital stock of a company, of which it was at first to be sole owner. These shares represented the water-works of the city. They represented nothing else. The city owned the shares, and the legislature continued in this property in the hands of the city as shares of stock the same exemption which belonged to the property represented by these shares. In doing this no right of the creditors at the time they made their contract or the passage of the act was impaired. No property to which they then had a right to look for payment of their debt, or as a means of enforcing their contract has been withdrawn from the force of its obligation. They are placed by this law in no worse condition than they were before. The cases of Green v. Biddle, 8 Wheaton, 1; Bronson v. Kinzie, 1 How. 311; McCracken v. Haywood, 2 id. 608, distinguished. Decree of U. S. Circuit Court, Louisiana, reversed. City of New Orleans v. Morris. Opinion by Miller, J. [Decided May 1, 1882.

DAMAGES ON BREACH OF CONTRACT FOR SALE OF MACHINES.-When a party had made a sale of real estate, the other party to pay for it in machines at certain specified values and in a specified condition, in good repair and free from liens, and action was brought by the vendor of the real estate upon a breach of the contract on the part of the purchaser, held that the price fixed in the contract at which the plaintiff agreed to take the machines, whether the transaction is viewed as an exchange of property at assumed valuations, or as a purchase and sale for money, is not conclusive between the parties upon the question of damages recoverable for a breach. If there had been a total failure on the part of the defendants below to comply with the contract, and they had refused to deliver any of the machines specified, the damages to the plaintiff would have been the amount of money with which at the time of the breach he could have supplied himself by purchase from others with the same number of similar articles of equal value. If the market price had in the meantime advanced the recovery would be for more; or if it had fallen it would be for less than the contract price; the rule to measure the loss in such cases being the difference between the contract and the market price. The same rule applies where the breach is partial and not total; and to make good the warranty as to condition, the cost of repairs; and as to freedom from liens, the cost of removing them, if that be the difference in actual value between the article as warranted and the article

as delivered, is all that can be properly recovered as damages, unless in exceptional cases of special damage. Whatever that difference in the actual circumstances of the case is shown to be, is the true rule and measure of damages. Where the articles delivered are not what the contract calls for, as in the case of defective machines, the measure of the vendee's damages is what it would cost to supply the deficiency without regard to the contract price. Benjamin v. Hillard, 23 How. 149-167. Judgment of U. S. Cir. Ct., Nebraska reversed. Marsh v. McPherson. Opinion by Matthews, J.

TION BY TOWN-BONA FIDE HOLDER RECITALSESTOPPEL-A town having authority by statute to issue bonds in aid of a railroad, by its popular vote directed the issue of negotiable bonds in aid of the railroad, and they were signed, sealed and delivered to the railroad company by the constituted authorities of the town. Such bonds contained recitals that the requirements of the statute had been complied with. The statute did not make it obligatory on the town to impose conditions upon the performance of which its liability should depend. It conferred simply the right to do so, leaving the town at liberty to prescribe conditions or to make an unconditional subscription. Held, that after the bonds had passed into the hands of bona fide holders for value, the town could not escape liability by showing that conditions or some of them imposed by popular vote had not been complied with upon the part of the railroad company. The town having power, under the statute, to make an unconditional subscription, and to issue and deliver its bonds in advance of the construction of the road, what was said in Brooklyn v. Ins. Co., 99 U. S. 370, may be repeated here: "It is now too late for the town to claim exemption, as against bona fide purchasers, upon the ground that the railroad company disregarded its promise to construct the road, or upon the ground that its own officers delivered the bonds in violation of special conditions of which the purchasers had no knowledge or notice, either from the statute or otherwise." Judgment of U. S. Circ. Ct. N. D. Illinois, reversed. American Life Insurance Co. v. Town of Bruce. Opinion by Harlan J. [Decided April 24, 1882.]

MARYLAND COURT OF APPEALS ABSTRACT. JUNE 1881.*

BANKRUPTCY - SUBSCRIPTION TO CORPORATE STOCK NOT FIDUCIARY DEBT.-Section 5117 of the Federal Revesed Statute, provides that "no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by any proceedings in bankruptcy." In an action against a discharged bankrupt to recover a balance due on a subscription to the stock of a corporation, held, that there was nothing of a fiduciary relation or character created by the subscription more than exists in the ordinary relation of debtor and creditor; and certainly none that brought it within the meaning of the statute. See Chapman v. Forsyth, 2 How. 202; Neal v. Clark, 85 U. S. 704; Cronan v. Cotting, 104 Mass. 245; Woolsey v. Cade, 54 Ala. 378; Hennequin v. Clews, 77 N. Y. 427. Morrison v. Savage. Opinion by Alvey, J.

PARTIES ACTION BY TREASURER OF CORPORATION. -A. being indebted to the Baltimore and Ohio Railroad Company, gave her note for the amount, payable *To appear in 56 Maryland Reports.