conveyed by the patent, by the production of the proceedings which culminated in the patent. The patent, while it remains in force, conclusively determines what lands the claimant was entitled to under his claim and the decree of confirmation. The claimant can neither reform the patent, nor show that it is in any respect incorrect, in an action of ejectment."

The merits of this case have been settled by the final decree of this court, and the patents issued in conformity therewith. If the present motion could be sustained, and a new order made in disregard of the final decree of this court, it would open up a new field of inquiry, and create future litigation that would be endless. As was said by Mr. Justice Field in U. S. v. Flint, supra:

"Of course, under such a system of procedure, the settlement of land titles in the state would be postponed indefinitely, and the industries and improvements which require for their growth the assured possession of land would be greatly paralyzed."

The obligations resting upon the government concerning the Mexican and Spanish grants are purely political in their character, and are settled and discharged in such manner and upon such terms as they deem expedient. To quote the opinion of Mr. Justice Field in Beard v. Federy, 3 Wall. 478, 492, 18 L. Ed. 88:

"By the act of March 3, 1851, they have declared the manner and the terms on which they will discharge this obligation. They have there established a special tribunal, before which all claims to land are to be investigated; required evidence to be presented respecting the claims; appointed law officers to appear and contest them on behalf of the government; authorized appeals from the decisions of the tribunal, first to the district, and then to the supreme, court; and designated officers to survey and measure off the land when the validity of the claims is finally determined. When informed, by the action of its tribunals and officers, that a claim asserted is valid and entitled to recognition, the government acts, and issues its patent to the claimant. This instrument is therefore record evidence of the action of the government upon the title of the claimant. By it the government declares that the claim asserted was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is correctly located now, so as to embrace the premises as they are surveyed and described. As against the government, this record, so long as it remains unvacated, is conclusive. And it is equally conclusive against parties claiming under the government by title subsequent. It is in this effect of the patent as a record of the government that its security and protection chiefly lie."

The presumption of the law always is that the officers of the executive department of the government, who are specially charged with the supervision of matters in relation to the issuance of patents, did their duty; and if, under any circumstances, their action can be sustained, it must be presumed that such circumstances existed. I am of opinion that it is the duty of this court, under the facts herein presented, to decline to review the action of the executive department in refusing to issue a patent under the survey of 1895, and to decline to grant the motion of petitioner to compel them so to do. The affirmative facts set forth in the demurrer constitute a complete defense and bar to the relief prayed for by petitioner. The entire matter is res judicata. From the views herein expressed, and conclusions reached, it necessarily follows that the demurrer should be sustained, and the petition dismissed. It is so ordered.

MALCOMSON v. WAPPOO MILLS et al.

Ex parte PEOPLE'S NAT. BANK.

(Circuit Court, D. South Carolina. February 1, 1900.)

1. CORPORATIONS-RIGHTS OF THIRD PARTIES DEALING WITH OFFICERS-DIVERSION OF FUNDS.

A bank which held the individual note of the president of a business corporation received a payment thereon by his direction from a debtor of the corporation. The president was sole manager of the corporation, and the owner of the greater part, if not all, of its stock, and treated its business and property as his own, without objection from any one. Held, that the bank was entitled to retain such payment without prejudice to its right to receive a dividend equally with other creditors, upon a claim it held against the corporation, from a receiver appointed to wind up its affairs in insolvency.

2. SAME-INSOLVENCY-INTEREST ON CLAIMS.

The receiver of an insolvent corporation, who has properly withheld payment of a dividend to a creditor until he could obtain the instructions of the court, is not personally liable for interest thereon; but, if he still has in his hands funds of the corporation, interest may properly be allowed and paid therefrom to place the creditor on an equality with others.

In Equity. On application of receiver for instructions.
James Simons, for receiver.

W. C. Miller, for petitioner.

SIMONTON, Circuit Judge. This case comes up on a report of the receiver asking instructions of the court. Among the claims presented against the receiver is that of the People's National Bank, as holder of the bonds of the Wappoo Mills, collateral security for a note of C. C. Pinckney, Jr., of $8,500. Under the order of distribution in this case a dividend of $2,572.98 is payable on these bonds so held by the People's National Bank. The receiver asks the instruction of the court under the circumstances hereafter stated. C. C. Pinckney, Jr., was indebted to the People's National Bank in two notes. One note was for $8,500, secured by bonds of the Wappoo Mills as collateral. The other note was for $1,500, secured by collaterals also, but of a different character. Mr. Pinckney was the manager and sole owner of the Wappoo Mills, a corporation. In July, 1897, the Wappoo Mills, through C. C. Pinckney, Jr., contracted to sell to the Etiwan Company, another corporation, 1,500 tons ground rock at a certain price. Mr. Sloan, the president of the Etiwan Company, says that when this contract was made the condition precedent was that 50 cents of the price of each ton of ground rock should be paid by the Etiwan Company towards the payment of the debt due by C. C. Pinckney, Jr., to the People's National Bank. Mr. Pinckney denies that this was a condition precedent to the contract of sale, but he says that he had promised to do this, and had assented to the payment. Some time afterwards, in a conference with the president of the People's National Bank as to the renewal of his $1,500 note, he referred to and confirmed the action of the Etiwan Company, in paying to the bank at the rate of 50 cents per ton on all ground rock delivered to the Etiwan

Company under this contract. The sum so paid was $545. This sum was applied by the bank to the $1,500 note. When the dividend was declared, application was made to the receiver for the dividend payable on the bonds of the Wappoo Mills held by the People's National Bank. The receiver had in his hands a claim against the Etiwan Company for ground rock delivered under the contract, -1,094 tons of the 1,500 tons. Having been informed that $545 of the purchase money had been paid to the People's National Bank, he did not feel himself authorized to pay the dividend to the bank until this $545 was paid to him, or in some way accounted for. This was his proper course. When the matter was explained to him, and he ascertained that money due to the Wappoo Mills was paid on a debt due by C. C. Pinckney, Jr., individually, the receiver did not feel that he had authority to pass upon the validity of this action, nor to decide upon the right of Mr. Pinckney to direct this diversion of a debt due to the Wappoo Mills. In this, too, he acted with propriety. On this he asks the instruction of the court. When he reported the matter, the special master was instructed to take and report testimony regarding it. The result of the testimony is stated above. Counsel have been heard, and their argument, with the testimony, has been considered.

There can be no doubt that either before the contract of sale was consummated, or during its progress, or, it may be, after it was made, Mr. Pinckney agreed that 50 cents on the price of each ton of ground rock delivered should be paid in reduction of his debt to the People's National Bank; that this payment was made by the Etiwan Company to the bank; and that Mr. Pinckney ratified, confirmed, and recognized it. The sole question is as to his right to do this. Mr. Pinckney was the sole manager of the Wappoo Mills; if not the only stockholder, the owner of the largest part of its stock. He managed its affairs as if they were his own, and it is impossible to extricate them from his personal affairs. He exercised, without objection from any one, the right to use the property and funds of the Wappoo Mills as his own. Under these circumstances the Etiwan Company and the bank had the right to deal with him on this footing. His direction as to the payment of the price of the rock bound the Wappoo Mills, and it is a good credit on the account due by the Etiwan Company to the Wappoo Mills. But the receiver would not have been safe in so treating it, except under the instructions of the court in this case. The bank appropriated the money received from the Etiwan Company to the $1,500 note, instead of the $8,500 note. In the absence of any direction upon this matter by its debtor, it had the right to make the appropriation, both notes having collaterals as security. The receiver will, therefore, pay to the People's National Bank the dividend to which it is entitled on the bonds of the Wappoo Mills held and presented by it, without deduction.

The counsel for the bank ask for interest on this dividend from the time when it was payable. Interest in cases of this kind is allowed by way of damages, or is the compensation paid for the use of the money detained, when such use has been or could have been

made. In the present case the receiver was right in seeking instructions of the court, and the delay which has occurred is incidental to all litigation. Thomas v. Car Co., 149 U. S. 116, 117, 13 Sup. Ct. 824, 37 L. Ed. 663. The receiver did not and could not have used the money; so he is not liable personally for any interest. But, if he has in his hands any funds still liable for the debts of the Wappoo Mills, the bank is entitled to interest on its claim from the time of its demand. In no other way could it be put upon a footing with other creditors who received their dividends. Armstrong v. Bank, 133 U. S. 433, 10 Sup. Ct. 450, 33 L. Ed. 747; People v. E. Remington & Sons, 126 N. Y. 679, 28 N. E. 249.

BRUNSWICK TERMINAL CO. et al. v. NATIONAL BANK OF BALTIMORE.

(Circuit Court of Appeals, Fourth Circuit. February 6, 1900.)

No. 293.

1. STATUTE OF LIMITATIONS-WHAT LAW GOVERNS.

Code Ga. 1882, § 2916 (Code 1895, § 3766), providing that all suits for the enforcement of rights accruing to individuals under statutes, "acts of incorporation," or by operation of law, shall be brought within 20 years after the right of action accrues, and not the statute of limitations in Maryland, applies to an action in Maryland against a stockholder in a Georgia corporation to enforce his liability as stockholder as created by the charter of the corporation, within the rule that, where a statutory liability is sought to be enforced, and the statute prescribes the period of limitation, the law of the forum, where contrary thereto, does not govern. 2. FEDERAL COURTS-FOLLOWING DECISION OF STATE COURTS.

A federal court will follow the construction given by the supreme court of a state to a statute of limitations of that state.

Brawley, District Judge, dissenting.

Appeal from the Circuit Court of the United States for the District of Maryland.

Henry W. Williams (Goodyear & Kay and Williams & Williams, on the brief), for appellants.

D. K. Este Fisher and Allan McLane (William A. Fisher and James L. McLane, on the brief), for appellee.

Before GOFF, Circuit Judge, and BRAWLEY and WADDILL, District Judges.

WADDILL, District Judge. This is an appeal from the decree of the circuit court of the United States for the district of Maryland dismissing the bill in equity filed in that court by the appellants against the appellee. 88 Fed. 607. The bill was filed by the appellants, creditors of the Brunswick State Bank of Georgia, on their own behalf and on behalf of such other creditors as might intervene against the appellee, the National Bank of Baltimore, alleged to be liable as a stockholder in the Brunswick State Bank. The Brunswick State Bank was incorporated by an act of the Georgia legislature of October 24, 1881, and discontinued business, being insolvent,

on the 25th of May, 1893. By its charter (section 9, p. 522, Laws 1889) it is provided:

"That said corporation shall be responsible to its creditors to the extent of Its property and assets, and the stockholders, in addition thereto, shall be individually liable, equally and ratably, and not one for the other, as sureties to the creditors of such corporation, for all contracts and debts of the said corporation, to the extent of the amount of their stock therein, at the par value thereof, respectively, at the time the debt was created, in addition to the amount invested in such shares."

Code Ga. 1882, § 1496, further provides:

"When a stockholder in any bank or other corporation is individually liable under its charter, and shall transfer his stock, he shall be exempt from such a liability, unless he receives a written notice from a creditor, within six months after such transfer, of his intention to hold him liable: provided, he shall give notice for once a month, for six months, of such transfer, immediately thereafter, in two newspapers in and nearest the places where said institution shall keep its principal office."

The appellee was at one time a stockholder of the Brunswick State Bank of Georgia, and, upon transfer of its stock, failed to comply with the statutory provisions last set forth, and appellants claim that it has incurred the stockholders' liability provided for in the charter herein before recited, and is liable to them in this suit.

In the lower court the appellee appeared, and filed its answer, setting up, among other defenses, that of the statute of limitations, and insisted that the case was governed by the Maryland statute of limitations, applicable to actions of assumpsit or actions of debt on simple contracts (Code Md. [Pub. Gen. Laws] art. 57, § 1), which requires the suit in such cases to be commenced within three years from the time the right of action accrues. The appellants, complainants in the lower court, demurred to the plea of the statute of limitations thus set up, and elected to stand upon the demurrer, and the case turned upon that question solely, the court overruling the demurrer to said plea, and dismissing the bill.

The single question to be determined in this case is whether the statute of limitations of the state of Maryland or of the state of Georgia applies to the claim sued on. The merits of the case were not touched upon by the decision of the lower court, and it is not the purpose of this court to express any opinion thereon. It is a general rule, too well settled to admit of serious controversy at this late day, that the remedies, as distinguished from the rights of the parties, are determined by the law of the forum, and that the statutes of limitations are part of the remedy, and not of the laws affecting rights. McElmoyle v. Cohen, 13 Pet. 312, 327, 10 L. Ed. 177; Bank v. Eldred, 130 U. S. 693, 696, 9 Sup. Ct. 690, 32 L. Ed. 1080; Telegraph Co. v. Purdy, 162 U. S. 329, 339, 16 Sup. Ct. 810, 40 L. Ed. 986; Willard v. Wood, 164 U. S. 502, 520, 17 Sup. Ct. 176, 41 L. Ed. 531; Townsend v. Jemison, 9 How. 407, 13 L. Ed. 194; Railway Co. v. Wyler, 158 U. S. 285, 289, 15 Sup. Ct. 877, 39 L. Ed. 983. There are, however, exceptions to this rule; one being where a statutory liability is sought to be enforced, and the statute prescribes the period of limitation. In this case the general