Opinion of the Court.

mitted to the court for adjudication. It is absolutely inconsistent with the resolution adopted by the board on the same day, December 29, 1880, calling upon the stockholders to pay in their proportions of the $4000 agreed to be paid in full of the capital stock, and under the circumstances nothing can be claimed in virtue of it.

Defendant Camden also claims the right to set off as against his indebtedness upon the stock the sum of $10,284.56, paid by him in a suit against him and Stuart to recover the price of furniture in the hotel, of which the company received the benefit, and which furniture is a part of the property contributed to the corporation. This payment, however, added noth'ing to the assets of the company. The furniture itself was a part of such assets, and was taken into consideration when the valuation of December 3, 1880, was made, and it was held correctly by the court below that, "as he has already been allowed the value of that furniture in his original payment, to allow this claim would be to credit him twice for the same thing." If a person should buy upon credit a certain piece of property, such, for instance, as a steamboat, and should turn it over to a corporation and receive certificates of stock representing its value, it would scarcely be claimed that when he paid his original vendor he should receive additional stock to the amount of such payment. In this case Camden purchased the furniture, turned it over to the company, and is presumed to have received stock proportioned to his contribution.

We have been much embarrassed in the consideration of this case by the want of the assignment of errors required by Rev. Stat. sec. 997, and the twenty-first rule of this court, and should have felt ourselves justified upon that ground in refusing to take cognizance of the case. We have, however, examined the evidence so far as it bears upon the question of these defendants' liability upon their stock subscriptions, and have found it confusing and unsatisfactory. Indeed, the vital question whether the capital stock of this corporation was ever paid in money or money's worth is so covered up and obscured by a multiplication of figures and an entanglement of details that it is almost impossible to arrive at

Opinion of the Court.

the exact truth. From this testimony, however, one thing clearly appears, viz.: that the company was incorporated with a capital stock of $150,000, and that the stockholders were content to put a valuation of $50,000 upon what had been put in at the time the company was formed. As there was apparently no motive for underestimating this value, in the absence of clear proof to the contrary, the court would be justified in accepting it as the correct valuation of the property turned over to the company. Coit v. Gold Amalgamating Co., 119 U. S. 343. But, in view of the finding of the masters that $70,000 had been paid in we are content to accept this as the true amount. As no further assessments or calls appear by the minutes of the corporation to have been made, except the $4000 which was to be in full of the balance of the subscription, the burden of proof is upon the defendants to show how, if at all, the residue of this subscription was paid. The other fact, that the call of $4000 was made for the purpose of completing the subscription of $100,000, and to be in full thereof, indicates that the directors considered their entire duty in regard to the payment of the capital stock to have been discharged. We have already held that this payment of $4000 was unavailing as against the creditors' claims. If any further payments were made, defendants should make it appear clearly and satisfactorily. They failed to satisfy the master, to whom the case was referred. They failed to satisfy the court below. They have failed to convince us. In lieu of the evidence which the nature of the case required, they have presented us a complicated mass of testimony, and have asked us to evolve from it sufficient to support their theory that, in some manner, of which apparently they have no clear comprehension, these subscriptions were paid.

In cases of this kind, referred to a master to state an account, depending, as they do, upon an examination of books, upon the oral testimony of witnesses, and, perhaps, as in this case, upon the opinions of an expert, "his conclusions have every reasonable presumption in their favor, and are not to be set aside or modified unless there clearly appears to have been error or mistake on his part." This was the rule laid down

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by this court in Tilghman v. Proctor, 125 U. S. 136, and approved in Callaghan v. Myers, 128 U. S. 617, 666, and in Kimberly v. Arms, 129 U. S. 512. See also Dean v. Emerson, 102 Mass. 480; McDonough v. O'Neil, 113 Mass. 92. We see no reason for departing from it, and think this is a proper case for its application.

Upon the whole, we agree with the Circuit Court upon the points involved in these appeals, and the decree of that court is therefore

LACASSAGNE v. CHAPUIS.

APPEAL FROM THE CIRCUIT COURT OF THE

Affirmed.

UNITED STATES FOR

THE WESTERN DISTRICT OF LOUISIANA.

No. 188. Submitted March 1, 1892. — - Decided March 21, 1892.

Under a writ of possession, on a judgment entered in January, 1886, in a suit brought in a Circuit Court of the United States by C. against M. in March, 1884, L. was evicted from land, and the agent of C. was put in possession. L. was in possession under a sheriff's deed made in August, 1885, under proceedings in another suit against M. L. brought a suit in equity, in the same Circuit Court, in April, 1886, against F. as testamentary executor of C. and individually, to have the suit of C. declared a nullity, for want of jurisdiction, and because L. was not a party to it, and for an injunction restraining F. and the agent of C. from molesting L. in the possession of the land. On demurrer to the bill: Held,

(1) The case was not one for a suit in equity;

(2) The possession of L. was that of M.; and L. as a purchaser pendente lite, was subject to the operation of the writ of possession;

(3) The proper decree was to dismiss the bill, without prejudice to an action at law.

THE case is stated in the opinion.

Mr. Alfred Goldthwaite for appellant.

Mr. A. H. Leonard and Mr. Morris Marks for appellee.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity brought by a bill filed April 15, 1886, in the Circuit Court of the United States for the Western

Opinion of the Court.

District of Louisiana, by Laurent Lacassagne, a citizen of . France, against François Chapuis, a citizen of Switzerland, in his capacity of testamentary executor of Jeanne Caroline Cavé Cavailhez (hereinafter called the widow Cavé) and in his individual capacity. The subpoena was served on the defendant in person, at New Orleans, Louisiana, May 5, 1886, and he, as such testamentary executor and individually, appeared and put in a demurrer to the bill. The demurrer was sustained, and a decree was entered dismissing the bill, from which decree the plaintiff has appealed to this court.

The contents of the bill are as follows: The plaintiff is the owner of a plantation situated in the parish of Vermilion, Louisiana, on the east side of Bayou Vermilion, having a front of 10 arpents by 40 arpents in depth, with the buildings and improvements thereon, and the plantation equipment. He acquired the ownership of the property, with Albert G. Maxwell, in judicial proceedings prosecuted in the District Court for the parish of Vermilion, in the suit of Albert G. Maxwell v. Marceline Cavailhez, and by sheriff's deed signed by the sheriff of the parish, dated August 15, 1885. The plaintiff acquired the interest of Maxwell in the property by act of sale, October 22, 1885, and thereby the whole of the plantation became his property. The widow Cavé, alleging herself to be a citizen of France, and to be the widow of Baptiste Cavailhez, deceased, on or about March 5, 1884, instituted a suit in equity in the same Circuit Court of the United States, wherein she was complainant, and Marceline Cavailhez, widow of C. H. Remick, in her own right and as tutrix of her four minor children, named Remick, and as tutrix administering the estate of said C. II. Remick, was defendant. In that suit, the widow Cavé claimed, as the widow in community of Baptiste Cavaillez, to be the owner of one undivided half interest in said plantation, and that the other undivided one-half interest therein was burdened with a tacit mortgage to secure $5310 paraphernal property, due her by the succession of Baptiste Cavailhez. The prayer of the bill in that suit was, that the plantation be decreed to be still the property "in indivision" of the estate of Baptiste Cavailhez; that the widow Cavé be recognized as

Opinion of the Court.

the owner of one undivided half of the plantation, and as a mortgage creditor of Baptiste Cavailhez, in the sum of $5310, with legal interest from judicial demand, on the undivided half of the plantation belonging to Baptiste Cavailhez; and that process issue against Marceline Cavailhez, widow of C. H. Remick, in her individual capacity, and as tutrix of her minor children, and as tutrix administering the estate of said Remick; but the bill in the suit by the widow Cavé nowhere averred that Marceline Cavailhez was in possession of the plantation when the suit was brought, either for herself individually, or as tutrix as aforesaid, or by agent or employé.

The plaintiff and Maxwell were mortgage creditors of Marceline Cavailhez, and their mortgage was duly recorded in the mortgage office of the parish of Vermilion at the time, and before the suit brought by the widow Cavé against Marceline Cavailhez was instituted; the recording operated as notice to the widow Cavé and all the world; and no right or interest of the plaintiff or of Maxwell could be passed on in that suit, or be affected by the decree therein made, without their being made parties to the suit.

The court was without jurisdiction to entertain that suit; the widow Cavé was not a citizen of France, as she falsely alleged herself to be, to give the court jurisdiction of the parties, but was a citizen of Louisiana, residing at New Orleans; a fraud was practised on the court; and the proceedings were null and void, and should be so decreed to be.

The judgment rendered in that suit, on January 11, 1886, decreed that the widow Cavé be "recognized as the lawful widow of Baptiste Cavailhez," and as such "entitled to and decreed to be the owner of the undivided half of all the property above described," including with other property the said plantation and its paraphernalia; that she have judgment against the estate of Baptiste Cavailhez in the sum of $5310, with legal interest from February 25, 1884; and that her mortgage to secure said sum and interest, on the property of Baptiste Cavailhez, to take effect from April 13, 1863, be recognized and enforced. On the 2d of February, 1886, a petition was presented to the court for a writ of possession under