Clark & Company, and continued in their employment as a clerk, making no investments himself, but leaving his surplus earnings on interest in their hands until January, 1866, when he went to the house of a cousin in Courtland, Alabama, and while there died by an accident, leaving personal estate in Alabama. On the 27th of January, 1866, Goodloe took out letters of administration in Alabama, and in February, 1866, went to Memphis, and there upon exhibiting his letters of administration, received from the defendant the sum of money due to Quarles,, amounting to $3,455.22 (which is the same for which this suit is brought), and included it in bis inventory, and in his final account, which was allowed by the probate court in Alabama. There were no other debts due from Quarles in Tennessee. All his next of kin resided in Virginia or Alabama; and no administration was taken out on his estate in Tennessee, until June, 1866, when letters of administration were there issued to the plaintiff. There was conflicting evidence upon the question whether the domicil of Quarles at the time of his death was in Alabama or in Tennessee. The jury found that it was in Tennessee, under instructions the correctness of which we are not prepared to affirm, but need not consider, because assuming them to be correct, we are of opinion that the court erred in instructing the jury that if the domicil was in Tennessee, they must find for the plaintiff; and in refusing to instruct them, as requested by the defendant, that the payment to the Alabama administrator before the appointment of one in Tennessee, and there being no Tennessee creditors, was a valid discharge of the defendant, without reference to the domicil. There is no doubt that the succession to the personal estate of a deceased person is governed by the law of his domicil at the time of his death; that the proper place for the principal administration of his estate is that domicil; that administration may also be taken out in any place in which he leaves personal property; and that no suit for the recovery of a debt due to him at the time of his death can be brought by an administrator as such in any State in which he has not taken out administration. But the reason for this last rule is the protection of the rights of citizens of this State in which the suit is brought; and the objection does not rest upon any defect of the administrator's title in the property, but upon his personal incapacity to sue as administrator beyond the jurisdiction which appointed him. If a debtor, residing in another State, comes into the State in which the administrator has been appointed, and there pays him, the payment is a valid discharge everywhere. If the debtor, being in that State, is there sued by the administrator, and judgment recovered against him, the administrator may bring suit in his own name upon that judgment in the State where the debtor resides. Talmage v. Chapel, 16 Mass. 71. The administrator by virtue of his appointment and authority as such, obtains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to the possession of the administrator; and may sell, transfer, and indorse the same; and the purchasers or indorsees may maintain actions in their own names against the debtors in another State, if the debts are negotiable promissory notes or if the law of the State in which the action is brought permits the assignee of a chose in action to sue in his own name. Harper v. Butler, 2 Pet. 239; Shaw, C. J., in Rand v. Hubbard, 4 Met. 252, 258-260; Petersen v. Chemical Bank, 32 N. Y. 21. And on a note made to the intestate, payable to bearer, an administrator appointed in one State may sue in his In accordance with these views, it was held by this court, when this case was before it after a former trial, at which the domicil of the intestate appeared to have been in Alabama, that the payment in Tennessee to the Alabama administrator was good as against the administrator afterward appointed in Tennessee. Wilkins v. Ellett, 9 Wall. 740. The fact that the domicil of the intestate has now been found by the jury to be in Tennessee does not appear to us to make any difference. There are neither creditors nor next of kin in Tennessee. The Alabama administrator has inventoried and accounted for the amount of this debt in Alabama. The distribution among the next of kin, whether made in Alabama or in Tennessee, must be according to the law of the domicil; and it has not been suggested that there is any difference between the laws of the two States in that regard. The judgment must therefore be reversed, and the case remanded with directions to set aside the verdict and to order a new trial. MATTHEWS, J. On May 27, 1856, James B. Ewell and his wife, having the legal title in fee to the premises, made and delivered to Daggs, a promissory note of that date, payable three years after date to his order for $3,556, and to secure the same, executed and delivered to Daggs a deed of mortgage upon a tract of land in Guadulupe County, Texas, containing 1,653 acres, which mortgage was duly proved and recorded on June 5, 1856. James B. Ewell acquired the legal title to this land on April 13, 1854; but in equity, it belonged to his brother, George W. Ewell, the appellant, for whom, and with whose money it had been bought. The legal title was conveyed by James B. Ewell to his brother, George W. Ewell, on September 6, 1856, the latter having no knowledge of the mortgage to Daggs, and Daggs having, as we find from the evidence, no notice, actual or constructive, of the equity of George W. Ewell. On March 9, 1872, Daggs being a citizen of Virginia, brought his action at law against James B. Ewell and wife, on the note, in the Circuit Court of the United States for the Western District of Texas, and recovered judgment against James B. Ewell, July 14, 1873, for $3,530.93. The defense set up by James B. Ewell in that suit was usury, the actual amount of the loan having been $2,000, the residue of the note being interest on that amount until its maturity, at the rate of 20 per cent. per annum, compounded annually. A statute of Texas in force at that time on the subject of usury was as follows: That all contracts or instruments of writing whatsoever, which may in any way, directly or indirectly, violate the foregoing provisious of this act by stipulating for, allowing, or receiv ing a greater premium or rate of interest than twelve per cent per annum for the loau, payment, or delivery of any money, goods, wares, or merchandise, bonds, notes of hand, or any commodity, shall be void and of no effect for the whole premium or rate of interest only; but the principal sum of money or the value of the goods, wares, merchandise, bonds, notes of hand, or commodity, may be received and recovered." Paschal's Dig., § 3942. Payments had been made on the note prior to the commencement of the suit to the amount of $1,745, which were allowed; but the usurious interest was not deducted on the ground that the Constitution of Texas, which went into effect in 1870, and continued in force till after the recovery of the judgment, repealed all usury laws and prevented any defense on that account. The judgment not being paid, Daggs filed the present bill in equity January 14, 1875, to foreclose the mortgage and sell the mortgaged premises, to which James B. Ewell and his wife, George W. Ewell, and the heirs of James B. Wilson were made defendants. The heirs of Wilson claimed title to a portion of the land under George W. Ewell, by virtue of a sale and actual possession prior to the date of the mortgage to Daggs. The claim established their title, and from that there is no appeal. As against George W. Ewell however it adjudges a foreclosure of the equity of redemption and sale of the remainder of the premises, in default of payment by him of the amount found due upon the judgment against James B. Ewell, and the interest thereon at the rate of twelve per cent per annum. From this decree Oeorge W. Ewell prosecutes this appeal. Several defenses were made in the court below, the overruling of which are assigned for error, and which we proceed now to state and consider in their order. 1. The first defense is the statute of limitations, as contained in article 4604, Paschal's Digest, as follows: "All actions of debt grounded upon any contract in writing shall be commenced and sued within four years next after the cause of such action or suit and not after." It is admitted that the cause of action upon the note was not barred when the action upon it was commenced, the period of limitation not expiring till July 29, 1872, excluding from the computation the interval between January 28, 1861, and March 30, 1870, as required by article 12, section 43 of the Constitution of Texas of 1870. But the statute quoted does not apply to suits for the foreclosure of a mortgage and sale of the mortgaged property, such as the present. Such suits are not actions of debt grounded upon a contract in writing. They are suits to enforce the lien of the mortgage for the satisfaction of the debt secured by it. If that debt is barred by the statute of limitations, then according to the law in Texas, the foreclosure suit is barred, but not otherwise; for the mortgage is a mere incident to the debt. It was so held by the Supreme Court of Texas, in Eborn v. Cannon's Adm'r, 32 Tex. 244, where it says: "If the notes were a subsisting debt at the time of the institution of the suit, not barred by the statute of limitations, the mortgage executed contemporaneously to secure their payment was still valid as long as the debt remained unsatisfied. No matter at what time the power of the court was invoked for its collection and foreclosure and for a decree to subject the mortgaged property to the satisfaction of the debt, it was opportune if the jurisdiction of the court over the debt itself was not ousted. The mortgage was but an incident of the debt, and the incident in law, as in logic, must abide the fate of the principal." See also Perkins v. Stone, 23 Tex. 561; Duty v. Graham, 12 id. 427; Flanagan v. Cushman, 48 id. 241. There is no force in the suggestion that although the defense of the statute of limitations would not avail Jas. B. Ewell, because judgment had been rendered against him before the bar took effect, it nevertheless is a protection to Geo. W. Ewell, because he is a、 stranger to the judgment and mortgage, and the suit now pending was not brought till after the time limited for an action to recover the debt. For the present suit is not to recover the debt, nor is it a suit against Geo. W. Ewell. He is a party defendant, because he has an interest by a subsequent conveyance in the lands sought to be sold under the mortgage. He has an equity of redemption, which entitles him to prevent a foreclosure and sale by payment of the mortgage debt; but the debt he has to pay is not his own, but that of Jas. B. Ewell. If he can show that that debt no longer exists, because it has been barred by the statute of limitations, he is entitled to do so; but he must do it by showing that it is barred as between the parties to it. If not, the land is still subject to the pledge, because the condition has not been performed. It is not to the purpose for the appellant to show that he owes the debt no longer, for in fact he never owed it at all; but his land is subject to its payment as long as it exists as a debt against the mortgagor, for that was its condition when his title accrued. 2. The second defense is that of usury. The statute of Texas on that subject has already been quoted. A contract of loan at a stipulated rate of interest greater than twelve per cent per annum, is declared to "be void and of no effect for the whole premium or rate of interest only;" but the principal sum may be received and recovered. The provision of the Constitution of Texas, 44, art. 12, repealing this and all existing usury laws, is as follows: "All usury laws are abolished in this State, and the Legislature is forbidden from making laws limiting the parties to contracts in the amount of interest they may agree upon for loans of money or other property; provided this section is not intended to change the provisions of law fixing the rate of interest in contracts where the rate is not specified." 2 Paschal's Digest Laws of Texas, 1132. It is claimed by the appellant that notwithstanding this repeal of the usury laws, the rights of the parties are to be determined according to the law in force at the time the transaction took place; that by the terms of that law the contract between Daggs aud James B. Ewell was void as to the entire interest reserved and paid; that no subsequent law could make valid a contract originally void; and that the appellant is not bound by the judgment rendered against James B. Ewell in favor of Daggs, and is entitled in the present suit to make the defense. It is quite true that the usury statute referred to declares the contract of loan, so far as the whole interest is concerned, to be "void and of no effect." But these words are often used in statutes and legal documents, such as deeds, leases, bonds, mortgages, and others, in the sense of voidable merely, that is, capable of being avoided, and not as meaning that the act or transaction is absolutely a nullity, as if it never had existed, incapable of giving rise to any rights or obligations under any circumstances. Thus we speak of conveyances void as to creditors, meaning that creditors may avoid them, but not others. Leases which contain a forfeiture of the lessee's estate for non-payment of rent, or breach of other condition, declare that on the happening of the contingency the demise shall thereupon become null and void, meaning that the forfeiture may be enforced by re-entry, at the option of the lessor. It is sometimes said that a deed obtained by fraud is void, meaning that the party defrauded may, at his election, treat it as void. All that can be meant by the term, according to any legal usage, is that a court of law will not lend its aid to enforce the performance of a contract which appears to have been eutered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land, • Broom Legal Maxims, 732. And Lord Mansfield, in Holman v. Johnson, Cowp., 843, stated the ground on which, in such cases, courts proceed. He said: "The principle of public policy is this: ex dolo mala non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating, or otherwise, the cause of action appear to arise ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.” And the effect is the same, if the contract is, in fact, illegal, as made in violation of a statute, whether the statute declares it to be void or not. Bank of U. S. v. Owens, 2 Pet. 527. "There can be no civil right," said Mr. Justice Johnson, in that case, "when there can be no legal remedy; and there can be no legal remedy for that which is itself illegal." A distinction is made between acts which are mala in se, which are generally regarded as absolutely void, in the sense that no right or claim can be derived from them, and acts which are mala prohibita, which are void or voidable, according to the nature and effect of the act prohibited. Fletcher v. Stone, 3 Pick. 250. It was accordingly held in Massachusetts that a mortgage or assurance given on a usurious consideration was only voidable, notwithstanding the strong words of the statute. Green v. Kemp, 13 Mass. 515. And in such cases, the advance of the money, although the contract is illegal for usury, is a meritorious consideration, sufficient to support a subsequent liability or promise, when the positive bar of the statute has been removed. "A man by express promise may render himself liable to pay back money which he had received as a loan, though some positive rule of law or statute intervened at the time to prevent the transaction from constituting a legal debt." Flight v. Reed, 1 H. & C. 703; 13 Law Jour. Rep., N. S. Ex. 255. The effect of the usury statute of Texas was to enable the party sued to resist a recovery against him of the interest which he had contracted to pay, and it was, in its nature, a penal statute inflicting upon the lender a loss and forfeiture to that extent. Such has been the general, if not uniform, construction placed upon such statutes. And it has been quite as generally decided that the repeal of such laws, without a saving clause, operated retrospectively, SO as to cut off the defense for the future, even in actions upon contracts previously made. And such laws, operating with that effect, have been upheld, as against all objections on the ground that they deprived parties of vested rights, or impaired the obligation of contracts. The very point was so decided in the following cases: Curtis v. Leavitt, 15 N. Y. 9; Savings Bank v. Allen, 28 Conn. 97; Welch v. Wadsworth, 30 id. 149; Andrews v. Russell, 7 Blackf. 474; Wood v. Kennedy, 19 Ind. 68; Town of Danville v. Pace, 25 Grat. 1; Parmelee v. Lawrence, 48 Ill. 331; Woodruff v. Scruggs, 27 Ark. 26. Inde And these decisions rest upon solid ground. pendent of the nature of the forfeiture as a penalty, which is taken away by a repeal of the act, the more general and deeper principle on which they are to be supported is, that the right of a defendant to avoid his contract is given to him by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of the contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability which he intended to incur. That principle has been repeatedly announced and acted upon by this court. Read v. Plattsmouth, decided at the present term. And see Lewis v. McElvain, 16 Ohio, 347; Johnson v. Bentley, id. 97; Trustees v. McCaughy, 2 Ohio State, 155; Satterlee v. Mathewson, 16 S. & R. 169; 2 Pet. 380; Watson v. Mercer, 8 id. 88. The right which the curative or repealing act takes away in such a case is the right in the party to avoid his contract, a naked legal right which it is usually unjust to insist upon, and which no constitutional provision was ever designed to protect. Cooley Const. Lim. 378, and cases cited. The case of Smith v. Glanton, 39 Tex. 365, cited and relied on by counsel for the appellaut, we cannot accept as a settlement of a law of Texas to the contrary. The opinion does not consider the question, but dismisses it, on the assumption that the fact that the action was brought before the adoption of the constitution, which contained the repeal of the usury laws, prevented the application of the rule. It is our opinion therefore that the defense of usur cannot avail the appellant, by reason of the Constitutional repeal of the statute, on the continued existence of which alone bis defense rested. 3. It is next objected that there is error in the amount of the decree, in allowing interest at the rate of twelve per cent per annum on the amount of the judgment against James B. Ewell, instead of finding the amount due, irrespective of the judgment, by calculating interest upon the note itself since its maturity, giving proper credits for payments, at the rate of eight per cent per annum. The amount of the alleged error is $805.25, being the difference between $5,980.22, which is said to be the amount of the decree, and $5.174.97, which it is claimed is the true amount. The law of Texas provides that "on all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties, interest shall be allowed at the rate of eight per cent per annum from and after the time when the sum is due and payable." Paschal's Dig. of Laws, art. 3940; Rev. Stat. 1879, art. 2,976; and also that "all judgments of the several courts of this State shall bear interest at the rate of eight per cent per annum from and after the date of the judgment, except when the contract upon which the judgment is founded bears a specified interest greater than eight per cent per annum, and not exceeding the highest rate of conventional interest permitted by law, (twelve per cent), in which case the judgment shall bear the same rate of interest specified in such contract and after the date of such judgment." Paschal's Dig., art. 3943; Rev. Stat. 1879, art. 2980. The contract on which the judgment was founded stipulated for no rate of interest, the interest reserved being added to the principal in the note itself, and consequently, it is evident that the decree should not have allowed interest on the debt at a rate greater than eight per cent. The amount of the decree should have been the sum actually due upon the mortgage debt at the date of its maturity, May 27, 1859, with interest thereon at the rate of eight per cent per annum to the time of the decree, April 25, 1879, giving proper credit for payments made on account from time to time, which amounts to $5,174.97, and on which interest is to be allowed at the same rate until paid. In our opinion, the appellant is entitled to have this correction made. He is not bound by the judgment against James B. Ewell, to which he is neither party nor privy, and which was rendered after the appellant acquired his title to the land. He is consequently not cut off from his right to set up the matter, on which he now insists. Lloyd v. Scott, 4 Pet. 205; Brolasky v. Miller, 1 Stockt. 807; Berdan v. Sedgwick, 44 N. Y. 626; Post v. Dart, 8 Paige, 640; Greene v. Tyler, 39 Penn. St. 361. The decree is therefore modified in respect to the amount found to be due and the rate of interest to be allowed thereon, as already indicated, and with this modification affirmed, each party paying his own costs in this court. ATTORNEY AND CLIENT. MARYLAND COURT OF APPEALS. MERRYMAN v. EULER.* Where the relation of attorney and client exists, the law makes a presumption against the attorney and in favor of the client. In such cases the onus is on the attorney to prove the entire bona fides of any transaction between them. AP PPEAL from the Circuit Court of Baltimore City. more, and to have that put into the account it would ratify. This was refused by the appellant, who appealed from the order of the court ratifying the account which excluded his claim. The court said: "The relation of counsel and client is a fiduciary one, requiring the court to scrutinize any contract between them, and upholds only such a one as is apparently reasonable and fair. The real labor in this case was performed by Mr. Robinson, the trustee, who has been allowed a fee of one hundred and fifty dollars for his services. If Mr. Merryman will take a fee of fifty dollars for his compensation, I will ratify an account making him that allowance." Upon an examination of all the evidence in the case, we think that the court not only took the right view of the law, but also offered Mr. Merryman all that could possibly be asked under the circumstances. There was some difficulty in respect to the title that was to be sold, because of the extinction of the leases upon the property, which required some negotiation to perfect the same. This duty, it seems, devolved on the trustee to sell, and the court says he performed nearly the whole service rendered the parties, and ordered him paid accordingly from the proceeds of sale. It is not necessary to go more minutely into the facts. It is immaterial whether the appellee was drunk when the assignment was made or not; for it was abundantly clear that the relation of client and attorney existed; and under such circumstances, the law makes a presumption against the attorney and in favor of the client. In such case the onus is on the attorney to prove the entire bona fides and fairness of the transaction, which he has failed to establish to the sat William J. O'Brien, for appellee. IRVING, J. Upon the application of "The President and Directors of the German Fire Insurance Company of Baltimore," who held the first mortgage on the property, with assent therein to a decree, the Circuit Court for Baltimore city passed a decree against Henry Otto, the mortgagor, for the sale of the mortgaged property, and had appointed Lewis H. Robinson, trustee, to sell the same. It appears that the appellee, John Euler, had the second mortgage on the property, and employed the appellant to look after his rights to the surplus proceeds, after paying the first mortgage. The property was sold, and the sale reported and ratified. Appellant filed a petition in Euler's name, ask-Payne, 2 Ves. Jr., 200, the chancellor lays down the ing that he be made a party defendant, and that the surplus proceeds, after paying the first mortgage, might be awarded to him. He was made a defendant by order of court. Appellant then filed Euler's claim with the interest which had accrued added. isfaction of the court below or to us. In Walmesley v. Booth, 2 Atkyns, 27, Lord Hardwicke says: "There is a strong alliance between an attorney and his client, and a great obligation upon the attorney to take care of his client's interest; and the court will relieve a client against the extortion of asking relief, and as he consented that the bond should an attorney." In that case the client was plaintiff be regarded as security for what was actually due, the court said he would allow it to be su. In Newman v. same rule, and adverts to the fact that in Walmesley v. Booth, the bond was allowed to stand as security for the actual amount due, only because the plaintiff consented to it. All the authorities concur that the highest degree of fairness and of good faith is required from an attorney toward his client, and all their dealings will be closely scrutinized, and no contract between them will be upheld where any undue consequences result to the attorney. Weeks on Attorneys-at-Law, 441, 450, and 451; Story, Eq. Jur., §§ 312a, 312b, 312c, and authorities there collated; and Kerr on Fraud and Mistake, Subsequently the appellant filed a petition in his own name, setting up an assignment from John Euler for one-half of any sum that might be awarded Euler in the case. That agreement was dated the 25th of November, 1881 (the same day on which the sale took place), and was an assignment under seal. To the allowance of this claim on the part of the appellant, the appellee objected, and filed a petition asking its dis-151, 161, 163, 168. The attorney is supposed to have an allowance: 1st. "Because the same was procured from him when he was in a condition making him unconscious of what he was doing or the effect thereof." 2d. "Because the only professional labor performed by Merryman in the case was filing the claim of the appellee; and that the said Merryman had no right to any allowance out of the funds in the trustee's hands." The court ordered testimony to be taken, upon which two audits were stated, one allowing, and the other disallowing the claim of the appellant. The court upon the proof rejected the account allowing the assignment to Merryman, and ratified the account which disallowed it. Before finally ratifying either however the court offered to direct the allow ance of fifty dollars for appellant's services and no *Appearing in 59 Maryland Reports. ascendancy over the client, because of his relation to him, and can easily impose on his credulity; therefore transactions which would be open to no objection against a client. It is a rule of public policy. Gray, where no such relation exists, will be held invalid as et al. v. Emmons, et al., 7 Mich. 533; Brown v. Bulkley, 1 McCarter Chy., 14 N. J. 451. In the last cited case the learned Chancellor Green said, when a security is taken by an attorney from a client as compensation for his services, the presumption is that it is unfair, and the onus of proving it fair is on the attorney. In that case the court held that the transfer would not be wholly set aside, but would be held as security for what was actually the attorney's due. Conceding without so deciding, that in this case the appellant was entitled to have the assignment to him so treated, he has no ground of complaint, for the court offered to so treat it by allowing him in the accounts fifty dollars for his services, which he declined, preferring to stand on what he regarded as an assignment the court could not disregard. The court needed no further proof on the subject, and no request was made to allow more. The order of the court must be affirmed. Order affirmed. UNITED STATES SUPREME COURT ABSTRACT. APPEAL AMOUNT IN DISPUTE - MARITIME LAW.The libellant in a suit in rem, in admiralty, against a vessel, for damages growing out of a collision, claimed in his libel, to recover $27,000 damages. After the attachment of the vessel in the District Court, a stipulation in the sum of $2,100, as her appraised value, was given. The libel having been dismissed by the Circuit Court on appeal, the libellant appealed to this court. Held, that the matter in dispute did not exceed the sum or value of $5,000, exclusive of costs, as required by section 3 of the act of February 16, 1875, (18 U. S. Stat. at Large, 316), and that this court had no jurisdiction of the appeal. A decree against the vessel for $27,000 would not establish the liability of the claimant to respond for that amount in personam, unless he was the owner of the vessel at the time of the collision, and that fact must appear by the record, in order to be so far a foundation for such liability, as to authorize this court to consider the $27,000 as the value of the matter in dispute on said appeal. See Elgin v. Marshall, 106 U. S. 578: The Enterprise, 2 Curt. 317. Starin v. Schooner Williamson. Opinion by Blatchford, J. [Decided April 23, 1883.] CORPORATION -PREFERRED STOCK RIGHTS OF STOCKHOLDERS.-Certificates of preferred stock of the Ohio and Mississippi Railway Company were issued containing the following language: "The preferred stock is to be and remain a first claim upon the property of the company after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company seven per cent per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock; and whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock, shall be more than sufficient to pay both said interest of seven per cent on the preferred stock in full, and seven per cent dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings, after such payments, shall be divided upon the preferred and common shares equally, share by share." Held, that the preferred stockholders had no claim on the property superior to that of creditors under debts contracted by the company subsequently to the issue of the preferred stock, and that their only valid claim was one to a priority over the holders of common stock. In St. John v. Erie Railway Co., 22 Wall. 136, where creditors took preferred stock, it was held that they ceased to be creditors, and could be regarded only as stockholders, with a chance for dividends out of net earnings, and the power of voting, and a priority over holders of common stock, but not a priority over debts subseWarren v. King. Opinion by quently contracted. Blatchford, J. [Decided May 17, 1883.] EQUITABLE ACTION - PARTIALITY OF JUDGE — TIME OF APPEAL.- (1) A decree, in a suit in equity, set forth a hearing on pleadings and proofs, and awarded relief, but it ordered that a bill of exceptions signed by the court be filed as a part of the record. The bill of exceptions showed that the judge who held the court refused to permit the counsel for the plaintiff to argue the cause, and allowed the counsel for the defendant to determine whether the case fell within a prior decision of another judge, and refused to determine that question himself, and then directed that the decree be entered, which was in favor of the defendant. On a bill of review, filed by the plaintiff, held, that the decree must be held for naught. Though not the case of actual fraud practiced on the court or on the opposite party, what was done operated as a legal fraud in respect of the rights of such party, through the illegal co-operation of the judge with one of the parties. In McVeigh v. United States, 11 Wall. 259, an information had been filed by the United States against certain property belonging to McVeigh, to forfeit it. He appeared and put in a claim and answer. The district court struck it out because McVeigh resided within the Confederate lines and was a rebel, and condemned the property by default. This court, on a writ of error, reversed the judgment, on the ground that McVeigh was denied a hearing and the first principles of the due administration of justice were violated. (2) A decree was made by a Circuit Court, in December, 1873, against two plaintiffs. In January, 1874, they appealed to this court. In December, 1875, the appeal was dismissed for the failure of the appellants to file and docket the cause in this court. In September, 1876, a bill of review was filed for errors in law, Held, that the bill was filed in time, though not within two years from the making of the decree, because the control of the Circuit Court over the decree was suspended during the pendency of the appeal. Ensminger v. Powers. Opinion by Blatchford, J. [Decided April 23, 1883.] MARITIME LAW-SALVAGE - PASSENGERS MAY BE ENTITLED TO APPEAL. (1) A ship, towed by a steam tug down a river, came to anchor in the evening, and the tug was lashed to her side. In the night, no watch having been set, a passenger on board of her was awakened by a smell of smoke arising from a fire, which had broken out in a part of the cargo stored in the poop, and which endangered the ship and cargo. He gave the alarm to the officers and crews of the ship and of the tug; and he and the officers, crew and passengers of the tug, working together, and by means of a steam pump and hose upon the tug, and unaided by the officers and crew of the ship, put out the fire in twenty minutes. Held, that this was a salvage service, and that the passenger on board the ship, as well as the owner, officers, crew and passengers of the tug, might share in the salvage. Saving a ship from imminent danger of destruction by fire is as much a salvage service as saving her from other perils of the seas. The Blackwall, 10 Wall. 1. The shortness of the time occupied in rescuing the ship from danger does not lessen the merit of the service. The General Palmer, 5 Notes of Cases, 159 note; The Syrian, 2 Marit. Law Cas. 387; Sonderburg v. Ocean Towboat Co., 3 Woods, 146. The danger being real and imminent, it is not necessary, in order to make out a salvage service, that escape by other means should be impossible. Talbot v. Seeman, 1 Cranch, 1, 42. The fact that no serious risk was incurred on the part of the salvors does not change the nature of the service, although an important element in estimating its merit and the amount of the reward. As has been well said by Mr. Justice Curtis: "The relief of property from an im pending peril of the sea, by the voluntary exertions of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property, constitute a case of salvage. It may be a |