respect to their right to sue in the federal courts, on the same foot· ing. It follows that a national bank cannot, in virtue of any corporate right, sue in a federal court. But, like other banks, and citiizens, it may thus sue whenever the subject-matter of litigation involves some element of federal jurisdiction of which a federal court may, under the law, take judicial cognizance. Such an element, I think, exists in this case. The state could not tax complainant at all without congressional permission. This permission is given by section 5219 of the Revised Statutes. But the authority to tax is coupled with the limitation that the taxation of national banks shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state. The complainant alleges a violation of this ack The allegation necessarily involves the validity and construction thereof, and therefore presents a case arising under a law of congress. If so, this court has jurisdiction Qf the suit under and in virtue of the act of March 8,1875. Defendant's demurrer is overruled, and he will be allowed 20 days in which to answer.
(JaUNTY COURT OF KNOX (JOUNTY.-
(Oircuit Oourt, E. D. Missouri. March 23, 1883.)
1. MUNICIPAL BONDs-RECITALS THEREIN-MANDAMUS.
Suit was brought upon certain county bonds which recited upon their face that they had been issued under the provisions of the charter of a railroad company. The petition stated that they had been issued under the provisions of the General8tatutes of the state. The bonds were duly filed in the case, and judgment was obtained by default. Mandamus proceedings were thereupon instituted to enforce the judgment, ll:nd an alternative writ was commanding the county court to levy a special tax 8ufficient to pay it. Under the laws of the state it was the duty of the county court to levy such a tax, where the bonds were issued as alleged in the petition, but they could only levy a tax of one-twentieth of 1 per cent. per annum, where they were issued as recited in said bonds. The return to the writ stated that the bonds had been issued under the eharter of the railroad company, and that the lawful taxes had been levied. Upon motion to quash the return, held, that the bonds were a part of the record for the purpose of determining the measure of taxation to be enforced, and that the presumption was that the recitals therein were true, in the absence of evidence that such recitals were the result of mistake or inadvertence. 2.
SAME-POWER OF FEDERAL COURTS OVER STATE OFFICERS.
In such proceedings federal courts can only require state officers to entoree state Jaws.
'Reported by B. F. Rex, Esq., of the St. Louis bar. Reversed. See 7 Sup. ct. Rep. 117l.
UNI'l'ED STATES V. OOUNTY OOURT OF KNOX OOUNTY.
Motion to Quash Return to Alternative Writ of Mandamus. The relator obtained judgment by default against Knox county upon certain bonds issued by the county to aid inthe construction of the Missouri & Mississippi Railroad. It was averred in the petition in this they were issued under certain provisions of suit upon said bonds, the General Statutes of Missouri, in pursuance of a vote of the pea. pIe. On the face of the bonds themselves it is recited that they were' issued under and in pursuance.of the provisions of the charter of the Missouri & Mississippi Railroad Company. For the payment of a judgment rendered upon bonds issued under the former law, it is the duty of the county court to levy a sufficient tax; but for the payment of bonds issued under the latter, only one-twentieth of 1 per cent. per annum is authorized. The alternative writ directs' the levy of a special tax sufficient to pay the judgment, and proceeds upon the theory that the record in the suit upon the bonds conclusively shows that they were issued under the General Statutes. The return avers that they were issued under the charter of the company, and states that the taxes authorized thereby have been levied. The question is as to the sufficiency of this return. T. R. Skinker, for relator. . James Oarr and George D. Reynolds, for respondent. MOCRARY, J. The decision of this motion depends upon the question of the effect of the adjudication in the original suit. In the petition it was averred that the bonds were issued under the general · law and in pursuance of a vote of the people. Upon ,the face of the bonds sued on it is declared that they were issued under and in pursuance of the provisions of the charter of the Missouri & Mississippi Railroad Company. The judgment was by default. Are we to take the allegations of the petition as to the authority under which the bonds were issued as established beyond dispute for the purposes of this proceeding, or can we look to the contracts sued upon? It is well settled that the judgment in the original suit settles all questions as to the validity of the bonds, and conclusively determines that they were binding obligations of the county duly created by authority of law, and as such entitled to payment out of any fund that can lawfully be raised for that purpose. We are also satisfied that where the plaintiff's petition in the suit and the bonds sued on agree in stating that they were issued uuder a given statute, and this is not denied by any pleading in that suit, or if denied is found for the plaintiff, it will be too b,te in a proceeding brought to v.15,no.l0-!5
the judgment. to raIse the qUe'stion·. But here there was a variance between the allegations of the petition and the retlitals in the bonds sued on. The plaintiff was bound by both, unless he was prepared to aver and prove that the recitals in the bonds were written there1;ly mistake, and,·that the power to issue them was in fact derived, not from the act named, but from some other. OrdinarilY, a judgme1lt by default is conclusive of the tr1;lth of all the material'·a,llegations of the petition, the establishment of which was necessary to entitle the plaintiff to the judgment rendered j' but it often· happens that for the purpose of determining wh!!-t propertyis liable to be taken for tl;J.e satisfaction of a judgment, it is necessary to look behind the ment and into the contract ,upon which it was rendered. 'Q uGstions of exemption are Q£ten determined by to thenat· U;l1e of the contract, or its ;As, for example,_ where it is sought to enforce a judgment claiD;led as a homestelj.d, it may -often be necessary.to; gl)'baok to the contract jl,nd, asoertain whether it was exeouted before-the debtor jl,cquired the homestead, or whether it was a debt for whjqh the, homestead was liable, or whether the homestead right has been released. And so,in a case like the present, we must, in order to determine what remedies to apply, and what measure of taxation ,tp .enforce, look into the contract upon The oounty, when'sued upou its which the judgment was bouds, has a right to assume that any judgment rendered will be . forc,ed according to the, law which entered into and is a part of the proceedings are instituted for the contract. And when respondents may properly raise enforcem,ent of such a j udgmen,t, the question as to what taxes are'authorized to be levied and collected for its payment. And for thepu;rpose of determining this question the court must go back to' the contract expressed in the bonds upor. which the judgment was rendered. In Ralls Co. v. U. S. 105 U. S. 733, the supreme court say:
"While the coupons are merged in the judgment, they carried with them into the jndgment all the remedies which in law formed a part of their contract obligations, and these remedies may still be enforced in all approprhtte ways, notwithstanding the change in the form of the debt."
If the remedies given by the original contract are to be enforced after the judgment, it follows, of course, tha.t in order to know those remedies are, and to enforce them, we must know what the contract was. And what is the best evidence of the terms of the 'contract? Manifestly the contract itself, if we are permitted to look at it. But it is contended that the bonds sued on in the original
SPARE V. HOME -MUT. INS. CO.
suit, though filed with the clerk in accordance with the statute lating the praetice,in suell cases, and pursuant to a rule of this court, are ,no part of the record and cannot there be considered. Whatever the general rule upon this subject may be, we are of the opinion that in a case such as. present, and for the purpose of aSl:lertaining .what remedy to apply or enforce, we are at 'liberty to look into the terms of the contract upon which the relator's judgI!;lent was rendered, and if there is a betwee!lthe (,lontract and the allegations of the petition, W61 will presume in favor of the contract untilit is shoW,.n that the recitals therein were the result of mistake or inadvertence. It is only to hold that the instrument sued on and filed with the clerk in accordance with the statute and the rule of the of the record, for the purpose of determining, in a court are. a else such as the present, what measure of taxation to enforce against the municipal corporation for the satisfaction of the judgment. rrhis ieall that is now decided. Were we to hold otherwise, we might 'be called upon to command the officers of the county to levy taxes not authorized by law, for the fulfillment of their contracts; or, in other words, to violate their duty and exceed their powers. And it is now well settled that a federal court can only require of such officials obedience to the law, and cannot make a. law for them. Motion to quash overruled.
HOME MUT. INS.
(Uircuit Uourt, D. Oregon. March 28, 188;,., 1.
FIRE INSURANCE-CONTRACT FOR.
A contract for insurance against loss by fire is a contract of indemnity: and, a contract to that end with a person who has no insurable interest in the property, or cannot sustain any pecuniary loss by injury thereto, is a mere wager, contrary to public policy and void.
2. SAME-INSURABLE INTEREST. Any person who has a legal or equitable interest in property, or is so relatea to it that an injury to it may cause him pecuniar,)' loss, has an insurable interest therein. 8. SAME-JUDGMENT CREDITOR, A judgment creditor has an insurable interest in the property of his debtor; but he cannot reC(lver from the insurer upon an injury thereto as for a loss to himself, unless he also shows that the judgment debtor has not sufficient propertj' left out of which the juElgment can be satisfied.