court of the state where the appeal is allowed, and a transcript of the record is filed in due time. A mere failure to execute the bond within due time may be ground for dismissing an appeal, but does not deprive the court of the right to proceed to a determination of the appeal. So, here, the waiver by the infant's guardian ad litem and next friend of a bond by Buckner and wife upon their appeal-the latter having waived an appeal-bond on his part-did not affect the jurisdiction of the court. And such is the rule of practice in the supreme court of the United States. Edmonson v. Bloomshire, 7 Wall. 306, 311; Richardson v. Green, 130 U.S. 104, 114, 9 Sup. Ct. Rep. 443; Evans v. Bank, 134 U. S.,ante, 493. The cases cited by counsel from the latter court do not announce any different rule.

We come to consider whether the record discloses any ground for holding that the decree of November 13, 1871, was obtained by fraud, as distinguished from mere error, or by collusion with the guardian ad litem. In considering this question, we have not overlooked the fact that there were replications in the present suit to both the plea and the answer of Buckner and wife, although the final decree below inadvertently states that no replication to the answer was filed. The general contention in behalf of the plaintiff is that the original and cross bills were not a genuine case, but were contrived, and the proceedings in the state court were conducted throughout, for the purpose of depriving an infant of his estate, without bringing attention to the real merits of his claim to the property in dispute. Of course, if the record disclosed a case of that character, the decree complained of would not constitute an obstacle in the way of giving relief to the plaintiff. What are the grounds upon which the charge of fraud and collusion is based?

It may be observed that no claim is made of newly-discovered evidence, and that all the facts now relied upon to show fraud and collusion were disclosed by the record before the supreme court of the state upon the first appeal, when the merits of Mrs. Buckner's claim to the property were examined. No effort has been made to prove any state of case different from that disclosed in the original and cross-suit. The issue as to fraud must be determined entirely by the record of the proceedings in the state court, and by such inferences as may be justly drawn therefrom; for no evidence, apart from that record, was introduced.

It is said that the attention of the court was not specially called to the various points now made against the theory of a trust advanced in behalf of Mrs. Buckner. That fact, if established, would not necessarily show fraud or collusion. But it does not appear what points were made in argument upon the first appeal to the supreme court of the state. Certainly, the errors assigned by the next friend in behalf of the infant were broad enough to cover every objection now raised against the right of Mrs. Buckner to the property. Those errors were, the dismissal of the original bill, the refusal to grant the relief

asked by the plaintiff, and the admission of incompetent evidence against him. Under such an assignment of errors, it was competent for the prochein ami to contend, as one of the plaintiff's counsel insists he should have contended, that "the object of making the deed of May 15, 1861, was to leave the Buckners free to take sides in the civil war against the United States without jeopardizing this large estate in the city of Chicago;" and that a party making a deed for such a purpose was in no better position, in a court of equity, than one who makes a deed to defraud his creditors. For aught appearing in the record, this view was pressed upon the supreme court of the state. The absence from the opinion of that court of any reference to it does not prove that the guardian ad litem and next friend failed to make the point, or that he purposely avoided allusion to it. If, in considering so grave a charge as that of fraud, we should indulge in conjecture as to what controlled the mind of the state court, the inference might be fairly drawn that, as this point arose out of the evidence, it was passed without notice, because the court regarded it as not sustained by the proof, or as one that ought not to control the decision of the

case.

The depositions of Simon B. Buckner and Jane C. Kingsbury were taken in the suit brought by the infant in 1870, upon interrogatories by the plaintiffs in the cross-→ suit, and cross-interrogatories by Mr. Lawrence. It is contended that these persons* were incompetent, by the laws of Illinois, to testify in support of the cross-bill, and that the guardian ad litem failed to object upon that ground to their depositions. This charge of collusion fails altogether if they were not incompetent as witnesses. By the first section of a statute of Illinois passed February 19, 1867, and which was in force when their depositions were taken, it was provided "that no person shall be disqualified as a witness in any civil action, suit, or proceeding, "except in certain specified cases, by reason of his or her interest in the event thereof, as a party or otherwise, or “by reason of his or her conviction of any crime; but such interest or conviction may be shown for the purpose of affecting the credibility of such witness. The second section provides" that no party to any civil action, suit, or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as * heir * of any deceased person, unless when called as a witness by such adverse party so suing or defending," except in certain cases that have no application here. The fifth section of the same act provides "that no husband or wife shall, by virtue of section one of this act, be rendered competent to testify for or against each other, * except in cases where the wife would, if unmarried, be plaintiff or defendant,

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** and except, also, in cases where the litigation shall be concerning the separate property of the wife; in all of which cases the husband and wife may testify for

or against each other, in the same manner as other parties may, under the provisions of this act." Pub. Laws Ill. 1867, p. 183.

It is clear from these statutory provisions that Buckner was not incompetent, by reason of his relation of husband, to testify in support of his wife's claim to the property; because, if Mrs. Buckner had been unmarried, she would have been a defendant in the original suit, and the plaintiff in the cross-suit, and also because that suit concerned her separate property. In the cross-bill he joined with his wife in asking that the trust intended to be created by the deed of 1861 be enforced, and gave his assent to any decree that would place the property under her sole control and preserve it for her benefit. This was regarded by the supreme court of the state as a renunciation by him of even a life-estate, and the decree of 1871 proceeded upon that ground. Nor was he incompetent by reason of the inhibition contained in the second section of the act; because, although a formal party to the cross-suit, he was not directly interested in the event thereof, and was not, in the sense of the statute, a party adverse to the heir of his deceased brother-in-law. The only party adverse to the heir, in respect to the issues made by the cross-suit, was Mrs. Buckner. could not have testified on her own motion, or in her own behalf, unless called by the opposite party. But, looking at the policy and language of those enactments, we perceive no reason why Buckner was not competent as a witness, in support of his wife's suit, under the first section of the act. We are also of opinion that Mrs. Kingsbury was a competent witness. She had no interest adverse either to appellant or to Mrs. Buckner. Her interest in the property was recognized by all the parties. No decree could have affected her rights. The fact that she was a party to the suit did not of itself disqualify her as a witness.

She

There are other facts in connection with the depositions of Buckner and Mrs. Kingsbury which are relied upon to establish the charge of fraud and collusion upon the part of the guardian ad litem. They are these: He was not appointed guardian ad litem in the cross-suit until Novem- | ber 25, 1870, and yet he appears from the record to have assumed the position of guardian ad litem before that date, by assenting in writing, under date of November 22, 1870, that a dedimus potestatem might be sued out, on the 30th of November, to take the deposition of Buckner, thereby waiving the benefit of a notice of ten days given by the statute in such cases; and he failed to file cross-interrogatories to Buckner and Mrs. Kingsbury. These facts contain nothing of substance, when taken in connection with other circumstances. It may be that he did not, in fact, sign the above writing until after his appointment as guardian ad litem, and that he signed it without observing its date. Be that as it may, five days intervened between his appointment as guardian ad litem and the time named for suing out the commission to take Buckner's deposition. The statutory provision requiring ten days' notice for the suing out of a commission

to take depositions is one for the benefit of the party against whom the depositions are to be read, and might be waived. The waiver of full notice, in respect to Buckner's deposition, was first signed by the attorney of Lawrence and wife; the latter being the mother and guardian of the infant. It was equally competent for the guardian ad litem or next friend to join in the waiver, unless it be assumed, as we are unwilling to do, that his fidelity is to be measured by his capacity and willingness to delay litigation, when there is nothing to be thereby accomplished. Nor is fraud and collusion to be imputed to Beckwith because he did not, after his appointment by the court, file cross-interrogatories to Buckner and Mrs. Kingsbury. Cross-interrogatories were filed by his partner in behalf of Mrs. Lawrence, and were of the most searching character. They were prefaced with formal objections, upon the ground of immateriality and incompetency, to more than 20 of the interrogatories relating to the deed of May 15, 1861, to the circumstances under which it was executed, and to the alleged trust in favor of Mrs. Buckner. And, at the hearing, objections were made to the competency of the evidence contained in the depositions for the cross-plaintiffs; but the depositions were received subject to all legal objections upon the ground of sufficiency, competency, and relevancy. There is no suggestion that the cross-interrogatories which were filed did not cover the whole ground of dispute between the parties. It would have served no good purpose for the guardian ad litem to repeat them on behalf of the infant, for Mrs. Buckner was bound to support her claim by proof; and without filing cross-interrogatories the infant was entitled to avail himself of every fact to his advantage brought out by the cross-interrogatories upon the part of his mother.

Another badge of fraud is supposed to be found in the fact that the decree dis-missing the bill and cross-bill, without prejudice, was, in fact, rendered December 31, 1870, and yet was entered as of December 24, 1870, without objection from the guardian ad litem. We assume that the object of all this was to enable the parties to get the case before the supreme court at its session commencing in January, 1871, and have it there determined at au early day. There is nothing in all this to show fraud or collusion. Of course, the guardian ad litem, by technical objections, could have postponed the hearing of the case in that court until September, 1871; but there is no circumstance disclosed by the record tending in any degree to show that the infant would have profited by such delay.

But is is said that the failure of the guardian ad litem to apply for a rehearing of the original appeal is evidence of bad faith upon his part. We cannot assent to any such view of his duty. The opinion of the state court shows that the legal questions presented by the appeal were carefully considered, and there is no ground to suppose that its conclusion would have been modified if a rehearing had been granted. Be this as it may, we

cannot agree that the mere failure of the guardian ad litem and next friend to apply for a rehearing raised any presumption of infidelity to his trust.

There

Some stress is laid upon the fact that Beck with met this suit by demurrers to the bill, and did not file au answer. This does not show fraud or collusion. was no need of making him a defendant. No relief was prayed against him. He was neither a necessary nor proper party to the relief asked. If he preferred to terminate the suit as to himself by a demurrer, it was his privilege to pursue that course.

In respect to the charge that the case was presented to the supreme court of the state upon a falsified or changed record, it is only necessary to say that there is no foundation for it in the record before us.

Without noticing other matters discussed by counsel, which we do not deem of importance, we are of opinion that the plaintiff has failed to show that the decree of November 13, 1871, or any decree subsequent to that date, was, in any degree, the result of fraud or collusion. The decree is affirmed.

Mr. Chief Justice FULLLER took no part in the consideration or decision of this case.

(135 U. S. 467)

UPSHUR COUNTY V. RICH et al. (April 14, 1890.)

REMOVAL OF CAUSES.

Const. W. Va. 1880, art. 8, § 24, after declaring that county courts shall have jurisdiction in certain matters, provides that they may exercise such other powers, and perform such other duties, "not of a judicial nature," as may be prescribed by law. Act W. Va. Feb. 23, 1883, provides that a person aggrieved by the assessment of his real estate may, after notice to the prosecuting attorney who shall protect the state's interest, apply to the county court for redress; and if, on hearing the evidence, said court shall be of opinion that there is error in the assessment, it shall correct it. Held, that the power of the county courts under this act is ministerial, and the proceeding to correct assessments is not a suit, within the meaning of Rev. St. U. S. § 639, giving the right of removal to the federal courts of suits between citizens of different states.

Appeal from the circuit court of the United States for the district of West Virginia.

Alfred Caldwell, for appellant.

BRADLEY, J. Rich and others, the appellees, owned a tract of wild land in Upshur county, W. Va., the exterior boundaries of which are supposed to contain 100,000 acres, and it was assessed for taxation for the year 1883 as containing 100,000 acres, at four dollars per acre. The owners, considering this assessment too high, applied to the county court of Upshur county for a reduction, and, after giving notice to the prosecuting attorney for the county on the 6th of November, 1883, filed the following petition: "To the Honorable the County Court of the County of Upshur, in the State of West Virginia: The petition of Benjamin Rich, William F. Reynolds, and George W. Jackson respectfully shows unto your honors that your petitioners are the owners in fee-simple of a certain tract

of land lying partly in said county of Upshur, and in the adjoining counties of Randolph and Braxton, but mostly in Upshurg county, the exterior boundaries of which tract are said to contain 100,000 acres; that said tract of land has been charged and assessed on the land books of the proper district of the said county of Upshur for taxation for the year 1883 as containing. 100,000 acres, whereas there are various parcels of land lying within said exterior boundaries which are properly to be deducted from the area therein, and thereby reduce the quantity to be charged to your petitioners for taxation. And your petitioners further show that the assessment of said tract of land on said land books is at a valuation of $400,000, which they charge is unjust, extravagant, excessive, and illegal, and, as compared with the valuation of lands of like character in said county, wild and unimproved, the said valuation of said tract of 100,000 acres is grossly above and beyond that of adjacent lands. Your petitioners therefore pray that the state of West Virginia and the county of Upshur may be made parties defendant to this their petition, and that the said erroneous and illegal assessment be corrected, and the quantity charged them, as aforesaid, reduced; and they will ever pray," etc. On the same day they filed a petition for the removal of the case to the circuit court of the United States for the district of West Virginia, alleging themselves to be citizens of Pennsylvania, and that the state of West Virginia and county of Upshur, in the said state, were necessary parties to the said controversy. The petition was grounded upon an affidavit of one of the parties that, from prejudice and local influence, the petitioners would not be able to obtain justice in the state court. The county court refused to order a removal; but on a petition being presented to the circuit court of the United States, with a transcript of the proceedings, that court took cognizance of the case, and denied a motion to remand it to the county court. Thereupon the county court of Upshur county, by two of its members, (being a majority of the court,) filed a plea to the jurisdiction, alleging for cause that the application of the petition ers for relief in the county court was not a suit, and did not involve a controversy between a citizen of West Virginia and a citizen of any other state; and that, ass to the taxes belonging to the state, the county court was merely the organ, under the law of West Virginia, to act upon the matter of relief asked for; and the same as to the taxes belonging to the county; and that neither the county nor the state was a party, by process or otherwise, to the said application. This plea was rejected on motion of the petitioner. Afterwards the case was heard, and the circuit court made the following decree: "Benjamin Rich, W. F. Reynolds, and George W. Jackson vs. County of Upshur. Upon application to correct an erroneous assessment of lands in the county of Upshur, West Virginia, removed into this court December, 1883. This cause having been regularly docketed in this court, this day came the said Benjamin Rich, Wm. F.

Reynolds, and George W. Jackson, by | their attorneys, and the said county of Upshur, in the state of West Virginia, by Messrs. John Brannon and A. M. Poundstone, who represent the county of Upshur, and the prosecuting attorney for said county, and it appearing to the court that the application for correction of the assessment herein complained of was made within the time prescribed by law, to-wit, on the 16th day of April, 1883, and that the prosecuting attorney had due notice thereof, and the court, having heard the evidence, and seen and inspected the papers and records in the cause, and heard the arguments of counsel thereon, upon mature consideration, doth find

The court then finds the assessment erroneous; that it should have been for only 25,000 acres of land instead of 100,000, and should have been at $2% per acre instead of $4, and ordered it to be corrected accordingly,-and decreed further as follows: "That said Benjamin Rich, Wm. F. Reynolds, and George W. Jackson be, and they are hereby, relieved from the payment of so much and such part of the taxes and levies extended for said years 1883 and 1884 as may and do exceed the amount of taxes and levies proper to be assessed upon said lands, as herein and hereby reduced in quantity and value. And it is further ordered that copies of this order be certified by the clerk of this court to the county court of Upshur county, the sheriff of said county, the assessor of the first district thereof, and the auditor of West Virginia; and it is further ordered that no costs be taxed for or against either party.

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This is the decree appealed from, and the principal objection taken to it is that the case was not properly removable from the state court to the circuit court of the United States. This objection is sought to be sustained on two distinct grounds: (1) That the case is not a suit within the meaning of the removal act; (2) that, if it is a suit within the said act, the state of West Virginia is a necessary party to it. The act under which the case was removed was the third clause of section 639 of the Revised Statutes, which declares: "Third. When a suit is between a citizen of the state in which it is brought and a citizen of another state, it may be so removed on the petition of the latter, whether he be * * if * plaintiff or defendant, * he makes and files an affidavit, stating that he has reason to believe, and does believe, that, from prejudice or local influence, he will not be able to obtain justice in such state court." It must be "a suit" between citizens of different states. Is this such a suit? We do not see how it can be called such. The original petition made the state of West Virginia and the county of Upshur parties defendant; and the petition of removal alleged that the state and county were necessary parties to the controversy. If, therefore, the proceeding could be called a suit at all, it was a suit against the state as well as the county, and such a suit is not within the category of removable cases. A state is not a citizen, if a county is. But is an appeal from an assessment of property for taxa

tion a suit within the meaning of the law? In ordinary cases it certainly is not. By the laws of all or most of the states, taxpayers are allowed to appeal from the assessment of their property by the assessor to some tribunal constituted for that purpose, sometimes called “a board of commissioners of appeal;" sometimes one thing, and sometimes another. But, whatever called, it is not usually a court, nor is the proceeding a suit between parties. It is a matter of administration, and the duties of the tribunal are administrative, and not judicial in the ordinary sense of that term, though often involving the exercise of quasi judicial functions. Such appeals are not embraced in the removal act.

In this respect the law of West Virginia does not differ from that of most other states. It is true that the tribunal of appeal is called the "county court," but it has no judicial powers, except in matters of probate. In all other matters it is an administrative board, charged with the management of county affairs. It formerly had general judicial powers, but by an amendment to the constitution of West Virginia, adopted in 1880, in place of the eighth article of the constitution of 1872, it was provided as follows: "Sec. 22. There shall be in each county of the state a county court, composed of three commissioners, and two of said commissioners shall be a quorum for the transaction of business. It shall hold four regular sessions in each year, at such times as may be fixed upon and entered of record by the said court. Provisions may be made by law for holding special sessions of said court. To this "court," so-called, was given the custody of the county records, and it was further declared that (section 24) "they shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives,guardians, committees, curators, and the settlement of their accounts, and in all matters relating to apprentices. They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings, ferries, and mills, with authority to lay and a disburse the county levies. * They

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shall, in all cases of contest, judge of the election, qualification, and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law. Such courts may exercise such other powers and perform such other duties, not of a judicial nature, as may be prescribed by law." Under the power given by the last clause, the legislature of the state, on the 23d of February, 1883, passed an act by which, among other things, it was declared as follows: "Any person feeling himself aggrieved by the assessment of his real estate, made under the provisions of this act, may, within one year after the filing of a copy of such assessment with the clerk of the county court, apply, by himself or his agent, to the said court for redress, first giving reasonable notice in writing of his intention to the