FRED T. PERRIS, Surviving Partner of D. WILLIAM G. HIGLEY ET AL. (See S. C., 20 Wall., 375-384.) means a law to be thereafter enacted, and not a "judicial construction of existing enactments." tion of the Act of Congress heretofore quoted It was also contended below that, as the secconfers an original chancery and common law jurisdiction upon the district courts, it therefore by necessary implication, excludes such Territory of Utah-courts of-jurisdiction of jurisdiction from all other courts under the ap probate court. Argued Mar. 21, 1873. Decided Nov. 16, 1874. IN ERROR to the Supreme Court of the Ter- The case is fully stated by the court. plication of the maxim "Erpressio unius est exclusio alterius.' To this we reply that the Act of Congress referred to is not a penal statute and the maxim does not apply. We submit, in conclusion, that the opinion of this court in the case of Clinton v. Englebrecht (80 U. S., 434, XX., 659), No. 879, December Term, 1871, covers the question at issue here, and entitles the plaintiff in error to a reversal of the judgment of the Supreme Court of Utah Territory, and an affirmance of the judgment of the Probate Court of Salt Lake County. 1 Pet., 543; Courtwright v. B. R. & A. W. & M. Co., 30 Cal., 580, 581. Mr. R. N. Baskin, for defendants in error. Mr. Justice Miller delivered the opinion of the court: This is a writ of error to the Supreme Court of the Territory of Utah. The suit was an action on a promissory note No law has ever been enacted by Congress, an- for $1,500 brought by plaintiff in error, plaintnulling or disapproving of the Territorial Statute. iff below, in the Probate Court of Salt Lake It will scarcely be claimed that the establish- County. He recovered a judgment in the Proment and definition of jurisdiction of courts of bate Court. The case coming into the District record is not "a rightful subject of legislation," Court of the Third Judicial District was reor that territorial legislation to that end with re- versed, on the ground that the probate court spect to local courts, is inconsistent with the Con- had no jurisdiction of such a suit; and this stitution of the United States. It remains, then, judgment being affirmed on appeal to the Suonly to inquire if the territorial Statute, confer-preme Court, it is brought here by writ of error ring common law and chancery jurisdiction upon probate courts, is inconsistent with the provisions of the Act of Congress heretofore referred to. It is submitted that Congress, in declaring that the jurisdiction of the probate courts shall be "as limited by law," intended a law to be hereafter enacted, either by Congress or by the Territorial Legislature, and that the Territorial Legislature, in conferring upon the probate courts common law jurisdiction to an unlimited extent, did no more than it was empowered by the Act of Congress to do. It is further submitted that the failure of Congress to subsequently annul this Act of the Territorial Legislature by a disapproving statute, validates the exercise of power by the Territorial Legislature, even if it had been originally of doubtful validity. It was contended in the court below, that as the term "probate court" is usually, if not universaily, applied only to tribunals established for the transaction of probate business exclusively, therefore Congress, in using the words "as limited by law," intended not statutory enactments alone, but "the law," in its broader sense, wherein the construction of eminent writers and the interpretation of courts are considered as part of "the law." It is perhaps a sufficient answer to this, to suggest that a grant of power from the law-making body, accompanied by a reservation that such power so granted may afterwards be "limited by law," *Head notes by Mr. Justice MILLER. to that court. The single question in the case is, whether the probate court had jurisdiction to hear and determine such an action as it heard and determined in the present case; and this must be decided by a construction of the Statute of the Territory and the provisions of the Act of Congress organizing the Territory. A Statute of the Territorial Legislature enacts that The several probate courts, in their respective counties, have power to exercise original jurisdiction, both civil and criminal, and as well in chancery as at common law, when not prohibited by legislative enactment, and they shall be governed in all respects by the same general rules and regulations as regards practice as the district courts. In a very learned opinion of one of the judges of the Supreme Court of the Territory, which has been furnished us, we find an ingenious argument in support of the idea, that this provision was not intended to confer jurisdiction, but was a mere declaration of the opinion of the Territorial Legislature that the jurisdiction already existed. This is founded on the use of the words "have power," in the present tense, instead of "shall have power," in the future. We have no doubt that the Legislature intended to confer the power by that sentence. No statute or other law existed previously by which anyone ever supposed that such power existed. The form of expression here used is not at all uncommon for that purpose, especially in enactments which, like this, are parts of a general code of laws. The Legislature was not in any manner called upon to give its opinion of the powers of the Probate Court, but it was in fact making a general system of laws for the Territory. It is inconceivable that it meant any thing else but to establish the court and prescribe its jurisdiction. But the power of the Legislature to confer this jurisdiction on the probate courts is a much more serious question. The Organic Act, in defining the power of the Territorial Legislature, declares that "it shall extend to all rightful subjects of legislation consistent with the Constitution of the United States, and with that Act." We may, I think, assume, without much hazard, that defining the jurisdiction of a Probate Court, or, indeed, of any court, may be fairly included within the general meaning of the phrase rightful subject of legislation. Nor do we think there is anything in such legislation inconsistent with the Constitution of the United States. There remains then only the further inquiry whether it is inconsistent with any part of the Organic Act itself. cifically limited as regards the moneyed value on which it may decide, and by the exclusion of matters concerning real estate. Of the probate courts it is only said that a part of the judicial power of the Territory shall be vested in them. What part? The answer to this must be sought in the general nature and jurisdiction of such courts as they are known in the history of the English law and in the jurisprudence of this country. It is a tempting subject to trace the history of the probate of wills and the administration of the personal estates of decedents, from the time it was held to be a matter of exclusive ecclesiastical prerogative, down to the present. It is sufficient to say that through it all, to the present hour, it has been the almost uniform rule among the people, who make the common law of England the basis of their judicial system, to have a distinct tribunal for the establishment of wills and the administration of the estates of men dying either with or without wills. These tribunals have been variously called Prerogative Courts, Probate Courts, Surrogates, Orphans' Courts, etc. To the functions more directly appertaining to wills and the administration of estates, have occasionally been added the guardianship of infants and control of their property, the allotment of dower, and perhaps other powers related more or less to the same general subject. Such courts are not in their mode of proceeding governed by the rules of the common law. They are without juries and have no special system of pleading. They may or may not have clerks, sheriffs or other analogous officers. They were not in England considered originally as courts of record; and have never, in either that country or this, been made courts of general jurisdiction, unless the attempt to do so in this case be successful. That Act established a complete system of local government. It stands as the constitution or fundamental law of the Territory. It provides for the Executive, Legislative and Judicial Departments of Government. It prescribes their functions, their manner of appointment and election, their compensation and tenure of office. In regard to the judiciary, it creates the courts, distributes the judicial power among them, and provides all the general machinery of courts, such as clerk, marshal, prosecuting attorney, etc. It is here, then, if anywhere, that we should look for anything inconsistent with the power conferred on the probate courts by the Territorial Legislature. The 9th section of the Act (9 Looking, then, to the purpose of the Organic Stat. at L.,453) declares that "the judicial power Act to establish a general system of government, of the Territory shall be vested in a Supreme and its obvious purpose to say what courts shall Court, district courts, probate courts, and jus- exist in the Territory, and how the judicial tices of the peace," and it prescribes the organ-power shall be distributed among them, and esization and number of the district courts. The judges of these are appointed by the President, by and with the advice and consent of the Senate of the United States. And then it declares that "the jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts, and of the justices of the peace, shall be as limited by law: Provided, That justices of the peace shall not have jurisdiction of any matter in controversy where the title or boundary of lands may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars, and the said Supreme and district courts, respectively, shall possess chancery as well as common law jurisdiction." Provision is made in the same section for appeals and writs of error from the district courts to the Supreme Court of the Territory, and from that court to the Supreme Court of the United States, but no provision is made for any such review of the decisions of the probate courts or of the justices of the peace. pecially to the fact that all ordinary and necessary jurisdiction is provided for in the Supreme and district courts, and that of the justices of the peace, and that the jurisdiction of the probate court is left to rest on the general nature and character of such courts as they are recognized in our system of jurisprudence, is it not a fair inference that it was not intended that that court should be made one of general jurisdiction-that it should not be converted into a court in which all rights, whether civil or criminal, whether of common law or chancery cognizance, whether involving life, or liberty, or property, should be lawfully tried and determined? For all such cases, when tried in the district courts, provision is made for correction of errors and mistakes by appeal to a higher court. But no such provision is made in regard to the probate courts, a thing which certainly would have been done if it had been supposed that all judicial power would have been vested in them. It is supposed that a sufficient answer to this The common law and chancery jurisdiction course of reasoning is found in the declaration of here conferred on the district and Supreme the 9th section of the Organic Act already cited, Courts, is a jurisdiction very ample and very that the jurisdiction of the several courts therewell understood. It includes almost every mat-in provided for, "shall be as limited by law." ter, whether of civil or criminal cognizance, which can be litigated in a court of justice. The jurisdiction of the justices of the peace is spe The argument is that this refers to laws to be thereafter made by the Territorial Legislature, and that as the power of that body extended to all rightful subjects of legislation, it extended to this of totally changing the jurisdiction of these courts. We are not prepared to say that, in deciding what law is meant in this phrase, "as limited by law," we are wholly to exclude laws made by the Legislature of the Territory. There may be cases when that Legislature conferring new rights, or new remedies, or establishing anomalous rules of proceedings within their legislative power, may direct in what court they shall be had. Nor are we called on to deny that the functions and powers of the probate courts may be more specifically defined by territorial statutes within the limit of the general idea of the nature of probate courts, or that certain duties not strictly of that character may be imposed on them by that legislation. (See S. C., 20 Wall., 385-386.) Findings of fact of court below, when conclusive. by an appeal, and there is no dispute as to the law, 1. Where questions of fact only are presented and the two courts below have already found against the appellants, the burden is on the appelfavor of the decrees below, and this court ought lant to show the error. Every presumption is in not to reverse unless the error is clear. 2. Whether the circumstance, that there was no Argued Nov. 4, 5, 1874. Decided Nov. 16, 1874. ed States for the District of Massachusetts. The libel in this case was filed in the District Court of the United States for the District of Massachusetts by the appellants, to recover for the loss of the schooner Charles F. Beebe, by a collision with The S. B. Wheeler. A decree having been entered dismissing the libel and affirmed, upon appeal, by the circuit court, the libelants took a further appeal to this court. The case is sufficiently stated by the court. for appellants. Messrs. John C. Dodge and H. W. Paine, Messrs. G. A. Somerby and L. S. Dabney, for appellees. Mr. Chief Justice Waite delivered the opin But we hold that the Acts of the Legislature are not the only law to which we must look for the powers of any of these territorial courts. The general history of our jurisprudence and the Organic Act itself are also to be considered, and any Act of the Territorial Legislature inconsistent with the latter must be held void. We are of opinion that the one which we have been considering is inconsistent with the general scope and spirit of that Act in defining the courts of the Territory, and in the distribution of judicial power amongst them, inconsistent with the nature and purpose of a probate court as au thorized by that Act, and inconsistent with the clause which confers upon the Supreme Court and district courts general jurisdiction in chan-ion of the court: cery as well as at common law. The fact that the judges of these latter courts are appointed by the federal power, paid by that power-that other officers of these courts are appointed and paid in like manner-strongly repels the idea that Congress, in conferring on these courts all the powers of courts of general jurisdiction, both civil and criminal, intended to leave to the Territorial Legislature the power to practically evade or obstruct the exercise of those powers by conferring precisely the same jurisdiction on courts created and appointed by the Territory. The Act of the Territorial Legislature conferring general jurisdiction in chancery and at law on the probate courts is, therefore, void. This view is supported by the decisions of courts of Kansas, on a similar statute (Locknane v. Martin, 1 McCah., 60; Dewey v. Dyer, 1 McCah., 77; Mayberry v. Kelly, 1 Kan., 116), by decssions in Idaho (People v. Du Rell, 1 Idaho, 30; Moore v. Konbly, 1 Idaho, 55), and the decisions of the Supreme Court whose judgment we are here called on to reverse. Questions of fact only are presented by this appeal. There is no dispute as to the law. Two courts have already found against the appellants. It has been over and over again ruled by this court that under such circumstances the burden is on the appellant to show the error. Every presumption is in favor of the decrees below. We ought not to reverse unless the error is clear. Such is not the case here. It is, indeed, urged that the claimants, by their own proof, established the fact that there was no lookout at the bow of The Wheeler when the collision occurred. This is so; but whether that was a contributing fault, was a question of fact, and that has been twice found against the appellants. We are entirely satisfied with all the findings. NOYES L. AVERY, Assignee, etc., of ALEX- v. CATHERINE HACKLEY, Exrx., and C. H. AL. (See S. C., 20 Wall., 407-413.) Lien on property, not lost by taking void bill of sale. A person having a lien upon property, does not lose it by taking a bill of sale of the same property; the bill of sale being voidable, and having been no evidence of intent to abandon the lien. avoided under the Bankrupt Act, and there being [No. 29.] Submitted Oct. 21, 1874. Decided Nov. 16, 1874. ERROR to the Circuit Court of the United | If so, the defendants have lost their liens be States for the Western District of Michigan. Suit was brought in the court below by the plaintiff in error, as bankrupt's assignee, to recover the value of certain logs. Judgment hav ing been entered in favor of the defendants, the plaintiff sued out this writ of error. The case is further stated by the court. Messrs. J. W. Champlain, W. F. Mattingly and Geo. Gray, for plaintiff in error. Messrs. E. A. Storrs, Eggleston and Kleinhaus, for defendants in error. Mr. Justice Davis delivered the opinion of the court: This is an action of trover, to recover the value of a large quantity of saw-logs alleged to have been fraudulently transferred by Alexander Blake, the bankrupt, to these defendants. The case was tried by the court without the intervention of a jury, and from the findings of fact it is very clear that the various contracts between the parties were merged in the contract bearing date January 25, 1868. Hackley & Sons were partners, owners of a saw mill, and engaged in the manufacture of lumber at Muskegon, in the western district of Michigan, while the business of Blake, among other things, was, to furnish logs to be manufactured into lumber. There had been several logging contracts between the parties, which were in course of completion when the agreement in writing of January 25, 1868, was concluded. By this agreement, Blake engaged to deliver at the booms of the Muskegon Booming Company, to the defendants, to be sawed on shares, eighteen million feet of pine saw-logs. In consideration of this undertaking, the defendants agreed to advance to Blake, $4 per thousand feet, board measure, to be paid from time to time, as the work progressed, and to be applied exclusively to this purpose. To secure the advances with a stipulated rate of interest, the property in the logs was conveyed to the defendants, and the right of possession vested in them, who covenanted when the lumber was manufactured to send it forward to market and sell it to the best advantage, the net proceeds to be equally di vided between the parties. If this contract was never surrendered or abandoned, it is manifest that the defendants acquired an interest in and a lien upon the logs furnished by Blake, to the extent of the advances made by them. There could be, therefore, on the theory that the contract of the 25th of January was subsisting, no ground for the maintenance of this action. It is said, however, that the defendants lost their rights under this contract by what occurred subsequently to its execution. It seems that during the season of 1868, the price of lumber largely declined in the Chicago market, and that Blake, on the 25th of May of that year, informed the defendants that he was unable to pay his debts, and proposed to make an assignment; but they objected to this, and requested him to make a bill of sale of his prop. erty to them, to which he assented. The bill of sale was accordingly executed, with a view to give the defendants a preference; and as this was contrary to the provisions of the Bankrupt Law, the single question for discussion is, was the contract of January 25th abandoned by the parties thereto, and merged in the bill of sale? cause they cannot stand on the new contract ef May 25th, for the reason that it is void as to creditors. On the contrary, if the old security was not abandoned, although the defendant's attempted to strengthen their hold on the logs by an additional security voidable at the election of creditors, and which they did avoid, the right of lien justly acquired is not lost to the defendants, and they are at liberty to assert it in this action. It is undeniable that before the execution of the contract of May 25th the logs in controversy were in the possession of the defendants, who had advanced on them to Blake a very large sum of money. Without these advances the logs could not have been cut, banked and put in the river; and, unless the defendants have plainly lost their right to retain the logs, common justice requires that they should be repaid. The honesty of the transaction is undisputed. Nor is there anything to show that the defendants were aware of the insolvent condition of Blake until after the logs had been delivered and the money advanced, They were proceeding in good faith to carry out their part of the contract when they were met by information of Blake's inability to go on with his business. The bill of sale, as it is called, which they took embraced not only the logs in controversy, but other personal property and real estate. It is fair to infer from the facts found in the case that the bill of sale was not intended to clothe the defendants with any greater rights in the logs than they possessed without it, for it is very clear that the parties acted on the idea that the lumber, when manufactured and sold, would fall short of re-imbursing the defendants for their advances, interest and expenses. To save them from anticipated loss was, doubtless, the motive for including the remaining property of Blake, and not any expectation that previously acquired legal rights would be enlarged. The giving this preference has not operated to lessen the estate of Blake, as the creditors got everything but the logs, and these, as it turns out, Blake had no interest in. If there were any reasonable doubt about the intention of the defendants not to abandon the contract of January 25th, it is set at rest by the consideration that when the bill of sale was executed and delivered there was no agreement to cancel it, nor was it, in fact, canceled, but was held and retained by the defendants. Naturally, if they had intended to rest their right to the logs exclusively on the bill of sale, they would have surrendered the former security. It is, therefore, not a case where an old security is abandoned and given up, and a new one taken as a substitute for that which previously existed. If, then, the contract of 25th January was not merged in the contract of 25th May, the latter one cannot operate as an extinguishment of the former, the fairness of which has not been denied. This would not be the case if both contracts were valid, unless by express agreement, and it would be singular if such an effect could be produced, where one of them could be avoided by creditors as against the policy of the law. The creditors having elected to avoid the fraudulent conveyance, take the property as though it had never been made, and subject to all lawful liens upon it. The assignee, standing in the place of the bankrupt, acquired no greater rights | extent of this one, contracted in good faith in than he possessed, and the defendants neither the prosecution of a legitimate business, unless gained nor lost any rights because of the bill of the evidence on the subject left no other altersale. native. These general views are sustained by authority which seems decisive of the point at issue. In re Kahley, 4 Bk. Reg., 124; Ladd v. Wiggin, 35 N. H., 428; Towle v. Hoit, 14 N. H., 63; Stedman v. Vickery, 42 Me., 136; Hoyt v. Dimon, 5 Day, 483; Britt v. Aylett, 6 Eng. (Ark), 475; Mead v. Combs, 4 C. E. Green (N. J.), 112; Ripley v. Severance, 6 Pick., 474; Sawyer v. Turpin, 5 Bk. Reg., 339; Eastman v. Porter, 14 Wis., 39; Stokoe v. Cowan, 29 Beav., 637; Meshke v. Van Doren, 16 Wis., 319; White v. Gainer, 2 Bing., 23. White v. Gainer, 2 Bing., 23., was trover by the assignee of a bankrupt. The defendant, a maker of cloth, who had a lien on some cloth in his possession, purchased it of the bailor, together with several other pieces, after he became bankrupt, and when the cloth was demanded of him by the assignees of the bankrupt, refused to give it up, saying: "I may as well give up every transaction of my life." It was contended at the trial that the lien was merged in the purchase, and that, at all events, it was waived, because not set up when the cloth was demanded. The judge directed the jury that the demand should have been accompanied with the tender of the amount due for the workmanship on the cloths, but reserved the point as to the merger of the lien. On deciding the motion for a rule nisi to set aside the verdict, Best, Ch. J., said: "It has been urged that he (the defendant) bought the cloths after the bankruptcy. If that were so, he stands in the same situation as every other purchaser, under the same circumstances; the purchaser is liable to restore them to the assignees, but the assignees must take them subject to such rights as had accrued previously to their claim, and the bankruptcy of the bailor will not deprive the defendant of the right to which he is entitled-the right of lien. It might have been otherwise, if the defendant, when called on to surrender the goods, had relied on the purchase; but this was not the case, and the verdict must stand." The rule laid down by Chief Justice Best is applicable here. The assignee of Blake had no right to the property until he had tendered the advances upon it, and there is no evidence that the defendants placed their refusal to deliver the property upon any particular ground. In the absence of this evidence, it is a reasonable presumption that the lien, if not asserted in terms, at least was not, when demand was made, waived. It is true the defendants claimed, after the execution of the bill of sale to the creditors of Blake and other persons, to be the absolute owners of the property conveyed to them, but so far as the logs were concerned, this claim was doubtless predicated on the belief that the price of lumber would not advance, and if it did not, according to the estimates which were made, Blake had no interest in them. If so, although the claim of absolute ownership might not be legally correct, it had a basis of fact to rest upon, and does not prove that the defendants intended to abandon their lien. Indeed, it would be a harsh rule to infer the abandonment of a lien to the It is said that after the execution of the bill of sale the lumber was not sold on joint account and, therefore, the lien was waived. The answer to this is, that the contract by which the lien was secured did not require the lumber to be sold on joint account. If the defendants sent the lumber to market, sold it to best advantage and divided the proceeds, the contract on their part was complied with. They had entire control over it, and the manner of sale is immaterial and cannot affect the rights of the parties. The leading purpose of the Bankrupt Law is to secure an equal distribution of the bankrupt's property among his creditors. This purpose was accomplished in this case when the bill of sale was set aside, but the assignee seeks to go further and increase the estate more than $70,000 by relieving the bankrupt from the performance of a pre-existing valid contract. This he cannot do, unless on the clearest proofs that the defendants intended to abandon this contract and rely wholly on the bill of sale. As these proofs are wanting, the judgment is affirmed. WARREN C. GILLETTE, Piff. in Err., v. MASSENA BULLARD. (See S. C., 20 Wall., 571-575.) Sufficiency af answer-answer to action on appeal bond. 1. An answer to be good, must overcome the case made by the complaint. If the facts in the complaint are admitted, it must state other facts, sufficient, if true, to defeat the action. 2. Where the answer to an action on an appeal bond alleged the taking of an appeal, but nowhere averred that it had been perfected, nor that, at the time of the commencement of the action, it was still pending, the answer contains no sufficient averment of defense to the action on the bond, it being averred in the complaint and not denied in the answer that the judgment was affirmed on the appeal. [No. 49.] Argued Nov. 2, 1874. Ν Decided Nov. 16, 1874. IN ERROR to the Supreme Court of the Territory of Montana. Suit was brought in a District Court of Montana, in Lewis and Clarke County, by the defendant in error, upon an appeal bond. Judgment having been entered for the plaintiff and affirmed, upon appeal, by the Supreme Court of the Territory, the defendant sued out this writ of error. The case is fully stated by the court. Mr. Robert Leech, for plaintiff in error: The undertaking sued on in this case was simply security for the judgment, and the plaintiff had no right to maintain an action thereon, until the final affirmance of the judgment in the court of last resort. To enable him to maintain this action against the surety, it was necessary that he have a right to enter and collect a judgment of affirmance in the case. Poppenhusen v. Seeley, 41 Barb., 450; Robinson v. Plimpton, 25 N. Y., 484. |