The defendant became a stockholder in the Corporation, after the repeal of the double liability clause, by an original subscription of stock for which it made full payment; and the question is, whether, in this state of the case, it is liable in double the amount of its stock for debts owing by the Corporation prior to the repeal. The Supreme Court of the State decided the point adversely to the plaintiff (Ochiltree v. Iowa Contracting Company, 54, Mo., 117), and this writ of error is brought to revise that judgment.

It is quite apparent that considerations of public policy induced the adoption of the double liability clause in the Constitution of 1865, and equally apparent that, in the minds of the fram ers of the Amendment of 1870, this provision had operated injuriously to the interests of the State, and that sound policy dictated its repeal. It is not difficult to see, with this provision in force, that great public improvements, in some of the States of the Union at least, could not be successfully carried on. Instead of inviting capital it would repel it. There are few per sons who would consent to take stock in such enterprises, if subject to the double liability provision. Although willing to risk the loss of their stock, they would be unwilling to involve their estates beyond it. Especially would this be so if they were invited to take part in the completion of works greatly in debt, and which had languished for years. It is, therefore, important to determine, not only for this case, but all others similarly situated, whether the change of policy on this subject, as manifested by the change in the organic law, is effectual to accomplish the desired object.

The Supreme Court of the State having construed the Amendment of 1870 so as to relieve stockholders in corporations, subscribing after it went into operation, from the effects of the former Constitution, as to debts contracted prior to the Amendment, the only question at issue here is, whether the Amendment, thus interpreted, has the effect of impairing the obligation of the plaintiff's contract within the meaning of the Constitution of the United States.

It would serve no useful purpose to restate the views of this court on this general subject; nor to review the cases, which are neither few nor unimportant. It is enough to say that the law of the contract forms its obligation, and that

right had he to assume that other stock would be taken? It may be that he expected this would be done, and that thereby his security would be increased; but the obligation of a contract within the meaning of the Constitution is a valid, subsisting obligation, not a contingent or speculative one. It was no part of the obligation of contract that future stock should be taken. The value of it would be enhanced if this were done, but the obligation of it would be the same whether the stock were taken or not. If taken, it subjected the holder to the personal liability imposed by the law at the time of the subscription, and to the extent of this additional responsibility the plaintiff is benefited. But suppose no additional stock were taken, the plaintiff has all that he trusted, and has no right to complain that his contract is not as valuable as he thought it would be. If, then, the credit was given to the Corporation and the personal liability of the members composing it at the date of the contract, how does the repeal of the double liability clause impair the plaintiff's contract? It is true, while unrepealed, he had the opportunity to accumulate securities for the payment of his debt; but is this opportunity to be continued after experience has proved that the policy on which it rested was injudicious and should be abandoned? Such a doctrine would tie up legislation, in order that the speculative expectancies of creditors may be protected. It was the object of the National Constitution to protect rights, and not mere incidental advantages which may affect the contract indirectly. The incident of individual liability attached to and formed a part of the contract as long as it lasted. but its repeal did not deprive the plaintiff of any of the rights secured to him when the contract was made. They still exist, and the remedy to enforce them remains the same. If the Corporation itself cannot pay, the members who composed it at the time of the repeal are unaffected by it, and there is nothing in the way of subjecting them to the double liability provision. Instead of the plaintiff being injured by the repeal, he is benefited by it, for it cannot be supposed that the defendant would have taken stock with the burden imposed by the old law, and the subscription made by it increased the capacity of the Company to pay its debts very largely, as it is agreed that it owns eight thousand nine hundred and sixty shares of stock, each share being for $100. This stock was paid for and risked in the general enterprise and, like other assets, liable for the debts of the Company; but the plaintiff seeks to place upon the defendant a liability beyond this, which it cannot be believed it meant to assume, as the law did not impose the liability upon it when the stock was taken.

The plaintiff contracted with the Alexandria

and Nebraska Company.authorized to issue two millions of stock. In the absence of any evidence on the point, it is fair to presume the stock was absorbed when the contract was made. This Corporation he trusted, and the persons who held its stock were undoubtedly liable to him in case he could not get his debt out of the Company. He not only holds this security, but in addition to it the assets of the Iowa Southern Company, and the liability of the holders of one and a half millions of stock in it. Beside this he has the obligation of the consolidated Company to pay his debt. It is difficult to see how these things have tended to impair his contract or lessen its value. But he seeks to increase his security by embracing the stockholders of the consolidated Company, who were not parties to the contract to pay his debt, but who subscribed after the amended liability law went into operation. This he cannot do. His remedy under the law as it existed at the date of his contract |

1. Where property has been seized on attachment in a state court more than four months before the fense being interposed by the assignee, in the state commencement of bankrupt proceedings, no decourt, and no measures having been taken to arrest the proceedings or to transfer them to the bankalleged, a good title was obtained under the sale, rupt court, and there being no fraud proven or on attachment made in the state court. 2. The transfer of his real estate by a debtor before judgment or decree, whether by his own against whom an attachment had been issued, and act or by operation of law, cannot impair or invalidate the title of a purchaser under such decree or judgment.

3. As to the class of attachments not within the four months' limitation, the bankruptcy proceedings do not work their dissolution. The debtor's title passes to the assignee, subject to the creditor's lien acquired by virtue of the attachment, and a judgment against the property attached may be entered, although a discharge has been granted and is pleaded in bar of the action. [No. 125.]

IN ERROR to the Circuit Court of the United

pany increased its stock, as it was authorized to do, and was enabled to sell it by reason of the withdrawal of the burden of personal liability. It is claimed by the plaintiff that the law under which his debt was contracted made all who were stockholders on the issue of the execution liable to contribute personally to the payment of his debt, and two cases in Missouri are cited to support this proposition. McClaren v. Franciscus, 43 Mo.,452; Miller v. Ins. Co., 50 Mo., 50. These cases arose before the repeal of the law. and were controversies between the holders of stock when the debt was contracted and the actual holders of it at the date of the execution. It was conceded that one class or the other were liable, and the court decided that the liability attached to the stock and followed it in the hands of the assignee, and that, therefore, those stockholders only were liable who were such at the date of the execution. This is the full force of the decisions referred to, and they give to the plaintiff the right to seek his remedy against any one who held stock subject to the incident of individual liability, at the date of the execution against the Corporation.

But as the incident of individual liability has been repealed, and neither the law nor his contract makes the defendant liable for the debts of the Company beyond the amount of its stock, it follows that the decisions of the Supreme Court of Missouri on the point invoked are not applicable,

And so, doubtless, thought that court in its decision of this case, as the point is not noticed in the opinion,

Judgment affirmed.

Suit in ejectment was brought in the court below, by the plaintiff in error, for certain land claimed by him under title from a bankrupt's assignee. Defendant claimed it under an execution sale. Judgment having been given in favor of the defendant, the plaintiff sued out this writ of error:

The case further stated by the court.

Mr. Henry Cooper, for plaintiff in error: The assignee may prosecute all suits necessary to reduce to possession the assets of the bankrupt.

Bankrupt Act, sec. 14; Stevens v. Mechanics' Savings Bank, 101 Mass., 109.

It is true he might have had himself made a party to the proceedings in the state court, provided he knew of their existence; but he is not obliged to do so. "It cannot be maintained that the assignee, who is pursuing the assets of the bankrupt in the hands of third parties, is bound to resort to the state court because there is a litigation there pending. The language of the 14th section, that the assignee may prosecute and defend all suits pending at the time of the bankruptcy in which the bankrupt is a party, does not oblige him to seek a remedy in that way.'

Traders' Bank v. Campbell, 14 Wall., 95 (81 U. S., XX., 833).

(No counsel appeared in this court for defendant in error.)

679.

(See S. C., 21 Wall., 642-647.)

State attachment, when valid under Bankrupt Act-rights of purchaser-effect of discharge.

jury, and the refusal of the judge to make certain other charges when requested. Four reand three charges were made by the judge quests to charge were presented and refused, to which exception was taken. The principal question is this: when attachment proceedings are regularly commenced, a levy made, and the property is in the possession of the sheriff, before the filing of petitions in bankruptcy when there is no stay of proceedings or other measures in the bankrupt court to arrest the suit in the state court, there being no fraud, a sale is had under the judgment of the state

Railroads in Said State." That Act grants to the

In Kent v. Downing, 44 Ga., 116, the court say: "The assignee may on his own motion be made a party, if for no other reason than to have it properly made known to the court that the defendant has become bankrupt. He has also a right to move to dismiss the attachment. The adjudication of bankruptcy must be made known to the court in some authentic mode. It may be denied, and the state court cannot take notice of the judgment of other courts by intuition. They must be brought to the notice of the court, and this cannot be done without parties."

In Gibson v. Green, 45 Miss., 209, the same principle is stated. See, also, Johnson v. Bishop, 1 Woolw., 324, opinion by Justice Miller.

a

The application of these principles gives ready solution of the question presented in the case before us. The issuing of the attachments against the property of Montgomery took place more than four months prior to the filing of his petition in bankruptcy. By the law of Tennessee the levy of the attachments gave a specific lien upon the property described in them. See, sec. 3,507, Stat. Tenn., 1871, and notes of numerous cases; Vol. 2 Thomp. & S. Stat., pp. 1463, 1464.

"No

state, for the purpose of aiding in the construction of a railroad between certain specified points, every alternate section of land designated by an odd number, for six sections in width on each side of the road. The language of the 1st section of the Act is: That there be, and is hereby granted to the State of Wisconsin" the land specified. The 3d section declares "That the said lands hereby granted to said State shall be subject to the disposal of the Legislature thereof;" and the 4th section provides in what manner sales shall be made, and enacts that if the road be not completed within ten years, further sale shall be made, and the lands unsold shall revert to the United States." The State accepted the grant thus made, and assumed the execution of the trust. The route of the road was surveyed, and a map of its location was filed in the Land Office at Washington. The adjoining odd sections within the prescribed limits were then withdrawn from sale by the proper officers of the govthe Secretary of the Interior, were delivered to the ernment, and certified lists thereof, approved by State. Subsequently, on the 5th of May, 1864, Congress passed another Act on the same subject, en

titled "An Act Granting Lands to Aid in the Construction of Certain Railroads in the State of Wisconsin." By its 1st section, additional land was granted to the State upon the same terms and conditions as those contained in the previous Act, for the purpose of aiding in the construction of the road between certain points designated in the Act of 1856, and the last Act extends the time for combeen constructed nor any part of it, and the time pleting the road for five years. This road has never for its construction has not been extended since the Act of 1864; nor has Congress passed any Act, nor force a forfeiture of the grants for failure to conhave any judicial proceedings been taken, to enstruct the road within the period prescribed; held, 1. That the Act of June 3, 1856, and the 1st sec

tion of the Act of May 5, 1864, are grants in præ

ever, intervene or take any measures in the case. He allowed the property to be sold under the judgments in the attachment suits, and those under whom the defendant claims purchased it, obtaining a perfect title to the same.

The plaintiff has no title upon which he can recover, and the judgment of the Circuit Court to that effect must be affirmed.

If we are right in these views the consideration of any other question becomes unnecessary. Judgment affirmed.

S. C.-11 Bk. Reg., 317.

Cited-91 U. S., 526; 104 U. S., 234, 573; 13 Bk. Reg., 550; 14 Bk. Reg., 17; 15 Bk. Reg., 380; 17 Bk. Reg., 289; 18 Bk. Reg., 362; 8 Ben., 530; 1 McCrary, 141; 44 Tex., 190; 23 Am. Rep., 598, 599.

FREDERICK SCHULENBERG, ADOLF BOECKELER AND LOUIS HOSPES, Partners as SCHULENBERG, BOECKELER & COMPANY, Plffs. in Err.,

v.

SAMUEL HARRIMAN.

(See S. C., 21 Wall., 44-65.)

nated to be afterwards located; when the route was fixed their location became certain, and the title, which was previously imperfect, acquired precision and became attached to the land. 2. That the lands granted have not reverted to the United States, although the road was not constructed within the period prescribed, no action having been taken, either by legislation or judicial Proceeding, to enforce the forfeiture of the grants. 3. Unless there are clauses in a statute restraining the operation of words of present grant, these must be taken, in their natural sense, to import an immediate transfer of title, although subsequent proceedings may be required to give precision to that title and attach it to specific tracts. No individual can call in question the validity of the proceedings by which precision is thus given to the title, where the United States are satisfied with them.

4. The provision in the Act of 1856, that all lands remaining unsold after ten years shall revert to the United States if the road be not then completed, is a condition subsequent, being in effect, a provision that the grant, to the extent of the lands unsold, shall be void if the work designated be not done within that period.

5. No one can take advantage of the non-performance of the conditions subsequent annexed to an estate in fee but the grantor or his heirs or successors, and, if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired in the grantee. The rule equally obtains where the grant upon condition proceeds from the government.

6. The manner in which the reserved right of the grantor, for breach of the conditions, must be asserted so as to restore the estate, depends upon the character of the grant. If it be a private grant, that right must be asserted by entry or its equivabe asserted by a judicial proceeding authorized by law, or there must be some legislative assertion of ownership of the property for breach of the condition, such as an Act directing possession and appropriation of the property, or that it be offered for sale or settlement.

*1. On the 3d of June, 1856, Congress passed an Act entitled "An Act Granting Public Lands to the * Head notes by Mr. Justice FIELD.

NOTE.-Conditions precedent and subsequent in wills and deeds. See note to Taylor v. Mason, 22 U. S. (9 Wheat.), 325.

7. Where the title to land remains in the State, timber cut upon the land belongs to the State. While the timber is standing, it constitutes a part of the realty; being severed from the soil, its character is changed; it becomes personalty, but its title is not affected; it continues, as previously, the property of the owner of the land, and can be pur

sued wherever it is carried. All the remedies are open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property.

8. Where logs, cut from the lands of the State

without license, have been intermingled with the logs cut from other lands so as not to be distinguishable, the State is entitled, under the law of Minnesota, to replevy an equal amount from the whole mass. The remedy afforded by the law of Minnesota in such case, is held to be just in its operation and less severe than that which the common law would authorize.

9. Where, in an action of replevin, the complaint alleges property and right of possession in the plaintiffs, and the answer traverses directly these allegations, under the issue thus formed, any evidence is admissible, on the part of the defendant; which goes to show that the plaintiffs bave neither property nor right of possession. Evidence of title in a stranger is admissible. [No. 100.]

Argued Dec. 4, 7, 8, 1874. Decided, Jan. 25, 1875.

IN ERROR to the Circuit Court of the United

States for the District of Minnesota. Suit was brought in the District Court of Washington County, Minnesota, by the plaintiffs in error, to recover certain pine logs. Upon petition of the defendant, the case was removed to the court below, where judgment was given in defendant's favor. The plaintiffs sued out this writ of error.

The case is fully stated by the court. Messrs. E. C. Palmer and W. M. McClure, for plaintiffs in error:

Evidence that the State of Wisconsin accepted the grants of land referred to in the bill of exceptions, should not have been received. No foundation therefor was laid in the answer, and the evidence was incompetent and immaterial.

Anstice v. Holmes, 3 Den., 244; Harrison v. McIntosh, 1 Johns., 380; Rogers v. Arnold, 12 Wend., 30; Prosser v. Woodward, 21 Wend., 205; 3 Chit. Pl., 1044, tit. Replevin; Gen. Stat. of Minn., ch. 66, secs. 79-113; Coit v. Waples, 1 Minn., 134; Finley v. Quirk, 9 Minn., 194.

The court will notice that actions of this nature are regulated by statute in Minnesota, and that when the defendant, in such action as herein, claims a return of the property replevied, he occupies, as to his own title or claim, the position of a plaintiff. Gen. Stat. of Minn., ch. 66, tit. VIII., and sec. 249.

His answer, therefore, should set up the same facts substantially which would be required in a complaint.

If the court thought that, under the Acts of Congress, the State of Wisconsin took the legal | title to the land, then, having granted the lands to the railroad companies named in the Acts referred to in the record, the title became vested in said companies and there remains; unless, upon non-performance of the conditions within the time limited, there was a reverter, in which case the title did not revert to and stop in the State, but returned to and now remains in the United States, the original grantor.

The court below, during the trial of this action (see, Schulenberg v. Harriman, 2 Dill., 402), ruled that the legal title to the lands named in the above entitled Acts was, by virtue thereof, in the State of Wisconsin; or in other words, that there was a grant in præsenti, which passed the legal title and the right of possession of the lands named to the State of Wisconsin.

It is a general rule that all public grants are

to be construed strictly and in favor of the public, and nothing passes but what is granted in clear and explicit terms.

Rice v. Railroad Company, 1 Black, 380 (66 U. S., XVII., 153); Mills v. St. Clair County, 8 How., 581; Richmond R. R. Co. v. The Louisa R. R. Co., 13 How., 81; Com. v. Erie & N. E. R. R. Co., 27 Pa., 339; Dubuque, etc., R. R. Co. v. Litchfield, 23 How., 66 (64 U. S., XVI.,500); U. S. v. Arredondo, 6 Pet., 691.

If the court should hold that the title to the lands passed to the State by force of the terms of the said Acts then we insist that such title reverted to the United States, no part of the road having been built at the expiration of the period limited in the grant; and that the court below erred in holding that the legal title to said lands still remained in the State.

Rice v. Railroad Co., 1 Black, 381 (66 U. S.,

XVII, 154); U. S v. Wiggins, 14 Pet., 334; Buyck v. U. 8., 15 Pet., 215; O'Hara v. U. S., 15 Pet., 275; Glenn v. U. S., 13 How., 250; Kennedy v. McCartney, 4 Port., 141.

Messrs. John C. Spooner, B. J. Slevens, P. L. Spooner and J. C. Sloan, for defendant in error:

Under the pleadings it was competent for the defendant to prove title in a stranger, and in that way to defeat the plaintiffs.

Dermott v. Wallach, 1 Black., 96 (66 U. S., XVII., 50); Chandler v. Lincoln, 52 Ill., 74; Van Sant. Pl., 515; Bellinger v. Craigue, 31 Barb., 534; Robinson v. Frost, 14 Barb., 537; Davis v. Warfield, 38 Ind., 461; Kennedy v. Shaw, 38 Ind., 474; Stoddard v. Onondaga Conference, 12 Barb., 573; Houghton v. Townsend, per Marvin, J., 8 How. Pr., 442.

A legislative grant by Congress does of itself, proprio vigore, pass to the grantee all the estate which the United States had in the subjectmatter of the grant, except what is expressly excepted.

U.S. v. Percheman,7 Pet.,51; U. S.v. Brooks, 10 How., 442; Lesseiur v. Price, 12 How., 59; Ladiga v. Roland, 2 How., 581; Godfrey v. Beardsley, 2 McLean, 412.

While the failure to construct the road is a breach of condition and a ground of forfeiture, the mere existence of a ground of forfeiture does not, ipso facto, work a reverter or a devestiture of the title of the State; but that, after the breach, the State holds the lands against all the world except the United States.

2 Washb. Real Prop.. 6; Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y., 121; Ludlow v. N. Y. & H. R. R. Co., 12 Barb., 440.

This is true, even though the estate is on condition that upon such a contingency it shall be void. "In this case there must be an entry made after the condition is broken, to avoid the estate.

Shep. Touch., 140; Throgmorton v. Tracey, Dyer, 126; S. C., Plowd., 159; Perk., sec. 240. This precise question was passed upon in U. S. v. Repentigny,5 Wall., 221 (72 U. S., XVIII., 627).

In Davis v. Gray, 16 Wall., 230 (83 U. S., XXI., 456), this court, considering a grant upon condition subsequent (made by the State of Texas to a railway company), treats the grant as governed by the common law rules applicable to such estates as between individuals.

In the unreported case of Warner v. Joy (see,