any right to the possession of the property sold. Freeman on Executions,.sec. 323. 2. That prescription does not begin to run against any one until he has a right of action. Angell on Limitations, sec. 42. This last rule, we have always thought, ought not to extend to those persons who, as in the case under consideration, through their own choice or laches, delay obtaining some formal muniment of title essential to the transformation of an inchoate right into a perfect cause of action. Negligence ought not to be rewarded and diligence condemned. A. C. F.

Error from Jefferson County.

Morse & May, for plaintiffs in error; Nevison & Alford, for defendants in error.

BREWER, J., delivered the opinion of the court:

Can a second mortgagee plead usury in a prior mortgage? Can he do it either to defeat or postpone the lien of such prior mortgage?

Authorities are well divided on this question. That he can, is affirmed in Indiana, Pennsylvania, Ohio, New York, Maryland and New Jersey. Cole et al. v. Bansemer et al. 26 Ind. 94; Greene v. Tyler & Co., 39 Penn. St. 361; though under the present statute the opposite ruling seems to obtain. Miner's Trust Co. v. Roseberry, 2 Law & Eq. R. 478; Union Bank v. Bell, 140. St. 200; Brooks v. Avery, 4 Comstock, 225; Post v. Dart, 8 Paige, 640; Banks v. McClellan, 24 Md. 62; Cummins v. Wire, 6 N. J. Eq. 73. That he can not, is affirmed in Alabama, Connecticut, Illinois, Iowa, Kentucky, Michigan, Missouri and Vermont. Cain v. Gimon, 36 Ala. 168; Fielder v. Varner, 45 Ala. 429; Loomis v. Eaton, 32 Conn. 550; Adams v. Robertson, 37 Ill. 45; Powell v. Hunt, 11 Iowa, 430; Huston v. Stringham, 21 Iowa, 36; Carmichael v. Bodfish, 32 Iowa, 418: Campbell v. Johnson, 4 Dana (Ky.), 177; F. & M. Banks v. Kimmel, 1 Mich. 84; Ransom v. Hays, 39 Mo. 445; Austin v. Chittenden, 33 Vt. 553. These last two cases were not mortgage cases; but the decisions plainly indicate the judgments of the courts upon the question. See also, 3 Parsons on Cont. 123; Ladd v. Wiggin, 35 N. H. 421; De Wolf v. Johnson, 10 Wheat. 367; Green V. Kemp, 13 Mass. 515.

We incline to the latter view, and to regard the plea of usury as a personal privilege. When the parties to a contract are willing to abide by its terms, why should one, not a party thereto, be permitted to interfere? If the debts were unsecured, no one would ever think that the second creditor had any right to interfere. The payor, by payment of the first note according to its terms, and without insisting on any plea of usury, might so diminish his means as to render himseif unable to pay the second note; but still that would not give the holder of the second the right to restrain such payment. And the rule should be the same, if the securities for the two notes were separate and distinct. Why, then, should the mere giving of a single security for two notes enable the holder of the second to inter

fere? And a mortgage with us, it will be borne in mind, conveys no estate in the land, but is simply a security for the debt. Chick v. Willetts, 2 Kas. 384. He may, it is true, increase the value of his security by diminishing the amount of the first lien; but he does so only by preventing parties, who have made a contract and are willing to abide by its terms, from complying with that contract.

When the first mortgage was given, the land-owner had a perfect right to give it. It stood charged with the lien as he placed it, and no one but he could question the validity of the lien for the entire amount. He still remains willing to abide by the terms of that contract, willing that the land should be held for the face of the note. The taking of the second mortgage was a voluntary matter. The mortgagee finds the property charged with a mortgage, pledged therefor as security for a specified amount; finds that the mortgagor intends that it shall be used in discharging that amount of indebtedness, and voluntarily takes the property thus burdened as security for his own debt. It is with ill grace that he thereafter endeavors to prevent the mortgagor from complying with his first contract. Yet even those who are loath to break their own promises are often willing that others shall, if thereby their own interests are promoted. Surely, a man ought to have a right to say whether he shall keep his own promise or not.

In the enactment of laws, usury laws as well as others, the legislature has regard to the general interests, the welfare of the majority. Its laws, therefore, often bear hardly in individual instances. And while it may be generally true that a limit to the amount to be paid for the use of money should be fixed, yet every one knows that sometimes such amount is not what in justice and fairness ought to be paid. Men feel honorably bound to pay more than the law authorizes. While the law ought to protect the party from the clamps of the usurer, by permitting him to repudiate all but the legal interest, yet if the borrower feels in honor bound, by the peculiar circumstances of his loan, to pay the stipulated interest, it would seem as though no stranger to the transaction should be permitted to interfere.

The judgment will be affirmed. All the justices concurring.

JURISDICTION OF UNITED STATES CIRCUIT COURTS-AMOUNT IN DISPUTE.

CULVER ET AL. v. COUNTY OF CRAWFORD. United States Circuit Court, Western District of Arkansas, November Term, 1876.

Before HON. ISAAC C. PARKER, District Judge.

1. JURISDICTION-AMOUNT IN DISPUTE-COURT WILL LOOK TO BODY OF COMPLAINT.-To give the circuit court jurisdiction, the matter in dispute must exceed, exclusive of costs, the sum of $500, and, in actions upon a money-demand, the court, in passing on the question of jurisdiction, will look to the amount stated in the body of the complaint, and will not be governed alone by the amount in the prayer for judgment.

2. UNASCERTAINED AMOUNT-WHEN WITHIN JURISDICTION. In a suit seeking to recover an amount that is not fixed, and which amount can be ascertained only by trial, the plaintiff can obtain a standing in court by laying his damages at the requisite sum.

Yonley & Whipple,for plaintiffs; Hugh F. Thomason, for defendants.

PARKER, J.:

The complaint in this case contains four counts,

each one being based upon a written promise of the county to pay a sum of money therein specified, such promise in writing being what is commonly called and known as county scrip or a county warrant. The warrants sued on are set out in the several counts in hæc verba. From these warrants, so set out and made part of the complaint, it appears that the whole amount which the plaintiff's could recover would be less than five hundred dollars. The plaintiff's pray judgment for six hundred dollars. The defendant files a motion to dismiss the suit, for the reason "that it appears upon the face of the complaint that the sum in controversy does not exceed the sum or value of five hundred dollars."

The plaintiff claims in argument that the jurisdiction of the United States Circuit Court, as to the subjectmatter of the suit, is fixed by the amount claimed in the prayer of the complaint. Sec. 1 of the act of the third of March, 1875, provides "that the Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars;" and of course, when the action is between certain parties therein named. The question presented in this case is: How is the sum or matter in dispute to be ascertained? -by going to the whole complaint, or to the prayer alone?

The sum or matter in dispute must exceed, exclusive of costs, the sum of five hundred dollars. There are no very recent decisions bearing directly upon the point in controversy in this case. We find, however, that the law regulating the removal of causes from state courts to federal courts, has a provision in regard to the amount in controversy, of the precise language in the one set out above. Judge Dillon, in his Removal of Causes from State Courts to Federal Courts, while treating of the law in regard to removal of causes, page 24, says: "The value of the matter in dispute for the purposes of removal is to be determined by reference to the amount claimed in the declaration, petition, or bill of complaint. In actions on a money-demand, the value in dispute is the debt and damages claimed, as stated in the petition or declaration, and in the prayer for judgment. For example, if the action be on a note for a fixed sum, and the principal and interest and damages do not altogether exceed five hundred dollars, it is not removable, although the prayer for judgment may be for an amount greater than five hundred dollars." The prayer for relief is generally regarded as forming no part of the cause of action, and -as having no effect upon it, and as furnishing no test or criterion by which its nature may be determined. Pomeroy, Remedies and Remedial Rights, p. 630, Sec. 580.

This is either true or false. If it is true, a court of limited jurisdiction must go to the statement of the cause of action contained in material parts of the complaint or declaration, in a case where a suit is upon a money-demand or fixed amount. If it is not true, then the prayer is bad, because it is inconsistent with the other parts of the complaint or declaration. If it is bad, it is surely a very uncertain test from which to ascertain jurisdiction. Of course, in a suit for unascertained damages, the only test of the amount in dispute is found in the prayer for relief. But, under the rules of pleading, the plaintiff, when he sues upon a money-demand, if it be on written promise to pay, or an account, must at least set out the substance of his written promise or his account in his complaint, and must make such written promise or account a part of his pleading. Then, in that case, there is no trouble in ascertaining the true amount in controversy, by

looking at the body of the complaint. In the case of Judson v. Macon County, 2 Dillon, 213, the same being a suit upon coupons of a county, Judge Dillon evidently went to the whole complaint to ascertain the total amount in controversy. It is true that the jurisdiction is not to be determined by the amount of the judgment recovered. By matter in dispute is meant the subject of litigation-the matter for which the suit is brought and on which issue is joined. In an action on a money-demand the matter in dispute is the debt claimed; and its amount as stated in the body of the complaint, and not merely the damages alleged in the prayer for judgment at its conclusion, must be considered in determining the question, whether the court can take jurisdiction.

In the section of the law regulating the appellate jurisdiction of the Supreme Court of the United States, it is provided that the matter in dispute shall exceed the sum of (now) five thousand dollars. Upon a statute similar to this, it was held by the Supreme Court, in Lee v. Watson, 1st Wall. 337, "that the matter in dispute, in an action upon a money-demand, is the debt claimed and its amount as stated in the body of the declaration, and not merely the damages alleged in the statement, in the prayer for judgment at its conclusion. The same rule is found in Abbott's United States Practice, vol. 1, p. 336; Phillip's Practice, p. 78; Conklin's Treatise, p. 132.

In this case, the amount in controversy is a sum certain fixed by contract, which the plaintiff is obliged to set forth, and from which it may be seen that the sum sued for is less than the requisite sum to give this court jurisdiction. In such a case the court, in determining a matter of so much importance as its jurisdiction, must look to the whole complaint, and not to the prayer alone.

In a suit to recover an amount that is not fixed, and which amount can be ascertained only by trial, the plaintiff can obtain a standing in court by laying his damages at the requisite sum.

MOTION SUSTAINED.

REMOVAL OF CAUSES.

AMES V COLORADO CENTRAL RAILROAD CO. United States Circuit Court, District of Colorado. Before HON. JOHN F. DILLON, Circuit Judge, and HON. MOSES HALLETT, District Judge.

1. ACT OF MARCH 3, 1875-TERRITORIAL COURTS.-The act of March 3, 1875 (II. Sess. 43 Cong. chap. 137), which provides that any suit "now pending or hereafter brought in any state court" of the description therein specified, may be removed into a federal court, is not applicable to a suit brought in a territorial court, although, on the admission of the territory as a state, such suit passed into the jurisdiction of a state court.

2. WHEN APPLICATION MUST BE MADE-CASE IN JUDGMENT.-Under that act, application to remove a cause must be made to the state court at or before the term in which, according to the local law and practice of the court, the cause could have been finally heard. Accordingly, where issue was joined nearly one month before the end of a term of the state court, and it does not appear but that a final hearing could have been had at that term, an application thereafter made to remove the cause under the act of 1875 will be denied.*

* See on this point Scott v. Clinton & Springfield R. R., 6 Bissell, 529.

IN CHANCERY. Bill to Foreclose a Mortgage.

A very full history of this case is given in connection with the opinion of judge Dillon on the motion to

docket under the act of June 26, 1876, which was announced at this term, and is reported in 3 Cent. L. J. 815.

For convenience it may be well to state the following again: The bill was filed in the district court of Boulder county, June 21, 1876; issue was joined July 24, 1876; the Territory of Colorado became a state by proclamation of the president, August 1, 1876, and the last order made at the July term of the Boulder court was entered August 21, 1876. After the motion to docket the case in this court was denied, and on the 7th of December, 1876, plaintiffs filed in the state court a petition alleging that they are citizens of Massachusetts and defendant is a corporation created by a law of the Territory of Colorado, and other facts substantially as required by the act of 1875 concerning the removal of causes from state to federal courts. A bond was also filed with condition as required by that act, the sufficiency of which was not questioned in this court. Afterwards (Dec. 9, 1876) plaintiff's filed in this court a transcript of the files, record and proceedings in the Boulder court and sought to have the cause referred. Thereupon, December 11, defendant moved to dismiss, which is here treated as a motion to remand.

E. L. Smith, for the motion; A. J Poppleton and J. I. Reddick, contra.

HALLETT J.:

This suit was brought in the district court of Boulder county, under the late territorial government, and the question here presented is, whether it may be removed into this court under the act of Congress of March 3, 1875. In terms that act extends to cases then pending or thereafter to be brought in any state court. This suit was not then pending in any court, nor was it afterwards brought in a state court, although it came into such a court by operation of law on the admission of the state sometime after it was begun.

It was ingeniously urged in the argument at the bar that, by assenting to the jurisdiction of the state court, plaintiff's did in fact bring the suit in that court; but this will not bear examination. The bringing of a suit is understood to mean the institution or commencement of it, and so the language is in R. S., § 639, on the same subject. This occurred in this instance in a territorial, not a state court. Pending the suit the character of the court was changed into a state court, and there being nothing in the record to show its federal character, the court retained jurisdiction of it. S. C. 3 Cent. L. J. 815.

Plaintiff's did not in any sense bring the suit in or into the state court. They found it there, where the law had left it in the transition from a territorial to a state government, and they consented to go on with it in that jurisdiction. In that way they elected to remain in the state court; but they did not in any reasonable construction of the act of 1875 bring the suit in that court. This view is enforced by the circumstance that Congress has provided a special way of transferring causes on the admission of a state by general law (R. S. §§, 567, 569, 704), and also in this instance by the act establishing this court, June 26, 1876. This legislation, relating to a particular class of cases and designed to carry out the general purpose of the removal acts, seems to proceed on the theory that the latter are not applicable to cases which originate in a territorial court. If Congress had consigned all federal cases to the state courts, plaintiffs would be within the reason, if not the letter, of the removal acts. But this was not done; and that which was done does not in any way tend to prove that the removal acts are by construction to be extended to cases like this-i. e., to cases not within their terms. If, however, this reasoning is unsound, there is another obstacle to the removal of the cause.

Accepting the act of 1875 as applicable to the case, by the third section it is provided that the petition for removal shall be filed in the state court, "before or at the term at which said cause could be first tried, and before the trial thereof." The term here referred to appears to be that at which the cause may be tried or heard on the merits according to the practice of the court, without regard to the special circumstances of the case, as whether the parties are ready for trial, and the like.

Certainly we can not, in determining a question of this kind, enter into every circumstance that may delay or facilitate the progress of a cause, as whether there are nice points to be decided, which require time for consideration, whether the court was otherwise occupied, and so on. Such an investigation would be in every way embarrassing and uncertain as to the result, and therefore it may be dismissed as impracti cable. We are then to inquire whether, according to the practice of the court, this suit could have been finally heard at the July term of the Boulder court, without reference to any of those circumstances that have been mentioned as likely to retard its progress. It appears that issue was joined on the 24th day of July, 1876, and the court remained in session for a period of twenty-eight days thereafter.

No time was allowed by rule of court or otherwise for taking testimony, and we can not assume that any specific time was necessary. It was claimed at the bar that our rule, 69, should govern, but that rule was not of force in the Boulder court. Palmer v. Cowdrey, 2 Col. 1. So far as the record shows, the cause could have been brought on at any time within the twentyeight days which remained of the term after issue was joined. If the writer may speak from his own knowledge of the course of practice in the territorrial courts, he feels bound to declare that it was entirely regular to bring a cause to hearing at the term in which issue was joined, and this was often done, especially in foreclosure suits. It is true that important suits often went over the term; but this was owing to the press of business, or other extraneous cause, and not to any rule of practice. It seems, therefore, that the application to remove the cause was not in apt time, not being made at the term when a hearing could have been had.

For these reasons the motion to remand will be allowed with costs.

street commissioner sold the same to a party who removed and used it. In an action to recover the purchase-price the purchaser defended, claiming that the city did not own the earth, but that it was owned by the adjoining lot-owners. There was no showing that the earth was of any peculiar value, nor did it appear whether it constituted a part of the original soil, or was earth which the city had previously placed in the street. Held, that the defence was not maintainable.

2. RIGHT OF CITY-WAIVER.-Where soil is thus taken from a street in grading it, the city has the right to make use of it in improving the streets in any part of the city. If it is not needed for this purpose, and the city disposes of it by sale without objection by the lot-owners, it will be presumed, such lot-owners waived any objection they might have made.

3. WHETHER SOIL TAKEN FROM A STREET and not needed by the city would rightfully belong to adjacent lot-owners, is not decided.

ERROR to Bay Circuit.

MARSTON, J., delivered the opinion of the court: Defendant in error brought an action of assumpsit to recover the agreed price for a quantity of dirt sold and delivered under an express contract made by its street commissioner with plaintiff in error.

It was shown upon the trial in the court below that the city, for the purpose of paving one of its streets, lowered the grade thereof, and in doing so it became necessary to make excavations and remove a large quantity of the earth in the street, which, not being needed for city purposes, was sold to plaintiff in error and others. The plaintiff in error also offered to show that the owners of lots alongside of the street never consented to, or had anything to do with removing the dirt, or selling the same; that the expense of paving said street was paid out of the highway funds of the city, and by special assessment on the property along said street. This evidence was rejected. Certain plats were offered in evidence to show that this property had never been legally platted; but it was admitted, that the proprietors had sold and conveyed lots in said city by deeds duly acknowledged, referring to said plats.

It is insisted that the owner of the lands, over which a street not legally platted is laid, retains the fee and all rights not incompatible with the public enjoyment, and that, while the city might use this dirt for city purposes, it could not sell it; that one of the main and leading elements of a sale, viz. title in the city to the dirt, was lacking, and therefore the city could not

recover.

There are several difficulties with the defense set up. We can not lose sight of the main features of this case, and dispose of the controversy with exclusive reference to the theory that the owner of the lots adjoining owned to the center of the street subject only to the public easement, that the title to the soil removed was in them, and that the city had no authority to sell the same. If it appeared that the property taken was of special value, it might perhaps be fairly inferred that the owners of the adjoining lots did not consent to a sale or relinquish their rights therein. But where, as in this case, the property does not appear to have had any special or peculiar value, and was taken, used and disposed of by the city without objection, it is but fair to presume that the adjoining proprietors took no interest whatever in the disposition that was being made of it, and made no claim either for the soil or its proceeds. In such a case, where the party has received what he bargained for, in an action to recover the price agreed upon, it is not sufficient for him to show, in order to defeat the action, that the owners of the adjoining lots did not consent to the removal and sale; he should go farther and show that they forbade the sale. And even if he had shown this to have been the fact, it is not at all clear that such would have consti

tuted a valid defense in this action. The record shows the soil to have been taken indiscriminately from all along the line of the street. Under such circumstances it would be very difficult for the several owners to trace into the possession of plaintiff in error that portion of the soil taken from off the street in front of their lots respectively, and maintain an action against him either for the identical soil taken or its value. It may be worthy of serious consideration whether their remedy, if any, would not be against the commissioner who removed the soil, or the city; but upon this point we express no opinion.

It may be a question admitting of some doubt, also, whether there is in fact anything in the record tending to show that the dirt sold and delivered was a part of the soil excavated in grading the streets for pavement. The fact that the person who made the contract with plaintiff in error, was, and had been for a number of years, street commissioner, and as such had charge of this street, would not fully warrant the inference assumed by the plaintiff in error. For ought that appears, the dirt in question may before then have been placed upon this street by the city; certainly there is nothing to show that it ever formed a part of the original soil over which this street passed, or that the owners of property fronting upon said street had or claimed any interest whatever, at any time, therein. We can not assume that any other person having an interest in the dirt sold, or that the city, by its commissioner, did not in fact have full authority to sell and deliver the same to plaintiff in error. But we need not dispose of this case on any such technical reason.

If, in grading this street, it became necessary to remove any soil, the city would have had an undoubted right to use the same in grading that or any other street in the city. In case it did not desire it for such purpose, and the owner of the property from in front of which it has been taken did not, then the city would have a clear right to remove it, and might in so doing sell or dispose of it in any way it considered proper. The judgment must be affirmed with costs.

NOTE.-Several cases have recently been decided, in which have been involved the respective rights of the public and of adjacent lot-owners in any material that may not be required in its original situs in the public way for the purpose of constructing the way, or of keeping it in repair, and the questions are of sufficient importance to justify their being notice together. It is conceded on all hands that the owner of the land, over which the public passes, retains at the common law the fee and all rights of property not incompatible with the public enjoyment of the easement. Lade v. Shepherd, 2 Str. 1004; Goodtitle v. Alker, 1 Burr. 133; Grose v. West, 7 Taunton, 39; Doe v. Pearsy, 7 B. & C. 304; U. S. v. Harris, 1 Sumner, 21; Harris v. Elliott, 10 Pet. 25; Barclay v. Howell's Lessee, 6 Pet. 498; Chatham v. Brainerd, 11 Conn. 60. "Every use to which the land may be applied, and all the profits which may be derived from it consistently with the continuance of the easement, the owner can lawfully claim." Parsons, C. J., in Perley v. Chandler, 6 Mass. 454, 456; Lane v. Kennedy, 13 Ohio, N. S. 42; Phifer v. Cox, 21 Ohio, N. S. 248; Higgins v. Reynolds, 31 N. Y. 151; Holden v. Shattuck, 34 Vt. 336; Cole v. Drew, 44 Vt. 49; Graves v. Shattuck, 35 N. H. 257; Chamberlain v. Enfield, 43 N. H. 356.

The herbage in the highway belongs to the owner of the adjoining lands, and he may maintain trespass against one whose cattle graze upon it (Stackpole v. Healy, 16 Mass. 33; Cool v. Crommet, 1 Shep. 250; Avery v. Maxwell, 4 N. H. 36; Woodruff v. Neal, 28 Conn. 165), unless the law under which the highway was laid out contemplates the running at large of cattle in the highway. Tonawanda R. R. Co. v. Munger, 5 Denio, 255. The growing trees in the highway also belong to the adjoining owner, except as they are needed for the purpose of making the way (Adams v. Emerson, 6 Pick. 56; Sanderson v. Haverstick, 8 Pa. St. 294; Overman v. May, 35 Iowa, 89; Commissioners, etc., v. Beckwith, 10 Kas. 603), and if the highway officer sell trees growing in the road, and they are cut without necessity, they are liable in trespass for so doing. Clark v. Dasso, 34

Mich. 86. See further, Jackson v. Hathaway, 15 Johns, 447; Babcock v. Lamb, 1 Cowen, 238; Williams v. N. Y. C. R. R. Co., 16 N. Y. 103; Dubuque v. Malony, 9 Iowa, 450; Dubuque v. Benson, 23 Iowa, 248; White v. Godfrey, 97 Mass. 472: Bliss v. Ball, 99 Mass. 597; Makepeace v. Worden, 1 N. H. 16; Woodring v. Forks Town, 28 Pa. St. 355; Read v. Leeds, 19 Conn. 182; Kellogg v. Malin, 50 Mo. 500. In Codman v. Evans, 5 Allen, 308, it was decided that the owner of land might maintain an action against an adjoining owner who built a bay window extending over his line, notwithstanding that portion of the land covered by the bay window was laid out and used as a highway. In Kentucky, it has been decided that the owner of land over which a highway runs, may work mines therein, not interfering with the public use. West Covington v. Freking, 8 Bush. 126.

The question is different somewhat when the public way is a city or village street, and where the law under which it has been laid out appropriates not an easement merely, but the title in fee. It has been decided in Iowa, in such a case, that the complete ownership and dominion passed to the munincipal corporation by such an appropriation, and that, if a deposit of minerals should exist beneath the surface and be worked by the adjoining proprietor, the corporation might recover from him the value of what should be taken from it. Des Moines v. Hall, 24 Iowa, 234; see also Milburn v. Cedar Rapids, 12 Iowa, 246. Compare Moses v. Pittsburg, etc., R. R. Co. 21 Ill. 516; West v. Bancroft, 32 Vt. 367; Ohio, etc., R. R. Co. v. Applegate, 8 Dana, 289; Hinchman v. Patterson, etc., R. Co., 2 C. E. Green, 76; State v. Laverack, 34 N. J., 201.

We do not find that this peculiar question has been passed upon elsewhere under like circumstances; but the view taken in Michigan of the public rights in streets under statutes, which vest the fee in the county where lands are dedicated to the public use by a town plat, seems to be different from that taken in Iowa. It is conceded that a dedication or an appropriation for street purposes is not for purposes of passage merely, but for all the public purposes for which it is customary or proper to make use of city or village streets. Warren v. Grand Haven, 30 Mich. 24. But from this case, as well as others which have not passed explicitly upon the question, the inference is fairly deducible that the public would not be recognized as having the fee, except for public purposes. In Cuming v. Prang, 24 Mich. 514, it was decided that the city authorities had no right to empower a contractor, for the improvement of a street in one part of the city, to take for the purpose gravel from an alley in another part of the city, and that the owner of the lot bounded on the alley might maintain an action for the value of the gravel taken. Compare Delphi v. Evans, 36 Ind. 90. The decision would probably not have been the same, had the locus been a street instead of an alley; there are some important differences between the two. See People v. Jackson, 7 Mich. 432; Tillman v. People, 12 Mich. 401. In Bissell v. Collins, 28 Mich. 277, the right of the city, in making a street improvement, to take the natural material within the street limits and distribute it wherever it was needed in completing the work, was fully recognized. But this right would have existed, had the public had an easement only. New Haven v. Sargent, 38 Conn. 50.

The principal case was decided on a somewhat narrow ground, but it approaches a question which there will probably be occasion to consider in future cases.

BRICKELL, C. J., delivered the opinion of the court: The first section of the bankrupt law of 1841 provided: "All persons whatsoever, residing in any state, territory, or district of the United States, owing debts, which shall not have been created in consequence of a defalcation as a public officer, or as executor, adminis trator, guardian, or trustee, or while acting in any other fiduciary capacity," should, on compliance with its terms, receive a discharge from the payment of debts. The exception was of debts, from the operation of the discharge; not of persons owing such debts, from the privileges of the law. In Chapman v. Forsyth, 2 How. 202, the Supreme Court of the United States determined that a debt due from a factor to his principal, for moneys received on a sale of cotton, was not a debt created by defalcation in a fiduciary capacity, and was within the operation of the bankrupt's discharge. The decision was followed in Austill & Marshall v. Crawford, 7 Ala. 335. It was urged by counsel, in the argument of that case, that the law of this state, the parties residing and contracting, and the agency having been executed here, must fix the character of the relation of factors to their principals, and of the debts due from them in the execution of their agency. The statute punishing criminally a willful conversion, by a factor, of the goods or moneys of his principal, it was insisted, fixed the character of the debt due from him, as created in consequence of a defalcation while acting in a fiduciary capacity. It was said by the court, the pleadings did not disclose the offence punishable by the statute; but, independent of that consideration, the operation and construction of the bankrupt law must be the same all over the United States, not varied by the local laws of the several states; and the meaning of the terms employed in it must be ascertained from the common law.

The 33d section (§ 5117 of the Rev. Sts.) of the present bankrupt law declares: "No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy," etc. The current of decision is, that a claim against a factor, for withholding the proceeds of the sales of goods consigned to him to be sold on commission, is a debt contracted by him in a fiduciary character, excepted from the operation of a discharge in bankruptcy. The decisions are collected in Bump on Bankruptcy (8th Ed.), 724. See also Treadwell v. Holloway, 46 Cal. 547; s. C., 12 Nat. Bank. Reg. 61. The difference of decision under the present law, from that prevailing under the law of 1841, is founded on the difference in the phraseology, and the reason of it is thus expressed by Judge Blatchford, whose opinion is the authority on which the other and subsequent concurring opinions rely. "The act of 1841 excluded from its benefits 'all persons owing debts created in conse quence of a defalcation as a public officer, or as execu. tor, administrator, guardian or trustee, or while acting in any fiduciary capacity.' The Supreme Court held, in Chapman v. Forsyth, that a discharge under the act of 1841 did not release the bankrupt from any such debts, and that no debt fell within the description of a debt created by a defalcation while acting in any other fiduciary capacity, unless it was created by a defalcation while acting in a capacity of the same class and character as the capacity of executor, administrator, guardian and trustee. The court held that the language of the act of 1841 was not broad enough to include every fiduciary capacity, but was limited to fiduciary capacities of a specified standard or character. That was clearly so under that act. But, in the act of 1867, the language seems to have been intentionally made so broad as to extend to a debt created by a defalcation of the bankrupt, and while