it is now urged upon us as a reason for dismiss ing the writ, that this second ground is of itself sufficient to control the case, and the writ should, therefore, be dismissed.

Some of the decisions of this court under the Act of 1789 would undoubtedly justify this view if it were very clear that this second proposition was sufficient, and that it involved no consideration of federal law.

But, as we have already seen, that Act contained restrictive language not in this, and in construing the statute as it now stands, we have ruled in the case of Murdock v. Memphis [ante, 429], just referred to, that where the federal question has been raised, and has been decided against the plaintiff in error, the jurisdiction has attached, and it must be heard on the merits. To what this examination on the merits shall extend, we have in that opinion considered. But until we have determined that the State Court decided erroneously the fed eral question which it did decide, we can go no further into the re-examination.

The counsel of both parties in this court are entitled to be heard when the record shows the existence of a decision which gives us jurisdiction, on the soundness of that decision, on its sufficiency to control the judgment in the whole case, and on the sufficiency of any other point decided, to affirm the judgment even if the federal question was erroneously decided.

For these reasons the motion to dismiss the case is overruled.

Ν

IN ERROR to the Court of Common Pleas for the City and County of N. Y.

The case is stated by the court. See also, S. C. on merits, 91 U. S., XXIII..

Messrs. John Sherwood and W. M. Evarts, for plaintiff in error.

Mr. Aug. F. Smith, for defendant in error.

Mr. Justice Miller delivered the opinion of the court:

This is a motion to dismiss a writ of error to the Court of Common Pleas of the City and County of New York. It was tried on a statement of facts, in the Court of Appeals of that State, signed by counsel, the substance of which is, that the plaintiff in error, then and still residing in New York, was, at the outbreak of the late civil war, a member of a partnership of

after date, on which the suit was brought, as well as others, accepted several months later.

Matthews sets up the defense that, at the time of this acceptance, war had been declared and existed between that part of the United States in which he resided and that in which his other partners resided, by virtue of which the partnership had been dissolved before these acceptances were made, and that the contracts, as to him, were, therefore, void.

This was the only question in the case, and it was heard and decided in the Court of Ap peals, and the decision was against the plaintiff in error.

That court discusses the question, at what stage of the civil war the rule against commercial intercourse with the enemy took effect, so as to dissolve the contract of partnership. The plaintiff in error contended that the Proclamations of blockade of the 15th and 19th April, by the President, had that effect, and that, by reason of those Proclamations, the act of acceptance was void, as to him. The Court of Appeals held that the war had no such effect until it was recognized by the Act of Congress of July 13, 1861, and held drafts accepted after that date, void, and the ones before, valid.

Conceding in its opinion that, under the decision in the Prize cases, 2 Black, 635 [67 U. S., XVII., 459], the war existed for some purposes prior to that Act, it was still held that it did not become, until so recognized by Congress, of such a character as to suspend commercial intercourse and, therefore, had no effect upon the contract sued on in this case.

We are of opinion that the only question made and decided in this case against plaintiff in error, was the sufficiency of the acts of the President to inaugurate a war which would render invalid this contract, and that this is one of the questions embraced by the Act of February 5, 1867.

The motion to dismiss is, therefore, overruled. Cited-92 U. S., 287; 93 U. S., 594; 13 Blatchf., 388.

GEORGE BAKER AND JOSEPH L. PERKINS, as GEORGE BAKER & COMPANY. (See S. C., 20 Wall., 650, 651,) Receiver's appointment, when cannot be questioned.

The debtors of a bank, when sued by a receiver, cannot inquire into the legality of his appointment. It is sufficient, for the purpose of such a suit, that he has been appointed and is receiver in fact. [No. 13.] Dismissed Oct. 30, 1874. Judgment of Oct. 30, 1874, rescinded and annulled, and case re-instated Dec. 10, 1874. Submitted Dec. 17, 1874. Decided Jan. 11, 1875.

ERROR to the District Court of the United

Orleans, were the other members. On the 23d April, 1861, the firm accepted, at New Orleans, a draft drawn on them by Walker, Cheatham & Co., for $8,050.06, payable twelve months

The case is fully stated by the court. Messrs. P. Phillips and Charles Case, for plaintiff in error.

Mr. Chief Justice Waite delivered the opinion of the court:

This was an action by the receiver of an insolvent national bank, to recover the amount due upon a bill of exchange indorsed to the bank and held as part of its assets at the time of its insolvency. The declaration contained an averment in substance that the Comptroller of the Currency, having become satisfied, as specified in the Banking Act, that the bank had refused to pay its notes, did appoint the plaintiff a receiver, as provided by the 50th section of the Act, and that he had qualified under his appointment and entered upon the performance of his duty. The defendants demurred to the declaration, and in effect assigned for cause that it was not specifically averred that each and all of the several things had been done which were provided for in sections 46 and 47 in order to furnish the evidence to satisfy the Comptroller that the bank had refused to pay its notes and was in default.

We think such averments were not necessary. The debtors of a bank, when sued by a receiver, cannot inquire into the legality of his appointment. It is sufficient for the purposes of such a suit that he has been appointed and is receiver in fact. As to debtors, the action of the Comptroller in making the appointment is conclusive until set aside on the application of the bank. The bank may move in that behalf, but the debtor cannot. Section 50 makes express provision for a contest by the bank.

I. A statement of the case, etc.

II. An assignment of the errors relied upon which, in cases brought up by writ of error, shall set out separately and specifically each error asserted and intended to be urged," and section 8, "without such an assignment of errors counsel will not be heard, except at the request of the court; and errors not assigned according to this rule will be disregarded, though the court at its option may notice a plain error not assigned."

There is no such assignment of errors in this case as is required by the rule, and we do not see in the record any error that ought to be noticed without an assignment.

Messrs. W. W. Foote and Houghton & Reynolds, for defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court:

The judgment of the circuit court is affirmed. Rule 21 of this court provides that the brief of

[No. 129.]

Argued Jan. 8, 1875.

Decided Jan. 18, 1875.

APPEAL from the Circuit Court of the Unit

ed States for the Eastern District of Ten

nessee.

The case is fully stated by the court. Messrs. Felix A. Reeve and Horace Maynard, for appellant:

Each and all of the proceedings were, in every particular, in strict conformity with the laws of Tennessee, and no attempt was made to annul or reverse the same in any state tribunal.

The defendant was regularly in court in the mode prescribed by statute, and could have made there the same defense that he afterwards set up in equity.

A court of equity has no jurisdiction to relieve a plaintiff against a judgment at law, when the case at equity proceeds upon a ground equally available at law.

Harrison v. Nettleship, 2 My. & K., 423; The Marine Ins. Co. of Alexandria v. Hodgson, 7 Cranch, 332; Truly v. Wanzer, 5 How., 141; Creath's Admr. v. Sims. 5 How., 192; Walker v. Robbins, 14 How., 584: Hendrickson v. Hinckley, 17 How., 445 (58 U. S., XV., 124).

Equity jurisdiction will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Creath v. Sims, 5 How., 204.

Mr. John Baxter, for appellee:

In this case there was no actual service of

process or notice; the judgment sought to be impeached and declared void was obtained by Monger on a spurious note, and an indorsement thereof, forged by him or by some one for him and with his privity and consent, and sued out in a time of civil war, when his adversary was within the lines of the adverse belligerent, and in a situation in which he could receive no notice of the institution of the suit, or if by chance he did receive such notice, he could make no defense to it whatever. It would be a reproach to the jurisprudence of the country, if it failed to provide a remedy in such a case. There was no remedy at law, and if it exists at all, it must be found in equity.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the Circuit Court of the United States for the Eastern District of Tennessee.

Shirley was the complainant in the court be low. His bill alleges that Monger instituted proceedings against him by attachment in the Circuit Court of Hamilton County, Tennessee, upon a promissory note purporting to be exe cuted by Shirley to John W. Westmoreland, for the sum of $10,000, dated December 15, 1863, payable three months from date and indorsed by the payee to Monger; that a judgment was rendered against Shirley by default: that a large and valuable farm belonging to him was sold under the judgment and bought in by Monger; that Shirley was then absent from Tennessee and was ignorant of the proceedings; that the note and indorsement were forgeries, and that the whole proceeding, culminating in the sale of the farm, was a gross fraud upon Shirley, per petrated by Monger. It is further alleged that Monger, in certain proceedings in confiscation in the District Court of the United States for the District of East Tennessee, had fraudulently acquired a title to the life estate of Shirley in the farm. The prayer of the bill is, that Monger's title may be annulled, that he may be compelled to account for the rents and profits of the prop erty, and for general relief.

Monger answered and denied all the material allegations of the bill.

Testimony was taken upon both sides. The court below sustained the bill and decreed accordingly. Monger thereupon removed the case, by appeal, to this court.

The power of a court of equity to annul judg ments and decrees, and all titles acquired under them, for fraud, where the rights of bona fide purchasers have not intervened, is too well setiled to require discussion.

Freem. Judg., secs. 486, 489-491; 1 Story, Eq., sec. 252.

The facts alleged by Monger are as follows: Shirley sympathized with the rebel cause, and early in the war removed to Georgia, within the insurgent lines. While he was there, a man, claiming to be Jobn W. Westmoreland, came to Tennessee, passed through the lines of the Union Army, and offered to sell the note to Monger for its face in Confederate paper, which was then and there worth ten cents on the dollar. Monger bought the note, underdue, and paid for it accordingly.

The deposition of David Westmoreland was taken in December, 1868. He testified that about

three months before that time, a man, claiming to be John W. Westmoreland, came to his house and said the object of his call was to ascertain whether they were related. He mentioned that he had sold the note of Shirley to Monger. The witness had never seen him before, and never saw him afterwards. The note disappeared from the files of the court and could not be found. There is no proof of any consideration for giving the note, and none of its execution, as to time, place or circumstances. The testimony of John W. Westmoreland was not taken, and there is no proof that a person of that name was or had been in existence, except the testimony of the David Westmoreland before mentioned, and his further testimony that he had a brother so named, who lived and died in Missouri be fore the war.

According to Monger, the seller of the note came secretly and departed secretly. There is no proof that at that time he saw anyone but Monger. There is no trace of his residence or presence anywhere, before or afterwards. The deposition of David Westmoreland in nowise identifies the stranger who called on him, as the person he assumed to be. The testimony is injurious to Monger. That person, whoever he was, was living in the fall of 1868, while this suit was pending, and more than four years after the alleged transfer of the note to Monger. He was willing to give Monger the benefit of his declarations to David Westmoreland for whatever they were worth. His disappearance and subsequent non-appearance can be accounted for only upon the ground that he was afraid to put himself within the reach of the law by appearing as a witness.

Shirley's deposition was taken. He swears positively that he never executed the note and that he never knew anyone of the name of the payee.

Richey, a witness in his behalf, testifies that Campbell and Monger conspired together and forged the note. The character of Richey for truth is shown, by a host of witnesses, to be very bad. The character and testimony of Richey are destroyed by the witnesses called to impeach and contradict him. There is proof that, at the date of the note, Shirley was very ill, and if not then unable to execute a note, certainly gave none.

The effect of this evidence is much weakened by the adverse depositions taken by Monger. We have, therefore, laid the testimony of all these witnesses out of view. There is no evidence of the slightest weight that the signature to the note was in Monger's handwriting. The whole superstructure of the case as regards the note rests upon the unsupported declarations of Monger.

It is unnecessary to pursue the subject further. The facts of this branch of the case are as free from doubt and difficulty as is the law. They fill the largest measure of conviction in the mind, that the note was a forgery, that Westmoreland, if not a myth, was a party to the crime, and that he has wisely shrunk back and since remained in guilty concealment.

But it is insisted that Monger has a valid title to the life estate of Shirley in the farm, derived from the confiscation proceedings, and that, therefore, the plaintiff's case must fail. The life estate was sold in those proceedings, and Monger

After the sale by the officer, of any goods or chattels as aforesaid, he shall first pay the rent so due out of the proceeds of such sale. Sec. 84, Stat, of Pa. (supra).

Mr. Justice Swayne delivered the opinion of the court:

This is a writ of error to the Circuit Court of the United States for the Eastern District of Pennsylvania.

The assignee acquired his title to the movable property found on the demised premises, subject to the rights of all other persons. Gib son v. Warden, 14 Wall., 244 (81 U. S., XX., 797). The rent in question was for a period which terminated when the assignee took possession, and the entire period was within a year of that time. Before the commencement of the proceedings in bankruptcy, the defend ants in error might have distrained; and it is agreed that the property upon the premises was more than sufficient to satisfy the demand. The Statute of Pennsylvania, of June 16, 1836 (see 83 Purd. Dig., 1873, p. 879), provides that where property under such circumstances is seized and sold under execution, the rent due

for a period not exceeding one year shall be

paid first out of the proceeds of the sale. This case is within the equity of that statute. Sedg. Stat. Law, 296. The question presented is one belonging to the local law of Pennsylvania. We think it was correctly decided by the circuit court.

The judgment is affirmed.

4. In the Pacific States and Territories, a right to running waters on the public lands of the United States for purposes of irrigation, may be acquired by prior appropriation as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country and the necessities of obtains in the Territory of Montana, and is sanctioned by its legislation.

the community, is entitled to protection. This rule

provides "That, whenever, by priority of posses5. By the Act of Congress of July 26, 1866, which sion, rights to the use of water for mining, agricultural, manufacturing or other purposes have vested knowledged by the local customs, laws and decisand accrued, and the same are recognized and acions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same," the customary law, with respect to the use of water, which has grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. That law may be shown by evidence of the local customs, or by the legislation of the State or Territory or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case regulation, the latter, as of superior authority, will of conflict between a local custom and a statutory control.

[No. 126.] Argued Jan. 8. 1875.

Decided Jan. 18, 1875.

APPEAL from the Supreme Court of the Ter

ritory of Montana.

The case is stated by the court. Messrs. M. Blair, N. Wilson and W. F. Sanders, for appellants.

Mr. R. T. Merrick, for appellees:

S. C.-12 Bk. Reg., 95.

WILLIAM BASEY ET AL., Appts.,

v.

JOHN GALLAGHER ET AL.

(See S. C., 20 Wall., 670-686.)

Abandoned demurrer-law and chancery jurisdiction in Montana-in equity case, findings of jury not conclusive on court-water rights in Pacific Territories-law applicable to-how shown-statutory regulation.

*1. Where, in an equity case, a demurrer is filed

to the complaint, and the record does not disclose what disposition was made of it, and an answer is subsequently filed, upon which the parties proceed to a hearing, it will be presumed on appeal that the demurrer was abandoned.

2. Although, by the organic Act of the Territory of Montana, common law and chancery jurisdic

tion is exercised by the same court and, by legislation of the Territory, the distinctions between the pleadings and modes of procedure in common law actions and those in equity suits are abolished, the essential distinction between law and equity is not changed. The relief which the law affords must be administered through the intervention of a jury, unless the jury be waived. The relief which equity | affords must be applied by the court itself, and all

information presented to guide its action, whether obtained through masters' reports or findings of a jury, is merely advisory.

3. The provision in the Statute of Montana of *Head notes by Mr. Justice FIELD.

tion.

Irwin v. Phillips, 5 Cal., 140; Bear Riv. Co. v. York Mining Co., 8 Cal., 332; Butte Can. Co. v. Vaughn, 11 Cal., 152; McDonald v. Bear Riv. Co., 13 Cal., 220; Phoenix Water Co. v. Fletcher, 23 Cal., 482; Hill v. Smith, 27 Cal., 476; Smith v. O'Hara, 43 Cal., 371; Lobdell v. Simpson, 2 Nev., 274; Ophir Mining Co. v. Carpenter, 4 Nev., 534; Hobart v. Ford, 6 Nev., 80; Dalton v. Bowker, 8 Nev., 201.

If a usage exists recognizing the right to divert and appropriate water, the purpose for which the appropriation may be made is immaterial, provided it be useful or beneficial and not for speculation.

Ortman v. Dixon, 13 Cal.. 33; Davis v. Gale, 32 Cal., 26; Woolman v. Garringer, 1 Mont., 535.

Has this right been recognized by the courts? The cases referred to show that it has been uniformly recognized and established in California and Nevada, and the courts of Montana have, on this subject, followed the decisions of the courts of those States.

Caruthers v. Pemberton, 1 Mont., 111; Woolman v. Garringer, 1 Mont., 535; Thorp v. Woolman, 1 Mont., 171; Atchison v. Peterson, 1 Mont.,

564.

Mr. Justice Field delivered the opinion of the court: