made in total disregard of the twenty-first rule of this court. That rule is necessary to the disposition of the business which pressed upon us, and it is our intention hereafter to enforce strict compliance with its demands. If errors are not assigned in the manner required, the assignments will be treated as if not made at all, and we feel justified in passing without notice the greater number of those which are al biguous nor technical, no usage can be proved to discover its meaning. 2. Defendants in the circuit courts of the Unit ed States can avail themselves of the laws which prevail in the state concerning the right of set-off. [No. 179.] Submitted Mar. 19, 1873. Decided Apr. 7, 1873. leged to appear in this record. There are, how-IN ERROR to the Circuit Court of the Unit ed States for the District of Missouri. It is a well settled rule, that intrinsic evidence is admissible in all cases, to enable the court to apply the terms used to the thing or business spoken of, in the sense in which such words were used and understood by the parties at the time of their use. 2 Phil. Ev. 4th Am. ed. 1718, n. 3, p. 510. The court could not know what the contract was without an explanation of these ambiguous terms; and yet the court held that to explain would vary the contract. "The law is not so unreasonable as to deny to the reader of any instrument the same right which the writer enjoys." Wigram, Extr. Ev. 57, 58. The action was trespass "be bonis asportatis," and the plaintiffs in the court below averred "property" in the goods in themselves. The declaration was met by a plea of the general issue, and by a special plea alleging that the property in the goods was in O. S. Buell & Co., and that the alleged trespass consisted in a sheriff's seizure under an attachment issued out of the district court of Gilpin county at the suit of Deitsch & Brothers. The special plea was in some respects informal, but instead of demurring, the plaintiff's traversed its averments, and the parties went to trial on the issues thus formed. It was then a material inquiry whether the ownership of the goods was in the plaintiffs when the seizure was made, or whethIn Boorman v. Johnson, 12 Wend. 574, Saver it was in O. S. Buell & Co., and to that in-age, Ch. J., said: "Parol evidence may be given quiry the evidence offered by the defendants, that they had belonged to Buell & Co.; that during the absence of the firm from the territory, their clerk, without authority, and in fraudulent combination with the plaintiffs' agent, had made a sale of them to the plaintiffs, was undoubtedly pertinent. If there was 547] no authority to sell, plainly the plaintiffs had acquired no title; and if the sale was a fraud upon the creditors of Buell & Co., the goods were liable to an attachment at the suit of those creditors. It was an error, therefore, to exclude the evidence. to apply the written contract to the subjectmatter; in some instances to explain expressions used in a peculiar sense, when used by particular persons and applied to particular subjects. It is perfectly right and consistent with fair dealing, to give effect to language used in a contract, as it is understood by those who make use of it." Goodyear v. Ogden, 4 Hill, 104; see also 2 Stark, Ev. 258, 9; Withmell v. Gartham, 6 T. R. 388; Rushforth v. Hadfield, 6 East, 519; Cooper v. Kane, 18 Wend. 386; The Reeside, 2 Sumn. 567; Story, Cont. § 648; Eaton v. Smith, 20 Pick. 150; Neilson v. Harford, 8 Mees. & W. 806, 6 Mees. & W. 108; Pierce v. State, 13 N. The attachment should also have been received in connection with the proof of the unauthorized and fraudulent sale. It is no suf-H. 536, 562; Mfg. Co. v. Condit, 1 Zab. 659; Wason v. Rowe, 16 Vt. 525. Snowden v. Warder, 3 Rawle, 181, it is held that a local usage is good, although it contravenes a settled maxim of the law. And in Clark v. Baker, 11 Met. 189, and in case of Stagg v. Ins. Co. 10 Wall. 589, 19 L. ed. This case is clearly distinguishable from the 1038. There was a contract, fixing both rate of payment and duration of interest. Stagg was to have certain fees, "So long as you act as working up a business for yourself, and are agent;" here defendant says: "You are there paid the highest rates we pay." Mr. N. P. Chipman, for defendant in error: The plaintiff did not offer nor attempt to prove the rate of commissions paid on review of premium by the defendant to its agents, after they ceased to act as such; and thus left his case entirely barren of any evidence by which the court or jury could determine what, if any, compensation he should receive or was entitled to recover; consequently the plaintiff, having Usage when inadmissible to vary writing-set-admitted that he had received his commission off in U. S. Courts, law of. 1. Where the language of a letter is neither am on all premiums that had been collected by him up to the time of his discharge, and $1,772 in NOTE-Evidence of usage, when admissible addition, the court properly excluded any evidence as to the commuted value of the commis see note 10 L. R. A. 786. sions on future premiums on policies obtained | percentage of premium, which was to be paid by him during his agency. The plaintiff, by under this letter. The plaintiff stated that he his arrangement with defendant, was put in had retained a certain percentage, which was the position and given the rights of its most that allowed by the company. The testimony favored agents, and his rights could be ascer- was not offered to show what was the [*579 tained by reference to the compensation paid by highest commission paid by the company. the company to such agents, and not by giving vague and extraordinary meaning to plain and intelligible words, and by any usage of other companies or their agents at St. Louis. As to the correctness of the court, above referred to, we cite the opinion of Dillon, J., in this case; 1 Dill. 140; also, Stagg v. Ins. Co. supra; Barnard v. Kellogg, 10 Wall. 383, 19 L. ed. 987; The Reeside, 10 Wall, 2 Sumn. 567; Eaton v. Smith, 20 Pick. 150; Garrison v. Ins. Co. 19 How. 312, 15 L. ed. 656; Charlton v. Gibson, 1 Carr. & K. 541. The plaintiff in error complains because the judgment was rendered in favor of the defendant on its counterclaim. It appears to us, as it did to the circuit court, that the testimony offered would have estab lished a new and distinct term to the contract. It would have established a contract very different from the written one introduced by plaintiff. The language of the letter was neither ambiguous nor technical. It required and needed no expert, no usage to discover its meaning. To have admitted the usage offered in evidence in this case would have been to make a contract for the parties differing materially from the written one under which they had both acted for some time. The tendency to establish local and limited usages and customs in the contracts of parties, The act of Congress of 1856, and that of who had no reference to them when the trans1867, which is amendatory thereof, contem-actions took place, has gone quite as far as plates that after a suit, removed from a state court, has been entered in the United States Court it shall proceed in the same manner as if it had been brought there by original process, and the pleadings have "the same force and effect, in every respect and for every purpose, as the original pleadings would have had by the laws and practice of such state, if the cause had remained in the state court." Mr. Justice Miller delivered the opinion of the court: sound policy can justify. It places in the hands of corporations, such as banks, insurance companies and others, by compelling individuals to comply with rules established for the interests alone of the former, a power of establish. ing those rules as usage or custom with the force of law. When this is confined to establishing an implied contract, and the knowledge of the usage is brought home to the other party, the evil is not so great. But when it is sought to extend the doctrine beyond this, and incorwhose terms are reduced to writing and are porate the custom into an express contract re-expressed in language neither technical nor ambiguous, and therefore needing no such aid in its construction, it amounts to establishing the principle that a custom may add to or vary or contradict the well expressed intention of the parties made in writing. No such extension of the doctrine is consistent either with authority or with the principles which govern the law of The plaintiff in error was plaintiff in the circuit court, and his action was brought to agent in its business of life insurance. The plaintiff, having been discharged from the employment of defendant, asserted a right to a commission on the renewal or annual premiums thereafter paid or to be paid, on account of policies issued through his agency. cover for services rendered the defendant as To establish this, he undertook and offered to prove by competent witnesses, that this was the usage between insurance companies generally and their agents in St. Louis, where the business of this agency was conducted. The question did not arise whether the custom which the plaintiff offered to prove could have been proved as the measure of his compensation, in the absence of any express contract, because he had introduced in evidence a letter from the defendant in reference to this compensation, under which he said he had acted in taking the policies for which he now claimed the additional commission. This letter was written in reply to one asking information as to the precise relation which he bore to the company, and among other things it stated that "Concerning your status in Missouri it is simply this: you are working up a business for yourself, and are paid the highest commissions which we pay"; and it was for the purpose of explaining the meaning of this phrase or of fixing to it a meaning which it did not bear on its face, that the testimony was offered in two or three different shapes. The court rejected the testimony, on the ground that the language was clear and needed no explanation to which usage could apply. There was no question as to the amount or contracts. A question is raised in this court, not raised in the circuit court, as to the right of the defendant to recover, by way of set-off or crossaction against the plaintiff, a sum of money in his hands as agent of the plaintiff, which was admitted to be due, if plaintiff's claim was not established. The amount was admitted by plaintiff, and no objection was made [*580 to pleading it as a set-off. Therefore, none can be made here. But if the point were open to inquiry, it is settled by the case of West v. Aurora City, 6 Wall. 139; 18 L. ed. 819, that de fendants in the circuit courts of the United States can avail themselves of the laws which prevail in the state concerning the right of setdoctrine to allow a citizen of a distant state to off generally. It would be a most pernicious institute in these courts a suit against a citi zen of the state where the court is held and escape the liability which the laws of the state have attached to all plaintiffs of allowing just and legal set-offs and counterclaims to be interposed and tried in the same suit and in the same form. The judgment of the Circuit Court is affirmed. FREDERICK W. HANNEWINKLE, Appt., v. THE MAYOR, BOARD OF ALDERMEN AND BOARD OF COMMON COUNCIL OF GEORGETOWN, and George W. Beall, Col lector. (See S. C. 15 Wall. 547-549.) Injunction bill in tax cases, when proper equity jurisdiction--void proceedings. 1. An injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. 2. There must be an allegation of fraud; or that it creates a cloud upon the title; or that there is apprehension of multiplicity of suits; or some cause presenting a case of equity jurisdiction. 3. There exists no cloud upon the title which justifies the interference of a court of equity, where the proceedings are void upon their face. [No. 201.] Argued Apr. 4, 1873. Decided Apr. 14, 1873. trict of Columbia. APPEAL from the Supreme Court of the DisThe history and facts of the case are fully stated by the court. Mr. Sam'l Tyler for appellant. Mr. Wm. A. Cook, for appellees: There is no allegation in the bill, of fraud, of a cloud upon his title, which equity alone has power to remove, of danger of a multiplicity of suits, or of irreparable injury to his freehold. It is indisputable law, that a party who brings an equitable action must maintain it upon some equitable ground; and if the cause of the action is of a legal, and not of an equitable, nature, he must bring a legal action or pursue a legal remedy. The case of Mooers v. Smedley, 6 Johns. Ch. 28, directly affirms this doctrine, as applied to the case now under consideration. The bill there was filed to enjoin the collector of a town from collecting a tax, and the supervisor from paying over the money, on the ground that the board of supervisors had levied the same in direct violation of the law. But Chancellor Kent refused to interfere, and in the course of his opinion observed: "I cannot find, by any statute, or precedent, or practice, that it belongs to the jurisdiction of chancery, as a court of equity, to review or control the determination of the supervisors; and the review and correction of all errors, mistakes and abuses in the exercise of the powers of subordinate public jurisdiction, and in the official acts of public officers, belong to the Supreme Court. . is always open to every party conceiving himself aggrieved. That writ brings up the proceedings of the inferior body for review, and judg ment passes directly upon their proceedings and determinations thus reviewed. Judge Nelson says in The Mayor of Brooklyn v. Meserole, 26 Wend. 139: "The questions whether these subordinate tribunals have acted in pursuance of the powers conferred upon them by law, and whether their acts are void or invalid, involve an examination of purely legal principles, unmixed with equity. Their acts are tried by the stern letter and spirit of the charter or statute under which they proceed; and if found to have transcended it, they are regarded in the light of naked trespassers devested of authority, and as such, responsible in the appropriate tribunal." And in Heywood v. Buffalo, 14 N. Y. 542, it is said: "The doctrine established by the decisions is substantially this: that if the proceedings are void upon their face, they form no cloud upon title, and no ground of interference by a court of equity. And if they are not void upon their face, but merely voidable or irregular, a court of equity will not take cognizance of them, unless other facts are alleged, sufficient to bring the matter clearly within some acknowledged head of equity jurisdiction. This is a sound and salutary rule, which should be steadily adhered to upon considerations of public interest and convenience, if no other. It is not the business of courts to furnish new remedies to parties aggrieved, even though existing ones are found inadequate to afford perfect protection or redress. That falls more properly within the province of the legislature. But if they had the power, they would hesitate before extending their equitable jurisdiction over all the acts of these inferior bodies, and allowing every one assessed to come in and litigate as to the validity of the tax, before he should be required to pay it, who could allege some error in making the assessment. In the present case, if the proceedings of the town council and of the jury are void, a simple action of trespass will afford full redress, both in respect of the unauthorized invasion of appellant's lands by the officers and agents of lect the assessment. the corporation, or in case of an attempt to col If they are not void the court has no power to interfere. Van Doren v. Mayor of New York, 9 Paige, 388; Livingston v. Hollenbeck, 4 Barb. 10; Mooers v. Smedley, 6 Johns. Ch. 28; Thatcher v, Dusenbury, 9 How. Pr. 32; Bouston v. Brooklyn, 15 Barb. 375; Kelsey v. King, 32 Barb. 413. This court has determined that an injunction will not ordinarily lie, to prevent the collection of taxes; and also, that errors or irregularities in taxes and assessments must be corrected by certiorari. "It has always been a matter of legal, and never a matter of equitable cognizance, and in the whole history of English Court of Chancery, there is no instance of the assertion of such a jurisdiction as is now contended for." The courts have thus far steadily refused to lend their equitable powers for such purposes. The usual and undoubted remedy, by certiorari, NOTE. When an injunction to restrain the colThese cases, it is presumed, will be conclulection of a tax will be granted-see note to Dows sive of the question of jurisdiction. v. Chicago, 20 L. ed. U. S. 65. Dows V. Chicago, 11 Wall. 108, 20 L. ed. 65; Ewing v. St. Louis, 5 Wall. 413, 18 L. ed. 657. 231 Mr. Justice Hunt delivered the opinion of the court: This is an appeal from the decree of the supreme court of the District of Columbia. The plaintiff filed his bill against the corporation of Georgetown and its collector of taxes, enjoining them from selling certain real estate for a pretended tax, claimed to be due to the corporation. The bill alleges that the corporation attempted to condemn to public use and open and improve Stoddard street, in that city; 548*] that the plaintiff owned *certain premises on that street, describing them; that a part of said premises were condemned to public use and his damages were assessed at $3,139.00; that the same jury which thus assessed his damages did assess him for benefit to the residue of his property arising from the same improvements, in the sum of $3,425.33, and attempted to make the assessment a lien and charge on the said residue, by and for which the same could be sold. This, it is alleged, was without authority of law and contrary to the act of Congress under which the city acted. The bill prays that the defendants may be restrained from selling the property. An answer was put in. The cause was brought to a hearing upon an agreed state of facts, and the bill dismissed, with costs. From such decree of dismissal the defendant now appeals to this court. This action cannot be sustained. It has been the settled law of the country for a great many years, that an injunction bill to restrain the collection of a tax, on the sole ground of the illegality of the tax, cannot be maintained. There must be an allegation of fraud; that it creates a cloud upon the title; that there is apprehension of multiplicity of suits, or some cause presenting a case of equity jurisdiction. This was decided as early as the days of Chancellor Kent, in Mooers v. Smedley, 6 Johns. Ch. 28, and has been so held from that time on ward. The remedy was held to be at law by writ of certiorari or by action of trespass. JOHN RIGGIN, Plff. in Err., v. JOHN MAGWIRE. (See S. C. 15 Wall. 549-552.) Uncertain claims under bankrupt act—not discharged by discharge in bankruptcy. 1. Under the 5th section of the bankrupt act of 1841, a demand is uncertain and contingent, as long as it remains wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there is no means of removing the uncertainty by calculation. 2. Where a covenant is made that the grantor has an indefeasible estate in fee, and the grantor's wife has never relinquished her right to dower, the right of action on that covenant, by reason of such inchoate right of dower, is not, while the husband is living, provable under the bankrupt act, nor discharged by a discharge in bankruptcy. This action was brought in the court below by the defendant in error. The history and facts of the case are sufficiently stated by the court. Messrs. Glover & Shepley and C. Gibson, for plaintiff in error: What are the debts, contracts, and engagements to which, as declared by the 4th section, a discharge is a bar? We maintain that they are every debt, contract and engagement entered into by the bankrupt, except those debts,. contracts and engagements of a fiduciary character, by the terms of the act excluded from its operation. It is difficult to see why the word "engagement" was used, unless it was intended to include all instruments, agreements and liabilities upon which, in any way, a cause of action might arise. There has been no decision of the Supreme Court of the United States on the true construction of the provisions of this act, touching this matter, except in the case of sureties. It has long been held, also, that there exists no cloud upon the title which justifies the inIn the case of suretyship arising on a money terference of a court of equity, where the pro-demand, the Supreme Court of the United ceedings are void upon their face, that is, the States, in the case of Mace v. Wells, 7 How. same record which must be introduced to es- 272, held that the discharge was a complete tablish the title claimed, will show that there bar, without hesitation, and without any intiis no title. Heywood v. Buffalo, 14 N. Y. 534; mation that there was anything peculiar to it, Susquehanna Bank v. Broome Co. 25 N. Y. 312. in the fact that it arose upon a moneyed de549*] The whole subject has been recently suretyship. mand which was not applicable to all cases of examined in this court in Dows v. Chicago, 11 Wall. 109, 20 L. ed. 66. The head note of the case is in these words: "A suit in equity will not lie to restrain the collection of a tax on the sole ground that the tax is illegal. There must exist, in addition, special circumstances bring ing the case under some recognized head of equity jurisdiction, such as that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or where the property is real estate, throw a cloud upon the title of the complainant." The sole ground of the present bill is the illegality of the tax. We are all of the opinion that the bill states no cause of action, and that it was properly dismissed. The judgment must be affirmed. considered by the supreme court of the state of The very question now before the court was New York, in the case of Jemison v. Blowers, 5 Barb. 686, where a discharge was pleaded against a suit brought upon the covenant for quiet enjoyment, and after a careful examination of the act of 1841, the court came to the conclusion that the discharge was a bar to the action. We beg leave to refer the court to the reasoning in this carefully considered case, as well as to that of the court in the case of Shelton v. Pease, 10 Mo. 475. Messrs. M. Blair and F. A. Dick, for defendant in error: If defendant was discharged at all from the plaintiff's claim, it was by force of the 5th section of the act of 1841, providing for the proof against the bankrupt, and his discharge from | proved, because the right to prove was correlauncertain and contingent demands against him. 5 Stat. at L. 444. But the claim at bar is not such a demand. Reed v. Pierce, 36 Me. 460; see, particularly, p. 463 of the above case; Bennett v. Bartlett, 6 Cush. 225. "The liability of a covenantor will not be discharged by his bankruptcy, with respect to such covenants as were not broken at that time." Rawle, Cov. 3d ed. p. 577. "Though, if there is a breach between the date of filing the petition and the discharge, it is released." Rawle, Cov. 3d ed. p. 577, construing Jemison v. Blowers, 5 Barb. 686. At the time of defendant's discharge from bankruptcy, the claim of Magwire, in this case, was not an uncertain or contingent demand, but it was then a contingency whether there ever would be a demand. This distinction between a contingent demand and a contingency whether there will ever be a demand has been applied to the act. of 1841, and become thoroughly established. Reed v. Pierce, 36 Me. 460; Bush v. Cooper, 26 Miss. 612; Woodward v. Herbert, 24 Me. 358; Goodwin v. Stark, 15 N. H. 218; 3 Pars. Cont. 5th ed. p. 505, n. f; Bennett v. Bartlett, supra. In French v. Morse, 2 Gray, 111, the court ɛays: Our opinion is, that in the bankrupt act (1841) "uncertain or contingent demands" should be held to mean, not demands whose existence depends upon a contingency, but existing demands, upon which the cause of action depends upon a contingency. 1 Smith, L. C. 6th ed. pt. 2, pp. 1, 135, et seq. As an example of the distinction before referred to, it is held that though the liability of a surety for a debt is necessarily contingent until default is made by the principal debtor, yet his claim for indemnity will be defeated by the bankruptcy of the principal debtor before the debt falls due, because the surety has the right of substitution, and may even prove the debt in right of the creditor. Mace v. Wells, 7 How. 272; 1 Smith, L. C. 6th ed. 1138. On the other hand, a surety on the penal or official bond of one is entitled to indemnity, and the discharge of the principal in bankruptcy is no bar for after breaches, because the pecuniary obligation imposed by these instruments depends upon a contingency which cannot be estimated. Woodard v. Herbert, 24 Me. 358; Goodwin v. Stark, 15 N. H. 218; Dyer v. Cleaveland, 18 Vt. 241; Ellis v. Ham, 28 Me. 385; Goss v. Gibson, 8 Humph. 197; Loring v. Kendall, 1 Gray, 305; Dole v. Warren, 32 Me. 94; French V. Morse, 2 Gray, 111-113. Thus also, the case of Shelton v. Pease, 10 Mo. 475, which was relied upon by Riggin as decisive of this case, was considered by our own court a case of contingent demand under the act, and so distinguishable from the case at bar. See, 44 Mo. 512. As this unbroken covenant of indefeasible seisin could not have been proved against the estate of Riggin in bankruptcy, his defense is no discharge to this claim. It could not be tive with the right to a dividend, and there was no rule of damages for such a claim within the scope of calculation or conjecture. See, Magwire v. Riggin, 47 Mo. 532. Mr. Justice Bradley delivered the opinion of the court: This was an action brought in the circuit court of St. Louis county, Missouri to recover damages for a breach of covenant. *The [*550 defendant pleaded a discharge under the bankrupt act of 1841, obtained in June, 1843; but his plea was disallowed, both by the lower court and by the supreme court of Missouri, on appeal. He has, therefore, brought the case here by writ of error. The case was this: On the 2d of December, 1839, Riggin, the plaintiff in error, who was defendant below, conveyed a certain tract of land near St. Louis, to one Ellis, in fee. The operative words of the conveyance were "grant, bargain, sell," etc., which words in Missouri create a covenant that the grantor has an indefeasible estate in fee. R. S. 1855, ch. 32, § 14; 44 Mo. 512. The fact was that, prior to the execution of this deed, the property had belonged to one Martin Thomas, whose wife had never relinquished her right of dower in it. But Thomas was then living, and did not die until 1848, several years after the discharge of Riggin as a bankrupt. The property afterwards, by devolution of title, came into possession of the plaintiff below (the now defendant in error), who sold it in lots to various persons. In 1868, these persons were sued by Mrs. Thomas, widow of Martin Thomas, for the value of her dower, and were obliged to pay it, and the plaintiff was obliged to refund them the amount. He therefore brought this suit against Riggin for damages, under his implied covenant of indefeasible seisin. The question is, whether Riggin was discharged from this demand by his decree of discharge in bankruptcy, in 1843; and whether he was or not, depends on the question whether the claim could have been proved in that proceeding. The 5th section of the bankrupt act of 1841, 5 Stat. at L. 445, declared as follows: "All creditors whose debts are not due and payable until a future day, all annuitants, holders of bottomry and respondentia bonds, holders of policies of insurance, sureties, indorsers, bail, or other persons, having uncertain or contingent demands against such bankrupt, shall be permitted to come in and prove such *debts and claims under the act, and [*551 shall have a right, when these debts or claims become absolute, to have the same allowed them; and such annuitants and holders of debts payable in future may have the present value thereof ascertained under the direction of such court, and allow them accordingly, as debts in præsenti." It is claimed that, under the right here given to prove uncertain and contingent demand, this claim could have been proven. But the better opinion is, that as long as it remains wholly uncertain whether a contract or engagement would ever give rise to an actual duty or liability, and there was no means of removing the uncertainty by calculation, such contract |