A

as the balance of the principal actually received by the defendants; $23.12 for insurance paid; in all, $2,185.60. When this decree was entered the defendants filed a written motion and petition for rehearing, in respect to which the same proceedings were had as in the preceding cases. formal order for rehearing was made June 30, 1885, and entered as of October 31, 1884; and there was a final decree, January 11, 1887, in favor of plaintiff for $5,411.23, of which $5,381.83 was found to be the principal sum actually received by the defendants, and $29.40 to have been paid for insurance. From that decree both parties have appealed.

In reference to the loan in question, Johnston, the local agent of the company at Springfield, through whom the loan was obtained, testified: "The trust-deed and bonds were executed and delivered to me about the 22d day of June, 1874, as complete. This was a loan of six thousand, at ten per cent. Seven per cent. of the interest was evidenced by the interest coupons attached to the six one-thousand dollar bonds, and the remaining three per cent. was discounted for the five years, and deducted from the $6,000. The trustdeeds and bonds in this case bear date the 1st day of May, 1874, and the interest which accrued on them from May 1, 1874, to June 23, 1874, was paid to the defendant.

Par value of bonds was......
Discount, 3 %, 5 years, was............................

Leaving the sum of...

To this was added accrued interest..

Making the total.......

$6,000 00 694 80 $5,305 20 76 63 $5,381 83"

For that amount Johnston executed and delivered to the defendant his sight draft on the trust company, which was negotiated by her. Pursuant to a previous agreement with him, she paid him a commission of $150. The evidence as to the circumstances under which the loan was made, and commissions paid, and of Johnston's relations to the trust company, was the same as in the other cases.

R. G. Ingersoll and Wm. Richie, for Fowler. W L. Gross, for the Trust Company.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

These appeals are from the same decree. The cases arise under the usury laws of Illinois. They do not differ materially from Nos. 32 and 33, except as to the amount of the loan. The answer raises the same questions as were raised in those cases. The decree gave no credit on the principal sum for payments on account of interest, but was for the amount actually received by the borrower in cash, and the sum paid by the mortgagee for insurance, with interest on the aggregate amount at 6 per cent. from the date of its rendition. Under the statute of Illinois relating to interest upon the loan or forbearance of money, and for the reasons given in the opinion in cases Nos. 32 and 33, (12 Sup. Ct. Rep. 1,) the loan in question must be held to have been usurious, and the decree should have been in conformity with the principles announced in those cases.

The decree is reversed, with costs, and the cause is remanded, with instructions to make such modifications in the decreee as will be consistent with this opinion.

Decree reversed.

fee by the court below is within the stipulated 5 per cent., the supreme court will not hold it to be excessive, when there is no evidence as to the nature of the services rendered or the reasona bleness of the charge.

3. Where the highest legal rate of interest is 10 per cent., the payment of a commission of 3 per cent. to a broker negotiating a loan for five years, at 9 per cent., does not make the transaction usurious.

Appeal from the circuit court of the United States for the southern district of Illinois.

The trust company, upon the written application of Sophie Fowler, a citizen of Illinois, agreed to lend her the sum of $10,000 for five years, at 9 per cent. per annum. She and her husband executed to the company, for the principal of the loan, 10 coupon bonds, of $1,000 each, dated February 1, 1876, and payable on the 1st day of Febru-s ary, 1881, with interest, semi-annually, at the rate of 7* per cent. per annum. They' executed at the same time 10 promissory notes, of $100 each, for the remaining 2 per cent., the first one being payable August 1, 1876, and the others, respectively, on the 1st days of February and August, 1877, to 1881, inclusive. To secure payment of the bonds, they conveyed to Jonathan Edwards, trustee, certain real estate in Springfield, and, to secure the 10 promissory notes of $100 each, they conveyed the same property to the same trustee, subject, however, to the other trust-deed. These deeds do not differ in any respect material to this case from the deeds in the preceding cases, (12 Sup. Ct. Rep. 1,7,) except that the deed given to secure the bonds here involved, aggregating $10,000, provides that nothing contained in it shall be so construed "as to prevent a foreclosure of the same by process of the law or in chancery," and that the trustee, or his successor or successors, shall, upon any foreclosure of this trustdeed, recover, in addition to principal, interest, and ordinary costs, a reasonable attorney's or solicitor's fee, not exceeding five per cent. for the collection thereof, all to be collected without relief from valuation or appraisement laws. And in case of any such foreclosure it is hereby stipulated that the decree or order for foreclosure shall direct and require that the expenses of such foreclosure and sale, including the fees of solicitor and counsel, to be taxed by the court at a reasonable amount, shall be paid out of the proceeds of the sale," etc. This suit was brought to foreclose the defendant's equity of redemption, and to have the mortgaged property sold to pay the amount due the company. The answer in the case raised the same questions that are presented in the four preceding cases. 12 Sup. Ct. Rep. 1,7.

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By a decree entered October 20, 1884, the court adjudged that the company recov er $5,125.42 as the balance of the principal sum actually received by the defendants, $614.72 for insurance and taxes paid by it, with interest thereon, and $287 as solicitor's fee; in all, $6,027.14. When this decree was entered the plaintiff filed a written motion and petition for rehear ing, in respect to which the same proceedings were had as in the preceding cases, and like motions and petitions for re

hearing were filed. A rehearing having been granted, the order for which was entered as of October 31, 1884, a final decree was entered January 11, 1887, adjudging that there was due the plaintiff for the principal and interest of the loan $15,296.60, $3,173 26 for insurance, taxes, and special assessments paid by it, and a reasonable attorney's fee, which was fixed at $923.49; in all, $19,393.35, and costs. From that decree the defendants have appealed.

R. G. Ingersoll and Wm. Ritchie, for appellants. W. L. Gross, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

For the reasons given in the opinion in Nos. 32 and 33, (12 Sup. Ct. Rep. 1,) the question of usury raised must be determined by the law of Illinois. But what was there said in reference to usury, commissions paid to the company's agent by the borrower, and the application to the principal sum of payments made, has no application to this case. This was a loan of $10,000 for five years at 9 per cent. The borrower received the whole amount agreed to be loaned to her. There was not even a reservation of interest in advance. She only gave notes for 2 per cent. of the interest payable when the interest under the contract would become due. The payment of $150 to the broker, as his commission, did not make that contract usurious; for, if that sum be added to the 9 per cent. interest stipulated to be paid, the total amount of interest exacted would be less than 10 per cent., the highest rate allowed by law. In Brown v. Mortgage Co., 110 Ill. 235, 239, the court said: "In the next place, at the time this loan was made, (July 15, 1875,) it was lawful to exact ten per cent. per annum interest on money loaned. The note given bears interest only at the rate of nine per cent. per annum, and runs for five years. It has been held, and is the well-settled law of this court, that it is not usurious to exact the payment of interest in advance. Mitchell v. Lyman, 77 Ill. 525; Goodrich v. Reynolds, 31 Ill. 490; McGill v. Ware, 4 Scam. 21. One per cent. on $4,500 (the amount borrowed) for five years makes just $225; and so, in any view, interest has not been exacted beyond the rate of ten per cent. per annum,-the then legal rate.' So in McGovern v. Insurance Co., 109 Ill. 151: "When this loan was made the legal rate of interest was ten per cent. per annum when the contract provided for this amount. The loan in this case was for three years, at nine per cent. interest. Now, the three per cent. commissions only amounted to one per cent. per annum, so that if the commissions are regarded as interest, and added to the interest at nine per cent. provided for in the note, the rate would still be only ten per cent., and not usurious."

The loan was not, therefore, infected with usury, unless the provision in the trust-deed providing for the payment by the borrower, in addition to ordinary costs, of a reasonable solicitor's fee, not exceeding 5 per cent., for collection, in the event of a suit to foreclose. But it is the

law of Illinois that a provision of that character does not, of itself, make the contract usurious. In Barton v. Bank, 122 Ill. 352, 355, 13 N. E. Rep. 503, it was said: "If enforcing this promise to pay an attorney's fee would, directly or indirectly, have the effect of giving the payee, or of requiring the payor to pay, a greater compensation for the loan, use, or forbearance of the money than is allowed by law, then, unquestionably, the contract would be usurious. The law will not tolerate any shift or device to evade its provisions. * By the statute, all penalties, whether as additional interest or as compensation for the use of the money, are prohibited; but where, as here, no additional or new compensation is provided for, and the contract is only for such sum as the payee would be obliged to expend in compelling the maker to perform his undertaking, the statute contains no inhibition upon the power of the parties to contract that the same shall be paid by the party whose default occasions the necessity for the expenditure." Again: "Upon the question whether contracts of this nature are void as against public policy, this court, as well as those of other states, is fully committed.

The

right of the parties to this contract has been expressly recognized, and when the contract has been for such reasonable attorney's fees only as would indemnify and preserve the payee from loss, and was due at the time of suit brought, this court has in every case sustained the plaintiff's right of recovery. Nor do we see anything in the statute quoted that would change the rule.' See, also, Clawson v. Munson, 55 Ill. 394, 397; Haldeman v. Insurance Co., 120 Ill. 390, 393, 11 N. E. Rep. 526; Telford v. Garrels, 132 Ill. 550, 555, 24 N. E. Rep. 573; McIntire v. Yates, 104 Ill. 491, 503.

The only question of any difficulty is whether the fee stipulated was not excessive. But as the character and extent of the services performed by the plaintiff's attorney were best known to the court below, and in the absence of any evidence as to whether the fee was reasonable, considering the amount involved, and the nature of the services rendered, we are not prepared to reverse the decree because of the allowance to the plaintiff of an attorney's fee which does not exceed the high. est sum fixed in the deed of trust.

We find no error in the decree to the prejudice of the appellants, and it is affirmed.

(141 U. S. 415)

HICKMAN V. CITY OF FT. SCOTT.

(October 26, 1891.) REVERSAL ON APPEAL-PETITION FOR NEW TRIAL. When a jury is waived, and special findings of fact made, and the cause is reversed, with directions to enter a specified judgment, a petition to the trial court for a new trial for errors in findings of fact, and to amend the record by additional findings, was properly denied.

In error to the circuit court of the United States for the district of Kansas. *Hickman brought suit, July 1, 1880, in* the circuit court of the United States for the district of Kansas, against the city of

Ft. Scott, a municipal corporation of that | state, to recover the amount of 27 bonds, of $500 each, issued by that city. The action was tried by the court without a jury. One of the issues was whether the suit was barred by the Kansas statute of limitations, declaring that an action on an agreement, contract, or promise in writing could be brought within five years after the cause of action accrued, and not afterwards; but providing that "in any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt, or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledginent or promise must be in writing, signed by the party to be charged thereby." Gen. St. Kan. c. 80, art. 3, pp. 633635. That issue depended upon the inquiry whether the city had made such an acknowledgment of its liability on the bonds as took the case out of the limitation of five years.

The court made a special finding of facts, and gave judgment in favor of Hickman for $26,385.23. Upon writ of error to this court that judgment was reversed, November 3, 1884, and the cause was remanded, with direction to enter a judg ment for the plaintiff on one bond, No. 78, for $500, with proper interest, less a credit paid of $200, November 8, 1875, and, in respect to all the other bonds in suit, to enter judgment for the city with costs. Ft. Scott v. Hickman, 112 U. S. 150, 160, 165, 5 Sup. Ct. Rep. 56.

A petition for rehearing was filed in this court, asking a reconsideration of its judgment to the extent, at least, of ordering a venire de novo or a reargument of the case. That petition was overruled.

On the 3d of February, 1885, the present proceeding was instituted by a petition filed in the court below by Hickman against the city of Ft. Scott. Its general object was to obtain "a new trial on account of gross and vital errors in the finding of facts;" and also to have the record amended "by allowing certain findings of facts to appear, some of which findings were unavoidably and others accidentally omitted." The petition, among other things, states: "It is desired only that the record should be so amended as to state as well as import the truth, and that the plaintiff should have an oppor tunity of having the actual facts of the controversy taken into consideration by this court, and, if necessary, by the supreme court, before the matter finally passes in rem judicatam. The decision of the supreme court was based upon an imperfect and erroneous report of the cause, and all that the plaintiff now de sires to do is to have the record placed in such shape that the truth may be judicially ascertained before final judgment against him."

The petition sets forth the particular facts which, it is alleged, do not sufficiently appear in the findings, and prays that the plaintif may be allowed to make

proof of them, “and that the omissions and mistakes in the findings of fact hereinbefore stated be supplied and corrected, to the end that the record of said cause may be a true record, before judgment is entered in pursuance of said mandate; or, if such judgment is first entered, then that such judgment may be opened and a new trial ordered."

The mandate of this court was issued February 19, 1885, and was filed in the court below. A judgment in conformity with it was entered by the circuit court on the 2d of March, 1885. Subsequently, the application to amend the record, as prayed for in the petition, was overruled, and an order to that effect was entered. From that order the present writ of error was prosecuted.

Wayne MacVeagh and A. H. Wintersteen, for plaintiff in error. J. D. McCleverty, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

In the original action upon the bonds held by Hickman, a jury having been waived by written stipulation of the parties, the circuit court proceeded to final judgment upon a special finding of facts. The judgment was the one the court intended to enter, and the facts found were those only which the court intended to find. There is here no clerical mistake. Nothing was omitted from the record of the original action which the court intended to make a matter of record. The case, therefore, does not come within the rule that a court, after the expiration of the term, may, by an order nunc pro tunc, amend the record by inserting what had been omitted by the act of the clerk or of the court. In re Wight, 134 U. S. 136, 144, 10 Sup. Ct. Rep. 487; Fowler v. Trust Co., 12 Sup. Ct. Rep. 1; Galloway v. McKeithen, 5 Ired. 12; Hyde v. Curling, 10 Mo. 227. Nor is this a suit in equity to set aside or vacate the judgment upon any of the grounds on which courts of equity interfere to prevent the enforcement of judgments at law. It is simply an application by petition to a court of law, after its judgment has been reversed, and a different judgment directed to be entered, to so change the record of the original judgment as to make a case materially different from that presented to the court of review. The application derives no strength from the fact that it was by petition, and not by motion supported by affidavits.

We know of no precedent for such a proceeding as this, nor is there any principle of law upon which it could be based. In Bronson v. Schulten, 104 U. S. 410, 415, the court, after adverting to the general rule that the judgments, decrees, or other orders of a court, however conclusive in their character, are under its control during the term at which they are rendered, and may be set aside, vacated, modified, or annulled by it, said: "It is a rule equally well established that, after the term has ended, all final judgments and decrees of the court pass beyond its control,• unless steps be taken during that term,

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States supreme court when such authority is denied by a decision of a state supreme court.

3. Act Cong. March 3, 1887, § 3, (24 St. 552,) providing that every receiver appointed by a federal court may be sued "in respect of any act or transaction of his in carrying on the business" without leave of the court appointing him, applies to such a receiver in respect of an act of his predecessor in the office.

In error to the supreme court of the state of Illinois.

This was a motion to dismiss a writ of error or affirm the judgment of the court below upon the following state of facts:

In July, 1887, Lochridge, the defendant in error, began two suits in the circuit court of Christian county, Ill., against McNulta, the plaintiff in error, as receiver of the Wabash, St. Louis & Pacific Railway Company, to recover damages for the death of James and Mary E. Molohon, alleged to have been occasioned by the negligent management of an engine at a public crossing. At the time the cause of action arose Thomas M. Cooley was receiver of the road under an order made by the circuit court of the United States for the southern district of Illinois in a suit to foreclose a mortgage upon the road. Judge Cooley having resigned his receivership, plaintiff in error, John McNulta, was appointed his successor, and was in possession of and operating the road at the time the suits were brought. Demurrers were interposed to the declarations, and overruled, and the suits were subsequent ly consolidated by agreement of parties, tried, and a verdict rendered in favor of the plaintiff for $6,000. This judgment was subsequently affirmed by the appellate court of the third district, (32 11. App. 86,) and again by the supreme court of the state, (27 N. E. Rep. 452.) Defendant thereupon sued out this writ, and assigned as error-First, that the supreme court erred in holding that, under the act of congress below cited, the plaintiff was entitled to maintain the action, when it appeared from the record that McNulta was not the receiver when the cause of action accrued; and, second, in holding that under said act McNulta could be sued as receiver with respect to any act or transaction which occurred before his appointment, without previous leave of the court of the United States by which he was appointed. Defendant in error thereupon moved to dismiss upon the ground that no federal question was involved.

G. L. Burnett, for plaintiff in error. J. W. Patton, for defendant in error. *Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

The substance of the first assignment of error is that under the act of March 3, 1887, plaintiff was not entitled to maintain a suit against McNulta, as receiver, for a cause of action which accrued when the road was in possession of and operated by a former receiver. This is clearly not a federal question, but a question of general law, viz., whether one person holding the office of receiver can be held responsible for the acts of his predecessor In the same office. The substance of the second assignment is that the supreme

court of Illinois erred in holding that such suit could be maintained against the present receiver for the acts of his predecessor without the previous leave of the court; appointing him.

1. Plaintiff in error relies in this connection upon the act of congress of March 3, 1887, (24 St. 552) determining the jurisdiction of the circuit courts, which provides, in section 3, that "every receiver or manager of any property appointed by any court of the United States may be sued in respect of any act or transaction of his in carrying on the business connected with such property without the previous leave of the court in which such receiver or manager was appointed." It is difficult to see what right can be claimed by the receiver under this act. The right he claims is immunity from suit without the prior leave of the court appointing him; but this is a right not given by the statute, but in obedience to a general and familiar principle of law recognized by this court in Davis v. Gray, 16 Wall. 203, and Barton v. Barbour, 104 U. S. 126. The right conferred by the statute to sue without the prior leave of the court is not given t the defendant, but to the plaintiff; and the only question which could properly arise under the act in this case is whether the receiver so sued could be held liable for the acts of a prior receiver. The act does not deprive any one of the right to sue where such right previously existed, but gives such right in certain cases; and it was for the court to say whether the plaintiff's cause of action fell within the statute, or whether the defendant was entitled to the exemption given him by the general law Had the supreme court of Illinois decided that under this act the defendant could not be sued without the prior leave of the federal court, the plaintiff might doubtless have obtained a writ of error from this court upon the ground that he had been denied a right given him by a "statute" of the United States, (Rev. St. U. S. § 709;) but it does not follow that the other party is entitled to the same remedy. The case in this particular is analogous to that of Missouri v. Andriaño, 138 U. S. 496, 11 Sup. Ct. Rep. 385, (decided at the last term,) in which we held that it was only the party whose right under a statute had been denied who was entitled to a writ of error to review the final judgment of the state court.

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any

2. But, while we think that plaintiff in error is not entitled to immunity by virtue of the statute of 1887, we are authorized by Revised Statutes (section 709) to review the final judgment or decree of a state court where "any title, right, privilege, or immunity is claimed under * authority exercised under the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such authori ty," etc. Now, as McNulta was exercising an authority as receiver under an order of the federal court, and claimed immunity as such receiver from suit without the previous leave of such court, and the decision was adverse to such claim, he

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