Dissenting Opinion: Bradley, J.

for the time he held or controlled the same, within the preceding year, of all moneys, credits, or other effects within that time invested in, or converted into, bonds or other securities of the United States or of this State, not taxed, to the extent he may hold or control such bonds or securities, on said day preceding the second Monday of April; and any indebtedness created in the purchase of such bonds or securities shall not be deducted from the credits under the fourteenth item of this section."

Of the right of the State of Ohio to make this provision we have no doubt. Its purpose is not to enable that State to tax the securities of the United States, but to permit it to tax other investments, moneys on hand and on deposit subject to order, while it combines in the same exemption the securities of the general government and those of the State. We know of no principle which forbids that State from taking the whole period of a business year already past as the best means of ascertaining how much the taxpayer shall be required to pay on property which is admitted to be taxable, and how much he shall deduct for the non-taxable securities of the State and of the United States.

As this was the method under which the plaintiff in error in this case was taxed, and as he was charged with no more than he was liable to pay under a wise and equitable law, we do not see any error in the judgment of the Supreme Court of Ohio, and it is accordingly

Affirmed.

MR. JUSTICE BRADLEY: I dissent from the judgment. I do not defend Mr. Shotwell; but it is a question of law, and the law of Ohio seems to me repugnant to the act of Congress which exempts the securities of the United States from taxation.

The law is this: The property that a man has on the second Monday in April is the amount of property which he is to return for taxation that year. Now, if a man chooses to buy United States securities one month or one day before that time, he has a perfect right to do it, and as the act of Con

Syllabus.

gress declares that United States securities shall not be taxed, the State has no right to tax him for them. But the legislature of the State of Ohio undertook to get around that law in this way; they say that a man shall be exempted from taxation for United States securities owned by him on the second Monday in April, only in proportion to the time that he has held them, so that if he has held them only one day he would be exempted only one 365th part of the amount; whilst, if the man of whom the taxpayer bought them, held them 364 days, he would get no exemption at all; he would be taxable for the consideration which he received for the securities and which he held on the second Monday in April. Therefore, in Ohio United States securities are only exempted from taxation in a limited manner, that is, in proportion to the time they have been held. All other property is treated differently. If anything is unconstitutional, it seems to me that this is.

GOODWIN . FOX.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 168. Argued January 18, 21, 1889. Decided March 5, 1889.

By a written agreement between two parties, one acknowledged that he was indebted to the other in the sum of $70,000, “over and above all discounts and set-offs of every name and nature;" and it was stated that the latter was to take up and satisfy certain other indebtedness of the former, and that the former had conveyed to the latter a stock of goods, and storefixtures, notes, books and accounts, and a piece of land," with power forthwith, at such times and in such manner as the latter should "deem best, to convert the said goods," "fixtures, notes, accounts and premises into money, and apply the proceeds to the payment of said indebtedness," with interest, and also a certain farm; and it was agreed that if the former should, within six months from date, pay said indebtedness, the latter would reconvey the farm, but, in default of such payment, might foreclose" the certain mortgage comprised in " the conveyance of the farm and the agreement. The conveyances mentioned in the agreement were made, and the title to the piece of land and the farm and the right to the indebtedness, came into the hands of the plaintiff, who sold the land, and

Opinion of the Court.

brought this suit in equity against the original debtor for an account of the amount due on the security of the farm, and for a foreclosure of the debtor's equity of redemption in the farm: Held,

(1) The debtor could not go behind the agreement fixing the debt at $70,000, because there was no sufficient evidence to impeach it, on the ground that his signature was obtained by fraud or duress, or without his full knowledge of its provisions and consent to its terms;

(2) The debtor was entitled to be credited only with the sums realized by the creditor from the sale of the personal property and piece of land, and not with sums estimated, by testimony, as their value at the time of the agreement;

(3) Under the statute of Illinois, where the transaction took place, the creditor was entitled to interest on the $70,000 from the expiration of the six months, and on the amount paid by him on the other indebtedness from the time of paying it;

(4) The amount of a mortgage given by the creditor on the farm was to be credited to the debtor and paid by the farm.

Section 858 of the Revised Statutes in regard to the exclusion of a party to a suit as a witness, makes every party a competent witness except in cases covered by the proviso to the section.

IN EQUITY. The case is stated in the opinion of the court.

Mr. Charles H. Wood for Kate W. Goodwin and Charles S. Goodwin, appellants.

Mr. John N. Jewett filed a brief for Sarah E. R. Smith and Charles M. Smith, appellants.

Mr. William C. Goudy for appellees.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

On the 20th of February, 1869, a written agreement was executed by Samuel H. Fox and I. Willard Fox, to which was appended a memorandum signed by Samuel H. Fox, the papers being as follows:

"Whereas I. Willard Fox is indebted to Samuel H. Fox and Henry W. Fox, partners doing business under the firm name and style of Fox & Co., in the sum of seventy thousand dollars, ($70,000,) over and above all discounts and set-offs of every name and nature; and whereas said Fox & Co., at the request of said I. Willard Fox, have taken up and satisfied, or [are]

Opinion of the Court.

about to take up and satisfy, certain other of the indebtedness of said I. Willard Fox, some of such indebtedness, and to the amount of about sixteen thousand dollars, ($16,000,) more or less, being satisfied by payment thereof, and to the amount of about thirty thousand dollars, ($30,000,) more or less, being so satisfied by payment at the rate of fifty cents on the dollar, whereby the said I. Willard Fox has become further indebted to said Fox & Co.; and whereas the said I. Willard Fox has sold and conveyed to the said Samuel H. Fox all and singular the stock of goods, wares and merchandise with the store fixtures, in the city of Chicago, including therewith his notes, books and accounts of every name, nature and description, and also the premises known as No. 376 North La Salle Street, being lot two (2) in block twenty (20), in Bushnell's Addition to Chicago, Illinois, in said city of Chicago, with power forthwith, at such times and in such manner as he, said Samuel H. Fox, shall deem best, to sell and collect and convert the said goods, wares, merchandise, fixtures, notes, accounts and premises into money, and apply the proceeds to the payment of said indebtedness to said Fox & Co., both said original indebtedness and that so taken up by them, at the rate paid therefor, with such interest added thereto as the said Samuel H. Fox or Fox & Co. shall have to pay thereon, or on any portion thereof, and has also conveyed to said Samuel H. Fox his farm in Lake County, Illinois, known as the Lake Zurich farm: Now, therefore, the said Samuel H. Fox agrees, that if the said I. Willard Fox shall and will, within six months from the date hereof, pay the entire amount of each name and kind of said indebtedness, or such portion thereof as remains at that time unpaid, then he, said Samuel H. Fox, shall and will reconvey the said Lake Zurich farm to said I. Willard Fox, but in default of such payment it is hereby agreed by the parties hereto that the said Samuel H. Fox may immediately foreclose the certain mortgage comprised in said conveyance of said Lake Zurich farm and this agreement.

"And the said I. Willard Fox hereby agrees, that, in case proceedings for such foreclosure be commenced, that he will interpose no defence thereto, nor attempt, by injunction, bill in equity, o. in any other way, to hinder or defeat the same.

Opinion of the Court.

"Witness the hands and seals of the said Samuel H. Fox and I. Willard Fox, this twentieth day of February, A.D. 1869.

"And the said Samuel H. Fox hereby agrees to release a certain mortgage which he has on a portion of said Lake Zurich farm, the indebtedness secured by said mortgage having become merged in said debt of seventy thousand dollars. "SAMUEL H. Fox."

By deeds in fee simple, I. Willard Fox and his wife conveyed to Samuel H. Fox the North La Salle Street lot and the Lake Zurich farm, mentioned in the above agreement, simultaneously with its execution.

On the 17th of February, 1877, Kate W. Fox brought a suit in equity, in the Circuit Court of the United States for the Northern District of Illinois, against I. Willard Fox and his wife. Kate W. Fox was the widow of Henry W. Fox, who, with Samuel H. Fox, composed the firm of Fox & Co. Henry W. Fox had died in 1876, and by his will Kate W. Fox was made his sole executrix and sole devisee. In her bill she set forth the contents of the above agreement, without stating that it was in writing. The bill averred that, in pursuance of the agreement, Fox & Co. paid the $16,000 and the $30,000 of the indebtedness of I. Willard Fox, named in it; that I. Willard Fox and his wife executed and delivered to Samuel H. Fox deeds in fee simple of the Lake Zurich farm and the La Salle Street lot; and that I. Willard Fox assigned to Samuel H. Fox the goods, wares and merchandise, store fixtures, notes and accounts, mentioned in the agreement.

The bill also alleged that it was then further agreed between I. Willard Fox and Fox & Co., that the former should carry on his business, which was at Chicago, Illinois, in connection with the said stock of goods, wares and merchandise, notes and accounts, as though no such assignment thereof had been made to Samuel H. Fox; that Fox & Co., who were manufacturers of glass, in the State of New York, should advance and