peal the judgment in their favor, the present defendants in their turn might bring a fresh action to set that judgment aside on the ground of perjury of the principal witness and subornation of perjury; and so the parties might go on alternately ad infinitum. There is no distinction in principle between the old common law action and the old chancery suit, and the court ought to pause long before it establishes a precedent which would or might make in numberless cases judgments supposed to be final only the commencement of a new series of actions. Perjuries, falsehoods, frauds, when detected must be punished, and punished severely; but in their desire to prevent parties litigant from obtaining any benefit from such foul means, the court must not forget the evils which may arise from opening such new sources of litigation, amongst such evils not the least being that it would be certain to multiply indefinitely the mass of those very perjuries, falsehoods and frauds.

BAGGALLAY, L. J.:

With reference to the observations which have just been made by the Lord Justice, I only wish to state that, whilst I am fully sensible of the evils and inconveniences which must arise from reopening what are apparently final judgments between litigant parties, I desire to reserve for myself an opportunity of fully considering the question how, having regard to general principles and authority, it will be proper to deal with cases, if and when any such shall arise, in which it shall be clearly proved that a judgment has been obtained by the fraud of one of the parties, which judgment but for such fraud would have been in favor of the other party. I should much regret to feel myself compelled to hold that the court had no power to deprive the successful but fraudulent party of the advantages to be derived from what he had so obtained by fraud.

justice granted the motion, and the respondent alleged exceptions.

Webb & Haskell with C. W. Larrabee, for the respondent; F. Adams, for petitioner.

DANFORTH, J., delivered the opinion of the

court:

This is a petition by an administrator, asking a review of a judgment obtained, as he alleges, through fraud and collusion against his predecessor. In Elwell v. Sylvester, 27 Me. 536, it was held that a review can be granted only upon the petition of a party to the judgment, or some one representing his interest. In this case the petitioner is neither; certainly not a party. Nor does he represent the interests of the party, but may be in a position antagonistic. True, he is the successor of a former administrator, but derives no right to the property to be administered upon from or through him, but takes it directly from the decedent. He is "appointed to administer upon that portion of the estate of a deceased person not before administered upon." 2 Redfield on Wills, 89. He may even maintain an action against his predecessor, as his title dates from the death of the testator or intestate. Id. 91. There can, therefore, be no privity between them, nor can the one in any sense be said to represent the other. Nowell v. Nowell, 2 Me. 75-80; Grout v. Chamberlin, 4 Mass. 611; Freeman on Judgments, § 163.

This principle of the common law seems to be conceded in the argument; but it is contended that it has been changed by the provisions found in R. S. ch. 87, §§ 45 and 6. If this statute is to have the effect claimed for it; if by it the administrator de bonis non is as regards the judgment made a privy with his predecessor, the result must be, that on the principal cause alleged for a review, that of collusion, the petition must fail. The party himself could hardly take advantage of his own wrong, and his privies would be equally bound with him. But such is not the effect of the statute. The remedies there provided after judgment obtained are scire facias, an action of debt and a writ of error. Neither of these changes the title to the property involved. The administrator de bonis non still claims under the decedent, takes his title and not that of his own predecessor. In neither of these remedies can the original judgment or execution issued thereon, be satisfied by a levy upon the property in the hands of the new administrator. It can only be the foundation for a new process, under which, for the reason that the present petitioner is not a party or privy, he may set up the alleged fraud and collusion as a defense. If judgment is obtained under a proceeding in debt, or scire facias, then to such the new administrator becomes a party, but only when the original judgment becomes merged in the new

one.

It is true that under a writ of error the original judgment is not merged in a new one, but is either affirmed or reversed. If affirmed it stands as before, and if unsatisfied the same remedies are open to the plaintiff; if reversed he must resort to such legal remedies as are prescribed for recovering his original claim.

Thus while under these remedies supplied by the the statute the administrator de bonis non may be brought into privity with the claim established by the original judgment, yet it is not with the judg ment itself, but another in which that is merged after due process of law.

It is a very significant fact as bearing upon this question, that in the enumeration of remedies provided for the administrator de bonis non, that of a petition for, or a writ of review, is not mentioned. As the statute is in derogation of the common law, and cannot be extended beyond the meaning derived from a fair construction of its terms, this would seem to be conclusive. This appears to be in accordance with the principle established in Paine v. McIntire, 32 Me. 131. When that decision was made the statute provided for all the remedies now authorized except that of debt, and it was there held that debt would not lie, although the result would be substantially the same in scire facias and debt; yet as the latter was not specifically mentioned, the remedy must be under the former only. Much less can we by construction extend the statute so as to cover by review a remedy so entirely different in its procedure and results from any authorized by its terms. Exceptions sustained.

NOTE,-The reporter has also sent with this case a useful letter from the late Chief Justice Ether Shepley to Judge Peters, both at the bar at its date, December 28, 1858, with a postscript showing the then estimated value of legal services.

MR. PETERS:

Yours of the 25th is before me. The case in 4 Mass. 611, is founded on the case of Gaites v. Gough, Yel. 33 and Cro. Jac. 3, which decided that the admr. de bonis non could not maintain sci. fa. to have benefit of a judgt. recovered by the first personal rep. of the es⚫tate, because not a party to the record and not a privy to it. Hence, the necessity for the decision of Turner v. Davies, 2 Saund. 149, that the deft. in such judgt. might sue out a writ of audita querel a and have that judgment declared void. And an admr. de bonis non must commence a new suit for the same cause of action. But the parties to the judgment thus declared void were legal parties representing legally the rights of the party living and of the party deceased in the subject matter of the contest. And so it was decided that they were when the judgment was against and not in favor of the ex. or ad. who had deceased: Snape v. Norgate, Cro. Car. 167, and in such case the judgment might be enforced against an admr. de bonis non. To remedy the difficulty occasioned by the case of Gaites v. Gough, the statute of 17 Char. 2, c. 8 was passed. The case in 4 Mass. truly represents the common law, in its actual state, and this is admitted in Dale v. Roosevelt, 8 Cow. 333, where the decision is different, because the statute of Char. has been reenacted in N. Y. While in the case of Dikes v. Woodhouse, 3 Rand. 287, the court of Virginia appear to have repudiated the case of Gaites v. Gough as absurd, and hold that judgments recovered by and against an ex. or admr. deceased are alike valid. This case I have not been able to see in the book in which it is reported, and state it from digests and from what is said of it in the case of Stacy v. Thrasher, 6 Howard, U. S. 44, in which the opinion adverts to the inconsistency of the decisions respecting the effect of a judgment recovered by and agst. an ex. or ad. who has deceased.

Under this condition of decisions our court prov

ably might not decide in accordance with the court in Virginia. But it is not necessary that it should do so to allow an ad. de bonis to prosecute a suit commenced by an admr. who ceases to rep. the estate. The suit is one in behalf of the intestate. If the first admr. had deceased, that suit would survive by the provisions of statute, c. 87, § 8; and if they survive there is a necessary implication that they must be prosecuted by the person legally entitled to represent and control the subject-matter in contest, and that person can only be an admr. de bonis. Our courts can not decide that a judgment recovered by an admr. whose powers cease by revocation or removal, is void, for the statute, c. 64. § 54, makes all his legal acts valid, and these provisions, taken in connexion with those of § 16, exhibit the intention that when an admr. is permitted to resign, his legal acts should remain valid, because otherwise it would be "detrimental to the estate" which it is not to be. Although the case of a resignation of an admr. and an appointment of one de bonis non does not come within the letter of c. 82, § 30, yet when considered in connexion c. 87 § 8, preserving actions, and with the provisions of c. 64, § 16, it seems to me to come within the mishaps designed to be provided for and remedied by it.

I find in 2 Shep. Dig. U. S. p. 813, art. 529, case of Elliott v. Eslava, 3 Ala. 514, to which book I have no access here, that decision is said to be that the resignation of an admr. does not abate a pending suit, and that it may be prosecuted in the name of his successor; that the same doctrine is stated in Skinner v. Frieson, 8 Ala. 915, 7 U. S. Dig. p. 571, art. 223, and same in case of State v. Murray, 3 Eng. (Ark.) 199: 9 U. S. Dig. 242, art. 247. Whether in these cases there was any statute provision, I have here no means of ascertaining

In my opinion such should be the decision in this State, especially as the action being com'd by intestate survivors. Most respectfully,

December 28, 1858.

ETHER SHEpley.

P. S.-This has cost labor enough for $10, but if the amount pending in your case is small, or other circumstances render it more fitting, send me $5.

REMOVAL OF CAUSES.

WEBBER v. HUMPHREYS.

United States Circuit Court, Eastern District of Missouri, April, 1879.

A motion, under the Missouri statute as to corporations, for execution against a stockholder can not be removed to the Federal court. It is not a "suit at law, or in equity," within the meaning of these words, as used in the statutes giving the right of removal o causes from State to Federal courts.

Mr. Wieting for the motion; Mr. Shepley, contra. DILLON, Circuit Judge (orally):

This is a motion by Webber to remand the case to the State court. Strictly, perhaps, it should have been in the form of a motion to dismiss. It appears upon the record filed in this case that Webber, sometime since, recovered a judgment against this corporation, known as the Illinois & St. Louis Bridge Company, for a considerable sum of money. It also appears that an execution has been issued on that judgment and returned

nulla bona. That judgment was recovered in the circuit court of the State, for the city of St. Louis, and the execution on the judgment issued out of that court. When the execution was returned, the plaintiff in the judgment made a motion for execution against, among others, Solon Humphreys, alleging that he was the holder of a large number of shares of the stock of this corporation, and that those shares had not been fully paid. That motion was based upon this clause of the statute of the State of Missouri (1 Wag. St. 291, sec. 13) occurring in the chapter on Corporations: "If any execution once issued against the property and effects of a corporation, and there cannot be found whereon to levy such execution, then such execution may be issued against any of the stockholders to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon." The double liability having been abolished in 1870, the present attempt is to compel Mr. Humphreys to pay the amount alleged to be due on his stock, as a debtor of this corporation. Substantially, when we arrive at the essence of this proceeding, the idea is this, that Mr. Humphreys, as the holder of unpaid stock, is a debtor to the corporation, and creditors of the corporation have a right to subject that debt to the payment of their claims. This provision that execution may issue against the stockholder of an insolvent corporation on the return of nulla bona is accompanied by the proviso, viz.: “Provided, always, that no execution shall issue against any stockholder except upon an order of the court in which the action, suit or other proceedings shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the persons sought to be charged; and upon such motion, such court may order execution to issue accordingly." When proceedings of the character above named have been had, an execution issues against the stockholder to enforce his liability to pay. Such a motion was made in the circuit court of the State in which this judgment was rendered, and notice was given to Mr. Humphreys that an application would be made for an execution against him under this statute. He filed an application to remove the case as made by this motion to this court, alleging everything that was necessary to entitle him to a removal, so far as citizenship and so far as value are concerned.

But the question is whether a motion of this kind may be removed. Of course, that question depends on a true construction of the acts of Congress in that regard. From the earliest legislation on this subject down to the present time, the nature of the cases that may be removed have been described substantially in the same language. In the 12th section of the original Judiciary Act, in the act of 1866, in the act of 1867 known as the Local Prejudice Act, and in the broad and comprehensive act of 1875; also, in the Revised Statutes where the earliest enactments are embodied, the language is as to value: "Any suit wherein the amount in dispute exceeds the sum or value of $500;" and in the act of 1875, sec. 2, descriptive of the cases which may be removed, it is stated that,

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any suit of a civil nature at law or in equity in which the amount in dispute exceeds the sum of $500," may under certain prescribed conditions be removed.

The suit must be one of a civil nature at law or in equity. This is a proceeding against Mr. Humphreys to compel him under this statute of Missouri to pay for his stock. If it is a civil" suit at law or in equity," he is entitled to have it removed; if not he is not thus entitled.

In

In the case of West v. Aurora, 6 Wall. 139. Chief Justice Chase said: "A suit removable from a State court must be a suit regularly commenced by a citizen of the State in which the suit is brought, by process served upon the defendant who is a citizen of another State; and who if he does not elect to remove is bound to submit to the jurisdiction of the State court." This undoubtedly expresses the general rule. There are several other cases reported which have some bearing on the present case, and the substance of them in this regard is substantially this: that it is the main suit or controversy between the parties that is removable, and not a mere sequence or dependency of a suit. the decisions of the Supreme Court of the United States there is a case, to this effect namely: Where in an ordinary proceeding in a State court one party sues another, and, by attachment or otherwise, seizes property, and a third person claims it as his property (he may claim it sometimes by intervention and sometimes by summary modes provided for a trial of the rights of property), it was decided that the party intervening in this way in the main case and setting up a right of property could not remove such an ancillary or dependent matter, for such a proceeding was not a suit which could be removed under the acts of Congress. That is the nearest approach to the de cision of this question, which I recall as having been made by the Supreme Court of the United States. On the circuit there is reported a decision -Chapman v. Barger, 4 Dill. 557, arising under the statutes of Iowa, as to the rights of an “occupying claimant." It has the approval of all the judges of that circuit court, including Mr. Justice Miller. That case in substance was this: The Iowa statute provides that where, in an action of ejectment, the plaintiff recovers a judgment for the property against the person holding the property in good faith and under color of title, and the unsuccessful defendant has made improvements, no execution shall issue to put him in possession if the defendant in a given time files a petition in the case asking to be allowed the value of his improvements. Such a judgment was rendered in a State court against a party, and in due time he filed a petition,--the unsuccessful defendant in the ejectment suit—for an allowance of his improvements, and the plaintiff in the ejectment thereupon applied to remove the case to the Federal court, and the question was whether the contest between him and the defendant in respect to the value of the improvements was cognizable on that removal by the Federal court. We held that the petition of the occupying claimant could not be removed. In that case the court say: "We hold that the peti

tion of the occupying claimant cannot be removed, as under the Iowa statute and decisions of the Supreme Court of the State it is essentially part of, and ancillary to, the main suit. The main suit is at an end and a judgment has been rendered thereon in the State court. That judgment must remain in the State court. It cannot be brought here. The petition of the occupying claimant,whose rights are wholly statutory-is a dependency of the main suit and cannot be separately removed. Under the legislation of Iowa in respect of occupying claimants, as construed by the State Supreme Court, and in view of the relief to which each party is entitled, it is apparent that the rights of the parties must be adjudicated in one and the same court." An apparent exception to this principle is presented in the case of Patterson v. Boom Co., 3 Dill. 465. It was decided in that case that a suit in the State court between a land owner and incorporated company under a right of eminent domain where the question to be tried was the value of the land, was a suit of such a nature as could be removed to the Federal court, although the proceeding in its inception was an appraisement by commissioners appointed under the charter of the company. The legislation in Minnesota, under which that case arose, is peculiar. It provides that when a condemnation is had, if the owner is dissatisfied he may take an appeal from the sheriff's jury, or whatever the local inquisition is, to the court of the State; and provides further as to how it shall be conducted: that one party shall be the plaintiff and the other the defendant, and that the only question to be tried shall be the damages. It was decided that, under those circumstances the case was removable, and within the past few weeks the Supreme Court of the United States has affirmed that decision.

The Supreme Court of New Hampshire, 55 N. H. 351, has decided a point somewhat analogous; to the effect that a garnishee or trustee holding credits, etc., joined as defendant for that purpose, is not within the removal acts, and cannot transfer the case as to himself, but only as between the principal parties in the suit.

The statute of Missouri on the subject of corporations in providing a remedy for creditors, makes a provision in this 13th section, that if the corporation becomes insolvent and a judgment is recovered against it in the courts of the State, and an execution is returned nulla bona, any creditor of that corporation may have execution against any stockholder in the corporation, to make out of that stockholder the balance which he may owe on his stock. That is one of the remedies which the statute of Missouri provides in respect to the liabilities of the stockholders and the rights of creditors of corporations.

In this case the creditor obtained his judgment against the corporation in the State court, and that court issued an execution thereon. This is simply a proceeding to enforce these provisions of the statutes of Missouri in regard to the liabilities of stockholders. This is to our mind not anjindependent suit. It is a mere sequence, dependency or

supplemental proceeding based on the State statutes as a means of enforcing the judgment of the State court. It is our opinion, therefore, that this proceeding cannot be removed into this court. As well might it be attempted to remove proceedings under an execution upon a judgment in the State court. The State court refused to enter an order for removal, and the stockholder filed a transcript of the case so far as to bring before us this question.

The proper entry to make is simply to dismiss the case.

1. THE CONDITIONS OF AN AUCTION SALE required $180 to be paid at the time of sale by a purchaser. S, a minor, bid off the property, paid $40 of the required $180, made a default in paying the balance, and repu diated the contract of purchase. The property was again advertised and sold. Whereupon S, still a minor, brought assumpsit for the $40 paid by him. Held, that he was entitled to recover. Held, further, that the defendant was not entitled to deduct from the $40 sued for, the expenses imposed on him by the plaintiff's act.

2. MONEY VOLUNTARILY PAID by a minor under a contract from which he has derived no benefit may be recovered back.

3. WHEN A MINOR SUES for the value of work done under a contract which he has repudiated, he may recover on quantum meruit the value of his services less the estimated injury to the defendant arising from the broken contract, semble.

Exceptions to the Court of Common Pleas.

Assumpsit by plaintiff, a minor, sued by his next friend in the Justice Court of the City of Providence against the defendant to recover" the sum of forty dollars paid by the plaintiff, a minor, to the defendant and wrongfully withheld by the defendant." It was carried to the court of common pleas by the defendant's appeal and brought to this court by the defendant's exceptions. It appears from the record that Millard sold certain realty at auction under the powers of a mortgage deed made to him, the conditions of the auction sale requiring ten per cent. of the purchase money to be paid at the sale. Shurtleff, at the auction sale, purchased the property for $1,800, paid $40 at once and promised to pay the remaining $140 of the ten per cent. required before nightfall. Shurtleff neglected to pay this sum and refused to complete the purchase contract, alleging that he misunderstood the price. Millard then advertised and sold the property again. Shurtleff was a minor during all these proceedings and when his action was brought. The presiding judge in the court of common pleas directed a verdict for the plaintiff and the defendant excepted

POTTER, J., delivered the opinion of the court: The plaintiff, a minor, sues to recover back the sum of forty dollars which he paid the defendant as the percentage required to be paid down for property struck off to him at an auction sale. The defendant contends, first, that it having been a voluntary payment the plaintiff cannot recover it back; second, that if he is entitled to recover it back the defendant should be allowed to deduct for the expense and trouble which he has been put to by the plaintiff's rescinding the contract. Parsons, Contracts, vol. 1, cap. 17, sect. 5, *322, 6th edition, 1873, lays down the law on the first point broadly as claimed by the defendant. "If an infant advances money on a voidable contract which he afterwards rescinds, he cannot recover this money back because it is lost to him by his own act, and the privilege of infancy does not extend so far as to restore this money unless it was obtained from him by fraud." He cites no authority. The doctrine so broadly laid down has been overruled by later authorities and this passage has been condemned in Robinson v. Weeks, 56 Me. 102, 104; still the last edition of that text-book takes no notice of the fact.

In one of the earliest cases, Earl of Buckinghamshire v. Drury, 2 Eden, 60, 72, Lord Mansfield did use language similar to this; but the case was on the point whether a feme covert could be barred of her dower by jointure settled on her while under age. Lords Hardwicke and Mansfield and Sir John Wilmot concurred in the decision of that case, but it has been disapproved since. See in relation to that case, Wilmot's Notes of Opinions, 177, 226; Milner v. Lord Harewood, 18 Ves. Jr. 259, 271.

In Zouch e dimiss., Abbot v. Parsons, A. D. 1765, 3 Burr. 1794, compare 1 Evans Decisions, 111, Lord Mansfield laid down many of the general rules drawn from the decisions, which have since substantially prevailed, and also, it is believed, first used the expression that the privileges of infancy were given as a shield and not as a sword, which has become a maxim in this branch of the law.

Macpherson, in his work on Infancy, page 484, also cited in Medbury v. Watrous, 7 Hill N. Y. 110, 114, lays down as law that if a minor contracts for an estate and pays a deposit he cannot, in the absence of fraud, recover it back. But he cites no case. But on page 489, the case of Wilson v. Kearse, Peake's Add. Cas. 196, at Nisi Prius, is cited where Lord Kenyon is reported to have once used language similar to that we have quoted from Parsons, that if a minor pays money voluntarily he cannot, if there is no fraud, recover it back. But there is no full nor reliable report of this case. The case of Holmes v. Blogg, 8 Taunt. 508, also in 2 J. B. Moore, 552, was this: The infant had paid a premium for a lease and had occupied the leased premises until he came of age, when he quit the premises and sued to recover the money back. The court held that having paid money on a valuable consideration and having partially enjoyed that consideration he could not recover it back. Chief Justice Gibbs does indeed say that "having paid the money with his own hand he "cannot recover it back again.”

In Corpe v. Overton, 10 Bing. 252, the court holding that the plaintiff might recover back money paid, expressly say that they do not impeach the decision in Holmes v. Blogg. In Corpe v. Overton, Corpe agreed to form a partnership and paid down £150 to be forfeited if he failed ou coming of age to execute a proper partnership agreement. He rescinded the contract and sued for the money back, having received no advantage whatever from the agreement. In deciding this case, Bosanquet, J., said that the court used strong expressions in Holmes v. Blogg, but we must look not to the expressions alone but to the facts to which they were applied. And see also as to the language used by Gibbs, C. J., in Holmes v. Blogg, Riley v. Mallory, 33 Conn. 201, 207, and Robinson v. Weeks, 56 Me. 102, as to the true ground of decision in that case.

The case of M'Coy v. Huffman, 8 Cow. 84, A. D. 1827, was a case where an infant bad agreed to purchase land and had paid in money and work toward it and sued to recover for that. The court decided on the authority of Holmes v. Blogg, that he could not recover. In Medbury v. Watrous, 7 Hill, N. Y. 110, A. D. 1845, the plaintiff, a minor, agreed to buy a house and land of the defendant and had in part payment done work while a minor for the defendant to the value of $70.20. He never had possession of nor received anything from the house, but on coming of age sued to recover the value of his work. The case of M'Coy v. Huffman was relied on for the defendant, but the court overruled it. And they distinguish it from the case of Holmes v. Blogg, and approve of Corpe v. Overton, and hold that the plaintiff should recover. The case is very ably stated. It was decided when the Supreme Court of New York was the Supreme Court of the whole State and was composed of Nelson, Beardsley and Bronson. Robinson Weeks, 56 Me. 102, was a suit to recover back money paid by plaintiff while a minor for a share of stock in a land and petroleum company. The share had never been transferred to him. He renounced the contract within a fortnight after coming of age. He did not return the receipts for the money, but offered to assign over to the defendant all his interest in the company. The case was tried before the full court. The court held that the plaintiff could not recover without returning the consideration if it was in existence or under his control, but that the receipts were of no value except as evidences of payment. The protection which the law supposes the infant to need is just as much required against the improvidence which has paid out as against that which only promises to pay, and where it can be given without converting the shield into a sword, it should be given." Judgment for the plaintiff.

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The weight of authority and we think of reason is, that it is no defense that the minor volun. tarily paid the money, and that when he has received no benefit from the contract he has a right to recover it back. Excellent remarks on the classification of minors' contracts are contained in Reeve's Domestic Relations, quoted and approved in Riley v. Mallory, 33 Conn. 201; also in