mortgage." Then follow a description of the land released, by range, township, section, and quarter section, and as that day conveyed by Rudisill to Burgess, Zollinger, and Kamm; and the final clause, "Witness my hand and seal as such executor, January 23, 1875." No executor had been previously named in the release, or in the mortgage, on the margin of the record of which the release was made. The release is signed "Abraham G. Barnett, executor of the estate of John H. Barnett, deceased." When a person having title in property in different capacities, executes a deed in one capacity only, and holds the consideration received for the benefit of those entitled to it, a court of equity, at least, will be slow to hold the deed invalid for want of a more complete and formal execution. In Corser v. Cartwright, L. R. 7 H. L. 731, a man who was one of two executors of his father, and also the residuary devisee of his lands, charged with the payment of his debts, made a mortgage of the lands, reciting that he was entitled to them in fee, and not describing himself as executor. Lord ROMILLY, M. R., held that this mortgage was not an exercise of the power vested in the executors for paying the testator's debts, but was only a mortgage of the beneficial interest of the devisee, and therefore ineffectual against the testator's general creditors. But his decree was reversed by the lords justices in chancery, and their decree was affirmed by the house of lords upon the motion of Lord Chancellor CAIRNS, who said: "What I find is this, that the estates with which your lordships have to deal are clearly devised to, and the legal estate vested in, the residuary devisee, who was also one of the executors. I find him selling or mortgaging, and I find him, beyond all doubt, able to sell and able to give to a mortgagee a good title to the legal estate. I find that that legal estate is in his hands, and therefore any money that is produced by the sale or mortgage of that legal estate is subject to and chargeable with the payment of debts and legacies; and that therefore the money coming into his hands must be money which ought to be applied to the payment of debts and legacies. But then I find that he himself is an executor of the testator; that he himself is the person who ought to hold assets impressed with the liability to satisfy debts and legacies. I find, therefore, that assets which ought to be applied to the payment of debts have come into the hands of an executor, and that he has given a receipt for them. Therefore, on the one hand, the mortgagees have got the legal estate; and on the other hand, they have got a receipt from the proper person for money which ought to be applied to the payment of debts and legacies. That being so, it appears to me that their title is entire and complete." Id. 740. In Bank v. Murch, 23 Ch. Div. 138, that decision was followed, and applied to this state of facts: One of two brothers, partners in business, died, leaving a will, by which he directed his debts to be paid, and devised his real estate in trust with power of sale, and appointed his widow executrix and trustee. The widow and the surviving brother sold and conveyed real estate of which the two brothers had been tenants in common, and which was in fact partnership property, by deeds reciting that the brother in his own right, and the widow as trustee under the will, were seized of it in fee as tenants in common, but not stating that she was executrix, or that the property was partnership property. This conveyance was held to be valid, Lord Justice FRY saying: "It is plain that as executrix she could sell the whole of the partnership property." "Then it is said that if she had power so to do, yet, by omitting to state in the deeds by which she conveyed the freehold property that she was acting as executrix, she precluded herself from asserting that she was acting in that character. In my judgment, she did not. It must be borne in mind that, as executrix, hers clearly was the hand to receive the purchase moneys, and therefore those moneys came to the right hand, the hand of the person whose duty it was duly to apply the assets in satisfaction of the creditors of the deceased as well as of the beneficiaries under his will. Moreover, whether she was acting as trustee or

as executrix, she was under an obligation to do the best she could for the estate. Her fiduciary character was substantially the same, whether she was acting as executrix or as trustee. I think, therefore, that I should be straining at a gnat, if I were to hold that the mere fact that she spoke of herself in the instruments as trustee, and not as executrix, was enough to prevent the validity of a transaction which, in her character of executrix, I hold that she had the power of carrying into effect." "The legal estate passed from her, because she held it as trustee, and the money reached the hands of the person who was bound to distribute it among the persons entitled to it. I therefore overrule this objection." Id. 151-153. In the present case, the legal title, indeed, in the bond and mortgage of Rudisill, was in Abraham G. Barnett as executor, and could not, at law, be released by him in any other capacity. But the legal title in the debt, for which the bond and mortgage stood as security, and to which in equity they were incident, was in him as surviving creditor. In equity, therefore, he had the right, as surviving creditor, to release the mortgage, in whole or in part; and any consideration for such a release, whether received by him as executor or as surviving creditor, would inure to the benefit of himself, and of the estate of his testator, in equal moieties. If he had received payment of the debt, and given a receipt for it as executor, he would have held the money, half as executor, and half to his own use, just as he would have held it if he had receipted for it in his own na:ne only; and it cannot be doubted that the addition "as executor" in the receipt would not have prevented the payment from extinguishing the debt, and consequently the mortgage by which it was secured. The release which Abraham G. Barnett did execute was of part of the land mortgaged, and in consideration of receiving a mortgage of other land, the parties to the release and to the new mortgage acting in good faith, and with no intent to defraud devisees or other persons interested. The body of the release contains apt words of release by him (without stating in what capacity) of the land described "from any and all lien by reason of this mortgage ;" and he is described as executor in the testimonium clause and the signature only. Although he is described as executor in the new mortgage also, a court of equity certainly could not hold that mortgage to convey any interest to him, as executor or otherwise, if the release for which it was the consideration was void. Abraham G. Barnett was the person authorized to make the release, and the consideration for the release came into his hands for the benefit of the persons entitled to it. The interests of no one were affected by the question in which of his two characters he executed the release, and received the new mortgage. Whether he acted as executor or as surviving creditor, the fruits of the transaction belonged, in equity, one-half to himself and one-half to the estate of John H. Barnett. If the whole debt had belonged to him alone, the description of himself as executor in the release could not have prevented its operating upon his interest in the debt, and in the mortgage by which that debt was secured. As the survivor of two joint creditors, he had the same power (independently of any authority as executor) to release the debt and the mortgage, as if he had been the sole creditor. The release, therefore, notwithstanding the superfluous description of the releasor as executor, was, by reason of his being surviving creditor, binding upon the interests of the representatives of the deceased creditor, as well as upon his own; and upon this ground the decree is affirmed.

BOWERMAN et al. v. ROGERS et al.
(March 19, 1888.)

PRINCIPAL AND AGENT-LIABILITY OF AGENT TO PRINCIPAL.

Plaintiffs were dealers in sugar, residing and doing business in Boston. Defend ants were sugar brokers in New York. Plaintiffs had large quantities of sugar entered at New York, and employed defendants to attend to such entries, as well as

to make the sales of the sugar afterwards. Improper and illegal duties were charged by the government officials on these imports, and certain correspondence was exchanged by the parties, in which plaintiffs first told defendants that, if the government charged illegal duties, they must place the matter in the hands of some competent attorney, etc., and advising defendants to employ a certain attorney indicated unless defendants knew of a better, which defendants promised to attend to. The improper duties having been charged, plaintiffs wrote defendants to appeal from the "government assessing duties by tests." The defendants assumed the responsibility of taking the appeal, but asked to await the decision in another suit named. Subsequently plaintiffs instructed defendants to allow none of the cases to escape their attention, and bring actions as fast as the causes arose, and it became necessary. Held, that the correspondence showed an agreement to attend to the suits by defendants, and that, by allowing the time within which suits might be brought to recover improper duties to elapse without entering such suits, they became liable to plaintiffs for the damages.

In Error to the Circuit Court of the United States for the Southern District of New York.

E. B. Smith, for plaintiffs in error. Everett P. Wheeler, for defendants

in error

MILLER, J. The writ of error in this case is to a judgment of the circuit court of the United States for the Southern district of New York. This judgment was entered upon a verdict rendered by a jury in favor of the plaintiffs, Benjamin F. and Walter Burgess, under the peremptory instructions of the court, for the sum of $6,105.77, against the defendants, Bowerman Bros. Burgess & Sons were dealers in sugars and molasses, residing in Boston, and Bowerman Bros. were sugar brokers, residing in New York. Burgess & Sons had a large part of the articles in which they dealt, either for themselves or as agents for others, landed in New York, and entered at the custom-house there. In such cases they employed Bowerman Bros. as their agents, and it is not disputed that this agency extended to the entry of these goods at the custom-house in New York, as well as to the sale of them afterwards. With regard to two shipments of goods so entered there, from two different vessels, a question arose as to the duties assessed upon them by the collector. This controversy proceeded as far as the payment of the duties through Bowerman Bros., followed by an appeal from the decision of the collector to the secretary of the treasury, and a protest against the final action of the department. All this was attended to, and faithfully performed in due time by the defendants. They, however, did not bring suit to recover back the duties so paid, and the single question to be decided here is whether it was the duty of Bowerman Bros., under the circumstances of their employment, to have brought such a suit against the collector for the excess of duties claimed to have been imposed by him on these importations. The case arises in this way: Suits were brought by other parties who had paid similar duties upon like importations, and recoveries had against the collector upon precisely the same grounds mentioned in the protest of the plaintiffs in this suit; and in a case brought to this court the error of the treasury department was established. But the statute allowing recoveries to be had against the collector for excessive duties which have been paid requires the suits to be brought within 90 days after such payment has been made, and that period had elapsed before the decisions in those cases. It was for that reason too late for Burgess & Sons to cause suit to be brought to recover back their alleged excessive payments. Bowerman Bros. maintain that, as mere sugar brokers, it was no part of their duty to cause suit to be brought on account of the imposition of excessive duties, and that they are not liable, therefore, for the failure to do so by reason of which it is very clear the sum recovered in this suit was lost to the plaintiffs. On the other hand, Burgess & Sons insist that, whether it was a part of their duty as brokers to institute such suit or not, they had come under an obligation to do it by reason of conversation or correspondence which passed between the parties. The whole of this correspondence, and the verbal testimony of one of

the plaintiffs, which is very brief, is found in the bill of exceptions, and we concur with the judge who tried the case below that this correspondence itself makes out the obligation of Bowerman Bros. to have caused the institution of such a suit. About the only piece of verbal testimony that is of any consequence in the consideration of this matter is the statement of Mr. Burgess, on the stand, that his firm fully relied upon the defendants to attend to the matter of bringing such a suit. Some of the letters produced, which passed between them, make this very plain. On January 27, 1881, the plaintiffs wrote to the defendants as follows: "We notice the tests, and have seen the sample. They are certainly very beautiful sugars for their class. Now, we feel anxious as to the duties on the dry test, but, if they should be decided against us, we must protest as soon as duties are paid, and place the matter in the hands of a first-class lawyer,-the one employed by Messrs. Knowlton, perhaps, unless you know of a better,-to commence the suit as soon as possible, but we hope all this will not be necessary. * If the sugars are marked up on dry test, it is necessary to formally protest against the decision of the collector, and then appeal to the secretary of the treasury. This is the first step, and, when the duties are paid, to enter suit." To this the defendants replied on the next day: "Your favor of yesterday is received, and contents noted, all of which will be duly attended to." Several other letters then follow concerning other importations, and protests made by Bowerman Bros. on behalf of plaintiffs against the duties levied on those goods. On March 31, 1881, the plaintiffs wrote to the defendants: "Of course you will duly appeal from the government assessing duties by tests." On April 15th, the defendants wrote to Burgess & Sons as follows: "We have your favor of yesterday, and inclose herewith the secretary of the treasury's reply to our appeal of March 5th, (sugars per Santiago,' Jan. 25, '81.) The collector's decision is affirmed. We suppose you will wait the decision in the Welch suit before commencing proceedings. Please advise us." To this the plaintiffs replied on April 16th as follows: "We are in receipt of your favor of yesterday inclosing the reply of the secretary of the treasury to your appeal of March 5 regarding sugars ex Santiago, Jan. 25. We would await the decision in the Welch suit before commencing proceedings, if there is time. Please keep us posted in the sugar case." On April 27, 1881, Bowerman Bros. wrote to plaintiffs as follows: "Your favor of yesterday is received. The Kioto sugars are about half out of ship, and we send you to-night, by express, samples and tests of each mark. Our market is quiet but strong. We hear that the government has decided to appeal from the decision (in New York) in the Welch Case. Sales reported as below." On June 18, 1881, Bowerman Bros. again wrote to plaintiffs as follows: "We presume you have in mind the Santiago's cargo-centrifugal, Angelita-which arrived here July 6, 1880, the most of which was raised on polariscope test, one-fourth cent, and 25 per cent. above the legitimate rate of entry on Dutch standard, and will commence suit against the government in due season." To this latter the plaintiffs, Burgess & Sons, replied on June 20th, as follows: "We have your favor of the 18th, in which you say, We presume you have in mind the Santiago's cargo-centrifugal, Angelita-which arrived July 6, '80, the most of which was raised on polariscope test, one-fourth -, and 25 per cent. above the legitimate rate

6

of duty on Dutch standard, and will commence suit against the government in due season.' The cargo you refer to did not pay at all, as we understand duty above the Dutch standard, it having just escaped on dry test. Of course we must not let any of our cases escape due attention. We attend here to all our Boston cases, and enter suits as fast as they come around, and we suppose you can do the same as our agents in New York. Are we right? Please look into every case, and keep us timely informed, and whether there is anything for us to do personally, or by power.

We think the whole of this correspondence leads to the inevitable conclu

sion that the defendants, either expressly, or by fair implication, assumed the duty of causing suit to be brought within a reasonable time, living, as they did, in New York, where the transactions all occurred, where the suit must be brought, and being frequently admonished by the letters of plaintiffs to see that suit was brought in due time. This is especially evident from the last letter quoted above, in which the expectation of plaintiffs is distinctly stated that defendants would cause suit to be brought "in due season, "and an inquiry made whether they are right in that supposition. They had by the statement in their letter, "Please look into every case, and keep us timely informed, and whether there is anything for us to do personally, or by power, which is not denied, raised an implied acknowledgment on the part of the defendants that they would attend to this matter. Taking the evidence all together, it is very clear that Burgess & Sons understood that Bowerman Bros. would attend to the whole affair from the beginning to the end, and, without regard to their special occupation as mere sugar brokers, would take charge of all that was necessary to secure the rights of the plaintiffs in the matter of paying duties, making proper protests, getting the goods through the customhouse, and seeking redress by suit against the collector if that became necessary. And, that they might be sure that they were not mistaken in this understanding, the letter of the 20th of June was written, which required in good faith that, if Bowerman Bros. did not consider themselves charged with the duty of having a suit brought in due time, that they should have made a disclaimer of it by an immediate answer. It cannot be denied that the loss by Burgess & Sons of the sum of money found in the verdict was due to the failure of Bowerman Bros. to fulfill faithfully the obligation in this particular which they had assumed in this correspondence, and which Mr. Burgess swears his firm relied upon them to perform. The judgment of the circuit court is affirmed.

JOHNSON v. CHRISTIAN et al.
(April 16, 1888.)

COURTS-FEDERAL-JURISDICTIONAL FACTS NOT APPARENT OF RECORD.

The facts giving the federal courts jurisdiction must appear on the records; and where, in a suit brought in the circuit court, the bill shows that the complainants are citizens of the state where the suit was brought, and contains no allegations as to the defendants' citizenship, and that fact nowhere appears in the record, the supreme court on appeal will take notice of the absence of the averment of the necessary facts to give the court jurisdiction, and will reverse the decree.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

A. H. Garland and D. H. Reynolds, for appellant. U. M. Rose, for appellees.

BLATCHFORD, J. This is a suit in equity, brought in the circuit court of the United States for the Eastern district of Arkansas, by George Christian and Jerry Stuart, against Joel Johnson, to obtain a decree for the release of certain land from liability under a deed of trust. The defendant appeared, and answered, a replication was filed, and proofs were taken. The court, on final hearing, made a decree in favor of the plaintiffs. The defendant has appealed to this court. On looking into the record we can find no evidence of the jurisdiction of the circuit court. The bill commences in this way: "The complainants, George Christian and Jerry Stuart, citizens of the county of Chicot and state of Arkansas, would respectfully represent," etc. Joel Johnson is the sole defendant, but there is no allegation as to his citizenship, nor does that appear anywhere in the record. Under these circumstances this court must take notice for itself of the absence of the averment of the necessary facts to show the jurisdiction of the circuit court, and must reverse the