We see no error in the judgment of the Circuit all doubt that the liability of the Shawnee Court and it is affirmed. Cited 8 Biss., 264. County Bank, if any liability exists, is that of an accommodation indorser or surety for Parmalee, its Cashier, and that this was known to the St. Louis Bank when it made the discount. The note itself bears upon its face the most THE WEST ST. LOUIS SAVINGS BANK, unmistakable evidence of this fact. It is made Submitted Nov. 21, 1877. Decided Dec. 3, 1877. APPEAL from the Circuit Court of the United payable directly to the St. Louis Bank, and the Shawnee Bank appears only as an indorser in blank of a promissory note before indorsement by the payee and while the note is in the hands of the maker. Such an indorsement by a bank is, to say the least, unusual, and sufficient to put a discounting bank upon inquiry as to the authority for making it. But we are not left in this case to inquiry or presumption. Both the correspondence and the testimony of the Cashier of the St. Louis Bank show conclusively that this was the understanding of the parties. Parmalee, in transmitting the note for discount, wrote for himself, and not as Cashier. He spoke of his own note, and authorized a draft upon himself personally for the interest. He pledged his own stock for the payment of the note. Wernse, the St. Louis Cashier, says the negotiations opened with an application by Parmalee for a loan to enable him to pay for his stock in the States for the District of Kansas. Shawnee Bank, upon the pledge of the stock This was an action in equity commenced in as collateral. There is not a single circumthe court below by the appellant, a Corporation stance tending, in any manner, to prove that the organized under the laws of Missouri and do- transaction was looked upon as a re-discount ing business at St. Louis, against George F. for the Shawnee Bank, except the entries in the Parmalee, as maker, and the appellee, the Shaw-books of the St. Louis Bank, and these are far nee County Bank, as indorser, upon a promissory note for $3,000 and to enforce a pledge of five hundred shares of stock of the Shawnee County Bank, which had been transferred to the complainant by Parmalee as collateral. from sufficient to overcome the positive testimony as to what the agreement actually was. This being the case, the question is directly presented as to the liability of the Shawnee County Bank upon such an indorsement. It is The note in question was the individual note certain from the testimony that no indorsement of Parmalee, Cashier of the Shawnee County of the kind was ever expressly authorized by Bank, and was made payable to the order of the Bank. None of the officers, except Parthe complainant. Parmalee indorsed the note malee and Hayward, the Vice President, ever "G. F. Parmalee, Cashier," and delivered it knew that it had been made until long after to the complainant, together with a certificate the last discount had been obtained. The books of stock in the Shawnee County Bank, issued of the Shawnee Bank contained no evidence of to and owned by Parmalee. The consideration such a transaction, and the accounts of the St. of the note was a loan of money by the plaint-Louis Bank, as rendered, gave no indication of iff, to Parmalee, who, at the time of obtaining the actual character of the paper discounted. the loan, advised the complainant that he intended to use the money borrowed, to pay for the stock he had subscribed for in the Shawnee County Bank. Parmalee failed to pay the note. The court below rendered judgment against Parmalee for the amount of the note, with interest, and ordered that if he failed to satisfy the judgment, the stock should be sold. The bill was dismissed as to the Shawnee County Bank. The complainant appealed to this court. The case further appears in the opinion. Messrs. Henry Hitchcock, George W. Lubke and Preston Player, for appellant, cited Ang. & Ames, Corp., 1st ed., 313; Fleck ner v. Bk., 8 Wheat., 338; Morse, Bank., 148; Barnes v. Bk., 19 N. Y., 152; Ballston Spa Bk. v. Marine Bk., 16 Wis., 120; Ridway v. Bk., 12 Serg. & R., 266; Albert v. Bk., 1 Md. Ch., 407; Thatcher v. Bk., 5 Sandf., 121. Mr. Geo. S. Brown, for appellees. Mr. Chief Justice Waite delivered the ion of the court: Ordinarily, the cashier, being the ostensible executive officer of a bank, is presumed to have, in the absence of positive restrictions, all the power necessary for such an officer in the transaction of the legitimate business of banking. Thus, he is generally understood to have authority to indorse the commercial paper of his bank and bind the bank by the indorsement. So, too, in the absence of restrictions, if he has procured a bona fide re-discount of the paper of the bank, his acts will be binding, because of his implied power to transact such business; but certainly he is not presumed to have power, by reason of his official position, to bind his bank as an accommodation indorser of his own promissory note. Such a transaction would not be within the scope of his general powers; and one who accepts an indorsement of that character, if a contest arises, must prove actual authority before he can recover. There are no presumptions in favor of such a delegation of opin-power. The very form of the paper itself carries notice to a purchaser, of a possible want of power to make the indorsement, and is sufficient The testimony in this case satisfies us beyond If he fails to avail to put him on his guard. himself of the notice, and obtain the information which is thus suggested to him, it is his own fault, and as against an innocent party he must bear the loss. The decree of the Circuit Court is affirmed. UNITED STATES, Piff. in Err., V. TWO HUNDRED BARRELS OF WHISKY (See S, C., 5 Otto, 571-576.) Forfeiture for neglect to gauge or stamp distilled spirits. 1. Property owned by and found upon the premises of a rectifler or wholesale liquor dealer, cannot be seized as forfeited to the United States, under section 96 of the "Act Imposing Taxes on Distilled Spirits," etc., passed July 20, 1868, 15 Stat. at L., 164, because such rectifier or wholesale liquor dealer has knowingly and willfully neglected, omitted or refused to cause packages of distilled spirits containing more than twenty gallons each, filled for shipment or sale on his premises, to be gauged, inspected and stamped, in accordance with the provisions of section 25 of the same Act. 2. The regulations of the Commissioner do not amend the law; they may aid in carrying it into execution, as it exists, but cannot change its positive provisions. [No. 91.] Argued Nov. 15, 1877. Decided Dec. 3, 1877. APPEAL from the Circuit Court of the Unit ed States for the District of Louisiana. April 18, 1874, S. A. Stockdale, as Collector of Internal Revenue for the First Collection District of Louisiana, seized the property in controversy in this suit, said to be owned by Otto H. Karstendick, as forfeited to the United States. The property was at once libeled by the United States Attorney for Louisiana, who, March 27, 1875, filed an amended libel, setting out the causes of seizure and forfeiture. The libel was dismissed on demurrer and the United States 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. J. D. Rouse, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: This case presents the question, whether property owned by and found upon the premises of a rectifier or wholesale liquor dealer can be seized as forfeited to the United States, under section 96 of the "Act Imposing Taxes on Distilled Spirits," etc., passed July 20, 1868, 15 Stat. at L., 164, because such rectifier or wholesale liquor dealer has knowingly and willfully neglected, omitted or refused to cause packages of distilled spirits containing more than twenty gallons each, filled for shipment or sale on his premises, to be gauged, inspected and stamped, in accordance with the provisions of section 25 of the same Act. Section 25 provides that, whenever any cask or package of rectified spirits shall be filled for -shipment, sale or delivery on the premises of any rectifier who shall have paid the special tax required by law, it shall be the duty of a United States Gauger to gauge and inspect the same, and place thereon an engraved stamp of | a particular kind; and whenever any cask or * * * Section 96 provides, "That if any rectifier or wholesale liquor dealer *** shall knowingly and willfully omit, neglect or refuse to do or cause to be done any of the things required by law to be done in the carrying on or conducting of his business, or shall do anything by this Act prohibited, if there be no specific penalty or punishment imposed by any other section for the neglecting, omitting or refusing to do, or for the doing or causing to be done, the thing required or prohibited, he shall pay a all distilled penalty of $1,000, and shall be spirits or liquors owned by him, or in which he has any interest as owner, forfeited to the United States." Section 57 provides, that "All distilled spirits found, after thirty days from the time this Act takes effect, in any cask or package containing five gallons or more, without having thereon each mark and stamp required therefor by this Act, shall be forfeited to the United States." * * * * * * Section 25 does not specifically impose the duty upon the rectifier or wholesale dealer, of causing or procuring the filled casks to be gauged, inspected or stamped. It is made the duty of the gauger to do the gauging, inspect dealer, to cause it to be done. If there were ing and stamping, but not in terms of the If, then, it is found that by some other section of the Act a penalty is imposed upon the rectifier or wholesale dealer, as a consequence of the failure of the gauger to stamp the casks filled on his premises for shipment, sale or delivery, it may fairly be presumed that this was the penalty he was to suffer for neglecting to procure the stamping to be done; for the gaug ing and inspecting, under the law, are only preliminary to the stamping. The only neglect he could be charged with under section 96 would be a failure to make known at the proper office that there were on his premises packages requiring the action of the gauger, under section 491 DANIEL MITCHELL, Appt., v. CATHARINE MOORE, by her next Friend. and Husband, ALFRED L. D. MOORE. (See S. C., 5 Otto, 587-591.) 25. Now, section 57 provides that if packages of distilled spirits are found on his premises, containing five gallons or more each, which do not have upon them each mark or stamp required by the law, they shall be forfeited. This, then, is a specific penalty provided for the failure to procure or cause the stamping to be done on packages of five gallons and upward; and it Trustee, when liable for losses-demand for genfollows the packages wherever found. The unstamped packages in this case contained each twenty gallons or more. It has been contended, however, that this special provision of section 57 applies only to dis tilled spirits on hand when the Act of 1868 was passed. Such seems to have been the opinion of Judge Ballard, of the Kentucky District as reported in the case of U. S. v. 37 Barrels of Apple Brandy, 11 Int. Rev. Rec., 136; but since that time, in 1871, Judge Lowell, of the Massachusetts District, has decided the other way. U. S. v. 95 Barrels of Distilled Spirits, 14 Int. eral relief. 1. Where the trust fund was always used by the trustee as his own, and all investments were made by him in his own name, such trustee cannot charge the trust with the losses he has sustained from payments to him in Confederate money. 2. Under the prayer for general relief in a bill in equity, such relief as is necessary in order to carry into full effect the particular relief demanded, will be granted. [No. 116.] Argued Nov. 22, 1877. Decided Dec. 3, 1877. Rev. Rec., 6. Judge Knowles, of the Rhode APPEAL from the Circuit Court of the United Island District, afterwards followed this ruling of Judge Lowell. U. S. v. 34 Barrels Distilled Spirits, 13 Int. Rev. Rec., 188. Other able district judges have decided that section 96 did apply to this class of omissions, but it nowhere appears from their opinions that their attention was called to the provision of section_57. U. S. v. One Rectifying Establishment, 11 Int. Rev. Rec., 45, decided in 1869 in the Northern District of Mississippi, and U. S. v. 133 Casks Distilled Spirits, decided not long after in the California District, 11 Int. Rev. Rec., 191. The Circuit Judge in this case has decided in accordance with the opinions of Judges Lowell and Knowles, and held that section 57 did apply. The rulings of two Commissioners of Internal Revenue are to the same effect, one dated September 10, 1869. 10 Int. Rev. Rec., 97, and the other, May 13, 1871, 13 Int. Rev. Rec., 170; and it seems to us that this is the proper construction of the law. It is true that the clause referred to is found in a section of the statute which relates especially to spirits on hand when the law was passed; but it is general in its terms, and broad enough to cover the case. As was well said by Judge Lowell in the case against 95 barrels of whisky, To limit the meaning will not only require us to read 'Act,' as if it were 'section,' but to disregard each;' because there is but one particular stamp required by this section, and this would naturally be mentioned as the stamp required by the section,' or some such expression." And again, as is also said by the same Judge, "It is proper and usual that the goods which are not stamped should be forfeited, and it is so provided in respect to cigars and tobacco, by sections 70 and 90; but there is no provision for forfeiting unstamped spirits, unless it be the one in question." The rules and regulation which the Commissioner of Internal Revenue is authorized by section 2 to prescribe cannot have the effect of bringing the case under the operation of the penalty provided in section 96, if it was already covered by section 57. The regulations of the Department cannot have the effect of amending the law. They may aid in carrying the law as it exists into execution, but they cannot change its positive provisions. The judgment of the Circuit Court is affirmed. bama. States for the Southern District of Ala This was a bill in equity filed in the court below, by the appellee against the appellant, to compel him to account for property received by him as trustee for the complainant and for other relief. The complainant was the daughter of one James Mitchell, who died in 1856, in Sumter Co., Ala. The trust in question was created by his will. The will appointed Daniel Mitchell, the appellant, and one William O. Baskin, the executors, and bequeathed to them in trust for his daughter, the complainant, a negress and her child. The hire of these was to be paid annually to the complainant; and if the executors should deem it proper to sell these slaves, then the interest money was to be paid annually. In case the complainant, Catharine, survived her husband, then the slaves or their purchase money were to go to Catharine. The will further provided that the executors should sell the real estate, the proceeds to be equally distributed among the children named, and Catharine's share to be held in trust by the executors the same as the slaves. An amended bill averred that the executors had sold the slaves before the war, and had never accounted for the hire or the proceeds. The bill alleged that Baskin was not made a party because he resided beyond the jurisdiction of the court, and that Mitchell had had almost exclusive management of the trust estate; that the defendant had received the complainant's share of the proceeds of the real estate, as well as the sums resulting from the sale of the slaves, and had neglected to pay the interest on the same to the complainant, and had mingled this property with his own to the great loss of the complainant, etc. The court below entered a decree in favor of the complainant, establishing the trusts and removing the defendant from his office as trustee.. The case further appears in the opinion of the court. Mr. P. Phillips, for appellant. Messrs. Conway Robinson and Leigh Robinson, for appellee. Mr. Chief Justice Waite delivered the opinion of the court: There can be no doubt that the trust fund in the complainant of the money she is entitled JOHN W. KERR ET AL., Piffs. in Err,, v. JOHN W. CLAMPITT ET AL. (See S. C., 5 Otto, 188-190.) tions, when necessary. this case was always used by the defendant as his own, and that all investments were made by him in his own name, with nothing whatever to indicate an appropriation to the purposes of the trust. When inquired of by the complainant in October, 1860, in respect to the trust, the defendant wrote: "If you will be contented, I will fix your money so that you can see it any instant. But as the time is now, it is in a better fix now than it would be if you had it." In his deposition, taken in his own behalf, when upon cross-examination he was required to make a full, complete and detailed statement of his execution of the trust, he said: "I kept no separate account of the trust fund after it came into my hands, I accounted for the annual interest to the agent of the complainant, and was ready to pay over the principal in the Review of decision as to new trial-bill of excepevent of the death of A. L. D. Moore, which was the time fixed by the will of my father for me to pay over to my sister the corpus of the trust. I thought this was all I was required to do and, therefore, kept no separate and distinct accounts of the trust fund, and cannot give the dates of the loans, or other particulars inquired about. * When necessary, I put some of my own funds with it to make out the sum a borrower might wish to get, and kept no separate accounts of it, and can furnish none." Under these circumstances, clearly the defendant is in no condition to charge the trust with the losses he has sustained from payments to him in Confederate money. As long ago as 1681, it was said in argument and approved by the then Lord Chancellor of England, in Dashwood v. Elwell, 2 Cas. in Ch., 57, that "If an executor hath orphans' or other mens' money in his hands, and bath power to lend it, if he do * * *1. The Supreme Court has no jurisdiction to retion of either granting or refusing a new trial, and vise the action of an inferior court upon the questhe final judgment of such court cannot be examined through its rulings upon that question. If, by writ of error, no other documents are presented when the final judgment is brought here for review for consideration than such as were before the inferior court upon the application for a new trial, this court cannot look into them; and, if error is not otherwise disclosed by the record, the judgment will be affirmed. 2. This court must have before it a bill of exceptions, or what is equivalent thereto, upon which the final judgment of the court below was reviewed, or it will not examine into any alleged errors, except such as are otherwise apparent on the face of the record. [No. 108.] Argued Nov. 21, 1877. Decided Dec. 10, 1877. IN ERROR to the Supreme Court of the Ter ritory of Utah. The case is stated by the court. Messrs. Shellabarger & Wilson, R. N. Baskin and Burnett & Harkness, for plaintiffs in error. Mr. S. S. Henkle, for appellees. Mr. Justice Field delivered the opinion of the court: The statute enumerates the so, and take security in his own name, which faileth, he shall answer the debt in his own. money, unless that he indorse the bond, or do some other thing, at the time of lending the money or taking the security, which may doubtless declare the truth," and this because "heed was to be taken that we make not such examples under which dishonest men may shelter themselves." If this were not the rule, it was also said," It will be in the power of one who By the system of procedure in civil cases deals for several persons and for himself also, adopted in Utah, an appeal lies to its Supreme taking security by bond in his own name, if any Court from an order of its district courts grantof the debts fail, to gratify whom he pleasething or refusing a new trial, as well as from a with good securities, yea, himself, and play the final judgment. securities, good or bad, into his own hands, or what he pleaseth." Thus were set forth in the language of the time, a rule and the reason of it, by which courts of equity have universally required trustees to account; and it can never be departed from, without danger that wrong will be done. Massey v. Banner, 4 Madd., 413: Wren v. Kirton, 11 Ves., 377; McAllister v. Com., 30 Pa., 536; Stanley's Appeal, 8 Pa., 431. This disposes of the first assignment of There is no dispute as to the amount of the trust fund, and no complaint is made of the rate of interest for which the defendant has been decreed to account, if he is liable to ac error. count at all. grounds upon which the verdict of a jury, or the finding of a court or a referee, may be set aside, and a new trial had upon the application of the party aggrieved, and provides the mode in which such grounds shall be presented to the court. If the new trial be asked, for irregularity in the proceedings of the court, jury, or adverse party; or for abuse of discretion by which either party was prevented from having a fair trial; or for misconduct of the jury, or accident or surprise which ordinary prudence could not have guarded against; or for newly discovered evidence, the application must be made upon affidavits. If the new trial be asked for excessive damages, or insufficiency of the evidence to justify the verdict or other decision, or that it is against law, or for errors occurring at the trial, the application must be made upon a statement of the case, setting forth so much of the proceedings had, evidence given or offered, and rulings of the The second assignment of error is to the effect that the court could not direct the payment of the principal sum to a new trustee, because such a decree was inconsistent with the specific relief prayed for. The prayer is for an account, the removal of the old trustees, the payment to *Head notes by Mr. Justice FIELD. court, as will distinctly present the grounds | certain in its terms, and the certainty required has reference both to the description of the property and the estate to be conveyed. Accordingly, where the property could not be identified, specific performance was denied. the other party to execute a deed of trust of the 2. Where one having such a contract permitted lands to a trustee to secure certain indebtedness, with a power to sell them, if necessary, for the payment of such indebtedness; held, that he had waived his right to the conveyance, or, at least, had subordinated it to the interest of the trustee and the urged in its support. But whether the applica- consideration than such as were before the in ferior court upon the application for a new trial, we cannot look into them; and, if error is not otherwise disclosed by the record, the judgment must be affirmed. And such is the condition of the case at bar. No question was before the District Court or the Supreme Court of the Territory, except such as arose on the application for a new trial. The Statute of Utah also provides the mode in which the final judgments of its district courts may be reviewed. It requires a statement of the errors alleged upon which the appellant relies, with so much of the evidence as may be necessary to explain them. Compiled Laws of Utah of 1876, sec. 1413, and secs. 1550 and 1555. This statement is only another name for a bill of exceptions, and is subject to similar rules. It will often embody substantially the same matters which are presented on a motion for a new trial, and it is not uncommon for counsel to stipulate that the statement on the motion shall be treated as a statement or bill of exceptions on appeal from the judgment. But, unless it is so stipulated, the statement intended for the motion cannot be used on appeal from the judg. ment, or considered here. We must have before us a bill of exceptions, or what is equivalent to such bill, upon which the final judgment below was reviewed by the Supreme Court of the Territory, or we cannot examine into any alleged errors except such as are otherwise apparent on the face of the record. The statement in the present case not being one into which we can look, there is no error presented upon which we can pass. Sparrow v. Strong, 4 Wall., 584 [71 U. S., XVIII., 410]; Casgrave v. Howland, 24 Cal.,457; Carpentier v. Williamson, 25 Cal.,154. Judgment affirmed. Cited-105 U. S., 47. JOHN S. PRESTON, JR., Appt., V. THOMAS L. PRESTON ET AL. (See S. C. 5 Otto, 200-204.) enforce such a contract for a period which would Argued Oct. 31, 1877. Decided Dec. 10, 1877. APPEAL from the Circuit Court of the Unitginia. ed States for the Western District of Vir The case is stated by the court. Messrs. Thos. J. Kirkpatrick and Edward S. Brown, for appellees. Mr. Justice Field delivered the opinion of the court: This is a suit to enforce the specific performance of an agreement for the conveyance of certain lands in Virginia. It appears from the record that in 1846 one Sarah B. Preston, of Abingdon, in that State, died possessed of a large amount of real property, embracing the premises in controversy. By her last will and testament, which was duly probated, she made the following devise: "I give and devise to my three sons, William C. Preston, John S. Preston and Thomas L. .Preston, and to their several heirs forever, my salt works estate, embracing and including therein as well the original and principal tract containing the wells, as all the additions subsequently acquired, and all my lands of every description, whether cleared or woodland, either adjacent to or in the vicinity of the salt works estate, in the Counties of Smyth and Washington." Upon the property thus devised the testator charged the payment of certain legacies to the amount of $80,000. She also made her three sons her residuary devisees. In August of the following year, John S. Preston, one of the devisees, by an agreement in writing, sold to his brother, Thomas L. Preston, all the interest which he had acquired under the will in the salt-works estate and adjoining lands and as residuary devisee. It would appear from the recitals in the deed of trust made to secure the purchase money, as hereafter mentioned, that a conveyance of the property was on the same day executed and delivered to Thomas L. Preston in conformity with this agreement, though it was never placed on record. In consideration of this sale, and Specific performance-wairer of right-delay in of the transfer of certain partnership claims and proceedings. *1. A contract for the conveyance of lands, which a court of equity will specifically enforce, must be *Head notes by Mr. Justice FIELD. NOTE.-Relief denied from lapse of time, in equity. See note to Pratt v. Carroll, 12 U. S. (8 Cranch), 471. other personal property, Thomas L. Preston agreed to pay John S. Preston $50,000 on or before the first day of January, 1860, with interest, and to secure the same by a mortgage or deed of trust of the property; to assume the payment of the legacies charged upon the saltworks estate; to indemnify his brother against |