182-192 sitting member for that time, voted, served on committees, and drew the salary from January 25, 1887, to March 3, 1887, amounting to $531.82, and also received mileage in the sum of $175.20. Page, by his petition to the court of claims, claimed that he was entitled to the full pay of $5,000 a year for the two years from March 3, 1885, to March 3, 1887, and that therefore he was entitled to the further payment of $9,468.18. The contention of Page is that, on the facts found, Pirce, not having been elected a member of the Forty-ninth Congress, was never such member; that therefore he was not the predecessor of Page within the meaning of section 51 of the Revised Statutes; and that the member of the House of Representatives from the Second Congressional District of Rhode Island in the Forty-eighth Congress was such predecessor. UNITED STATES, Appt., v. STATE OF LOUISIANA. (See S. C. Reporter's ed. 182-192.) Proceeds of swamp lands not a trust fund-Act of 1850-five per cent fund-Statute of Limitations. 1. The proceeds of the swamp lands granted by the Act of 1850 are not subject to a property trust, of the State, in such sense that the claim of the either in the hands of the United States or in those United States upon the State, for the overdue coupons on the Indian trust bonds issued by the State, cannot be set off against the claim of the State to the swamp land fund. 2. Under the Act of 1850 the swamp lands are to be conveyed to the State as an absolute gift, with a direction that their proceeds shall be applied, as far as necessary, to reclaiming the lands. There is nothing to prevent the application, by the State, of the swamp land fund to general purposes. 3. The five per cent fund provided for in the Act of 1811 is not of such a character that the debt due the overdue coupons on the Indian trust bonds to the United States by the State of Louisiana for cannot be set off against the fund which is in the hands of the United States. 4. The limitation of six years in section 1069 of the Revised Statutes applies to a claim of the State for Submitted April 2, 1888. Decided April 23, 1888. Section 51 of the Revised Statutes provides as follows: "Whenever a vacancy occurs in either House of Congress, by death or other wise, of any member or delegate elected or appointed thereto, after the commencement of the Congress to which he has been elected or appointed, the person elected or appointed to fill it shall be compensated and paid from the time that the compensation of his predecessor ceased." The argument made is that, under this section, no person could have been the Claims awarding to the State of Louisiana predecessor of Page unless he was a member APPEAL from a judgment of the Court of elected for the Forty-ninth Congress; and a claim, under the Act of February 20, 1811, that Pirce was declared by the House of Rep- chapter 21, 2 Stat. at L. 641, to the five per cent resentatives not to have been elected such fund, and a claim, under the Act of September member. But, although Pirce may not have 28, 1850, chapter 84, 9 Stat. at L. 519, and the been so elected, it does not follow that he was Act of March 2, 1855, chapter 147, 10 Stat. at not the predecessor of Page within the mean-L. 634, to the swamp land fund. Reversed. ing of section 51, or that the representative in the 48th Congress was such predecessor. Reported below, 22 Ct. Cl. 85. 284. The chief question in this case is as to the character of the respective funds upon which the claim of the State of Louisiana is based. Are they, respectively, trust funds? This question was argued, but was passed over without notice, in United States v. Louisiana, 123 U. S. 32 (ante, 69). The proper construction of section 51 is that the predecessor of the person elected to fill a vacancy must be a person who was the prede-lant: cessor in the same Congress. If no such person is to be found, because no such person was duly elected, Page had no predecessor in the sense of section 51, and that section does But we think that, not apply to his case. under the proper construction of section 51, Pirce was the predecessor of Page as to compensation or salary. His credentials showed that he was regularly elected; he must have been placed on the roll of Representatives-elect, under section 31 of the Revised Statutes; he was sworn in, took his seat, voted, served on committees, and drew the salary and the mile age. Under sections 38 and 39 he was entitled to his salary, because his credentials, in due form of law, had been duly filed with the clerk, under section 31, and because he took the required oath. Section 51 refers only to a vacancy occurring after the commencement of a particular Congress, and in the membership of that Congress; and the reference to a "predecessor" is plainly intended to apply only to a predecessor in that Congress. If there was any such predecessor of Page, it was Pirce. If there was no predecessor of Page in that Congress, section 51 does not apply to the case. The judgment of the Court of Claims is affirmed. The grant is an absolute gift, coupled with the provision that so much thereof as may be necessary shall be used for the purpose named. Wright v. Roseberry, 121 U. S. 488 (30:1039). The funds are not trust funds, and the Government not a trustee. Rice v U. S. 122 U. S. 611 (30:793). The net proceeds of these lands are in the treasury like any other money, and not as a specific fund. American Emigrant Co. v. Wright County, 97 U. S. 339 (24:912); American Emigrant Co. v. Adams County, 100 U. S. 66 (25:565). The question of jurisdiction under the Statute of Limitations was passed upon in U. S. v. Louisiana, 123 U. S. 32 (ante, 69); Louisiana v. U. S. 22 Ct. Cl. 284. Messrs. William E. Earle and James L. Pugh, Jr., for appellee: The Statute of Limitations does not have any application to the demand arising upon the Swamp Land Acts. 127 U. S. Wright v. Roseberry, 121 U. S. 488, 501 (30: | 1039, 1042); U. S. v. Louisiana, 123 U. S. 37 (ante, 72); Rice v. U. S. 122 U. S. 611 (30:793). The statute does not begin to run until notice of the disavowal of the trust. The Commissioner of the General Land Of fice has by law exclusive jurisdiction in all matters appertaining to the surveying and sale of the public lands of the United States, and power to audit and settle all public accounts relating to the public lands. See Baldwin v. Stark, 107 U. S. 465 (27: 526); Marquez v. Frisbie, 101 U. S. 473 (25: 800); Shepley v. Cowan, 91 U. S. 331 (23: 424). Á trustee is a person in whom some estate, interest, or power in or affecting property of any description is vested for the benefit of another. Perry, Trusts. No particular form of words is required to create a trust. 4 Kent, 305. The repudiation of the trust must be clear and unequivocal; the knowledge of the repudiation must be brought home to the party to be affected by it. U. S. v. Taylor, 104 U. S. 222 (26:723), and cases cited. See also Speidel v. Henrici, 120 U. S. 380 (30: 718). This was not a donation in the sense of a gift or gratuity. Long v. Brown, 4 Ala. 629. States and municipalities may be trustees. McDonogh v. Murdock, 56 U. S. 15 How. 367 (14: 732). The Acts of Congress granting the swamp lands to the States, and providing for the payment of the indemnities, expressly and specifically provide that they shall be applied to purposes designated with certainty, and for uses which are particularly and definitely limited. These conditions in the grant, and the contract thereby created, constitute an express trust. American Emigrant Co. v. Wright County, 97 U. S. 339 (24:912); American Emigrant Co. v. Adams County, 100 U. S. 66 (25:565); Mills County v. Burlington & M. R. R. R. Co. 107 U. S. 564 (27:581). It is a personal trust in the public faith of the State. Dunklin County v. Dunklin County Dist. Ct. 23 Mo. 456; Cooper v. Roberts, 59 U. S. 18 How. 173 (15:338). Mr. Justice Blatchford delivered the opinion of the court: Act of March 2, 1855, chap. 147, 10 Stat. at L. 634. Sections 1, 2, and 4 of the Act of 1850 read as follows: "That, to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, made unfit thereby for cultivation, which shall remain unsold at the passage of this Act, shall be, and the same are hereby, granted to said State. Sec. 2. That it shall be the duty of the Secretary of the Inte. rior, as soon as may be practicable after the passage of this Act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas, and, at the request of said Governor, cause a patent to be issued to the State therefor; and on that. patent the fee-simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the Legislature thereof: Provided, however, That the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.' "Sec. 4. That the provisions of this Act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated." tion 1 of the Act of 1855 provided that the President should cause patents to be issued to purchasers or locators who had made entries of public lands claimed as swamp lands, prior to the issue of patents to the State, as provided for by section 2 of the Act of 1850, except in certain specified cases. Section 2 of the same Act provided as follows: "That upon due proof, by the authorized agent of the State or States, before the Commissioner of the General Land Office, that any of the lands purchased were swamp lands, within the true intent and meaning of the Act aforesaid, the purchase money shall be paid over to the said State or States. Sec The State alleged, in its petitions in the court of claims (for there were two suits, which were consolidated), that the moneys due to it under the Act of 1811, instead of being paid over to it by the United States, had been unlawfully credited upon certain bonds alleged to have been issued by the State, and claimed to be held by the United States as an investment of certain Indian trust funds; that, as to the Acts of 1850 and 1855, moneys were due to the State thereunder, which had been legally ascertained and certified, but, instead of being paid over to the State, had been credited on bonds of the same kind; and that the sums referred to as being ascertained and found due to the State were trust funds, to be devoted to specific purposes, under the provisions of the Acts grant This is an appeal by the United States from a judgment of the court of claims, awarding to the State of Louisiana the sum of $43,572.71. There are claims of two kinds involved in the suit. The first claim arises under the Act of February 20, 1811, chap. 21, 2 Stat. at L. 641, which authorized the inhabitants of Louisiana to form a Constitution and a State Government.ing them to the State. The 5th section of that Act provided as follows: "That five per centum of the net proceeds of the sales of the lands of the United States, after the first day of January, shall be applied to laying out and constructing public roads and levees in the said State, as the Legislature thereof may direct." The second claim arises under sections 1, 2, and 4 of the Act of September 28, 1850, chap. 84, 9 Stat. at L. 519, and sections 1 and 2 of the The United States, in addition to a general traverse, put in a special plea of set-off, alleging that the State was indebted to the United States in the amount of interest which had accrued on bonds issued by the State and held by the United States. The court of claims found as facts: (1) that, of the five per cent fund accruing to the State under the Act of 1811, there remains due from the United States to the State, as credited on the the books of the Treasury Department, the fol- which they might be found, with an injunction lowing sums: May 8, 1879, $13,602.71; June 8, that the lands and their proceeds should be ap1882, $63.47; February 7, 1884, $22,773.51; propriated to reclaiming the swamp lands; and making a total of $36,439.69; and that, of the if, when this was accomplished, anything was swamp land fund accruing to the State under left, to building roads and bridges over the the Acts of 1850 and 1855, there remains due same; and lastly, the remainder to be used in from the United States to the State, as credited building roads and bridges in other parts of the on the books of the Treasury Department, the county. By subsequent legislation of following sums: May 26, 1886, $3,803.02; Sep-State, the counties were authorized to depart tember 9, 1886, $1,110; May 2, 1887, $1,730.41; May 4, 1887, $489.59; making a total of $7,133.02; (2) that the First Comptroller of the Treasury, at the dates stated in finding 1, admitted and certified the above sums to be due to the State on account of the five per cent fund and the indemnity for swamp lands purchased by individuals within the State, but directed those amounts to be credited on moneys due the United States, as stated in finding 3; and that it does not appear that the state authorities had knowledge of this proceeding; (3) that the United States own coupon bonds issued by the State, amounting to $37,000, payable in 1894, known as the Indian Trust bonds, and also hold and own overdue coupons attached to those bonds, representing the interest from May 1, 1874, to November 1, 1887, amounting to $31,080. The court gave a judgment in favor of the claimant for the total of the two amounts of $36,439.69 and $7,133.02, namely, $43,572.71. The contention of the United States in the court of claims was that, under section 1069 of the Revised Statutes, which provides that every claim against the United States, cognizable by that court, shall be forever barred unless the petition setting forth a statement thereof is filed in the court within six years after the claim first accrues, the court had no jurisdiction in respect to the sum of $13,602.71, credited on the books of the Treasury Department on the 8th of May, 1879, as a part of the five per cent fund, because the first of the two petitions was not filed until February 1, 1887. Deducting this sum of $13,602.71 from the $43,572.71 would leave the sum of $29,970; and it was contended by the United States that the claim for this sum was more than covered by the set-off of the $31,080 due by the State on the coupons on the Indian Trust bonds. from this injunction, and to use the lands for public buildings and internal improvements; but the assent of the majority of the voters of the county to such purpose was required. The State also authorized the sale of all the lands to any person or corporation by a written contract, to be in like manner submitted to the vote of the county; but the sale was to be subject to the proviso that the vendee should take the lands subject to all the provisions of the Act of Congress of 1850. Wright County, with the assent of a majority of the voters of the county, having contracted in writing with the Emigrant Company to sell to it all the swamp lands in the county, and the claim of the county for indemnity against the United States for swamp lands which had been sold by the United States, and having executed a deed of a quantity of the lands to the company, the county filed a bill in equity to set aside the contract and deed, and obtained a decree to that effect in the circuit court. In the opinion of this court, delivered by Mr. Justice Miller, the proposition urged by the plaintiff in the suit was considered, namely, that the contract was void on its face because it contemplated a diversion of the fund in violation of the original grant. As regarded that proposition, the court said: "It is not necessary to decide it in this case, and we do not decide that the contract is, for that reason alone, void. But we are of opinion that any purchaser of these lands from the county, or of the claim of the county to indemnity, must be held to know that in the hands of the county they were impressed with an important public trust; and that, in examining into the fairness and honesty of such a purchase, this consideration constitutes an important element of the decision." The court then proceeded, in its opinion, to hold that The court of claims held that the two funds the contract must be rescinded, because of in question, in the treasury of the United States, what amounted to fraud in the manner in which were trust moneys, to be held for special pur- it was procured, namely: that the officers and poses, at first by the United States, and by the citizens of the county were ignorant of the State after a transfer to it; that the trust had nature and value of what they were selling; not been disavowed or annulled by Congress; that the vendee was well informed in regard to that it became the duty of the executive officers both, and withheld such information unfairly of the United States, in charge of the funds, to from the officers of the county; and that there hand them over to the State as a succeeding was a provision in the contract "for a diversion trustee; that the credit given to the State in the of the fund to other purposes, a gross inadeTreasury Department, on its indebtedness to quacy of consideration, and a successful specuthe United States, for the amount of the cou-lation at the expense of the rights of the public." pons on the Indian Trust bonds, was without authority of law; that, consequently, the funds were free from liability to the set-off; and that the claim of the State to the $13,602.71 was not barred by section 1069 of the Revised Stat utes. The provisions of the swamp land Act of 1850 have been before this court in several cases. In American Emigrant Co. v. Wright County, 97 U. S. 339 [24: 912], at October Term, 1877, the State of Iowa had, by statute, granted the swamp lands to the counties of the State in Questions arising under the same Act of Congress of 1850, and the same legislation of Iowa, came before this court again, at October Term, 1879, in Emigrant Co. v. Adams County, 100 U. S.61 [25:563]. In that case the County of Adams had made a contract with the Emigrant Company to convey to it the county's swamp lands, and claim for indemnity against the United States on account of swamp lands which had been sold by the United States; and had given a deed in pursuance of the contract. It afterwards filed a bill to rescind the contract and the deed, and obtained in the circuit court a decree to that effect, which this court reversed. The case was twice argued here. In the opinion of the court, delivered by Mr. Justice Bradley, it was stated that there was no sufficient proof that the contract was procured by false and fraudulent representations. It was also said of the Act of 1850, that by it the lands "were granted to the several States in which they lie, for a purpose expressed on the face of the Act; and that purpose was 'to enable the State to construct the necessary levees and drains to reclaim them.' The opinion added: "Our first view was that this trust was so explicit and controlling as to invalidate the scheme finally devised by the Legislature of Iowa for the disposal of the land, and under which the contract in question was made. But, on more mature reflection, after hearing additional argument, we are satisfied that such a result did not necessarily follow." The opinion then referred to the Act passed by the Legislature of Iowa in 1858, by which it was declared that it should be competent and lawful for the counties owning swamp and overflowed lands to devote the same, or the proceeds thereof, either in whole or in part, to the erection of public buildings for the purpose of education, for the building of bridges, roads, and highways, and for building institutions of learning, or for making railroads through the county or counties to which such lands belonged. The opinion then proceeded: "The contract in dispute was made under this law, and our first impression was that it introduced a scheme subversive of the trust imposed upon the State by the Act of Congress; that its effect was to devote the lands and proceeds thereof to purposes different from those which the original grant was intended to secure; that it threw off, or endeavored to throw off, all public responsibility in relation to the trust; and hence that the scheme itself and the contract based upon it were void. But a reconsideration of the subject has brought us to a contrary conclusion. The argument against the validity of the scheme is that it effects a diversion of the proceeds of the lands from the objects and purposes of the congressional grant. These were declared to be to enable the State to reclaim the lands by means of levees and drains. The proviso of the second section of the Act of Congress declared that the proceeds of the lands, whether from sale or direct appropriation in kind, should be applied exclusively, as far as necessary, to these purposes. This language implies that the State was to have the full power of disposition of the lands; and only gives direction as to the application of the proceeds, and of this application only as far as necessary' to secure the object specified. It is very questionable whether the security for the application of the proceeds thus pointed out does not rest upon the good faith of the State, and whether the State may not exercise its discretion in that behalf without being liable to be called to account, and without affecting the titles to the lands disposed of. At all events, it would seem that Congress alone has the power to enforce the conditions of the grant, either by a revocation thereof, or other suitable action, in a clear case of violation of the conditions. And, as the application of the proceeds to the named objects is only prescribed as far as necessary,' room is left for the exercise, by the State, of a large discretion as to the extent of the necessity. In the present case it is not shown by allegations in the bill, or otherwise (if such a showing would be admissible), that any necessity existed for devoting the proceeds of the lands in question to the purposes of drainage. No case is shown as the basis of any complaint, even on the part of the General Government, much less on the part of the County of Adams, which voluntarily entered into the arrangement complained of. Our conclusion, therefore, is that this objection to the validity of the contract cannot prevail." The opinion then overruled the other grounds urged in favor of the plaintiff, reversed the decree below, and directed a decree to be entered dismissing the bill without prejudice to the right of the county to bring an action at law for any breach of the terms of the contract. The provisions of the Swamp Land Act of 1850, and of the Iowa statutes in regard to the swamp lands, were again considered by this court in Mills County v. Burlington & M. R. R. R. Co. 107 U. S. 557 [27:578] at October Term, 1882, the opinion of the court being delivered by Mr. Justice Bradley. In that case reference was made to American Emigrant Co. v. Wright County, supra, and it was said that the contract there was declared to be void for actual fraud of the grossest character," and that the question as to whether the disposition of the lands operated as a diversion of the fund, in violation of the original grant, was not fully considered. The opinion also referred to the case of American Emigrant Co. v. Adams County, supra, and quoted a large part of the extract above given from the opinion in that case, and then added: "Upon further consideration of the whole subject, we are convinced that the suggestion then made, that the application of the proceeds of these lands to the purposes of the grant rests upon the good faith of the State, and that the State may exercise its discretion as to the disposal of them, is the only correct view. It is a matter between two sovereign powers, and one which private parties cannot bring into discussion. Swamp and overflowed lands are of little value to the government of United States, whose principal interest in them is to dispose of them for purposes of revenue; whereas, the State Governments, being concerned in their settlement and improvement, in the opening up of roads and other public works through them, in the promotion of the public health by systems of drainage and embankment, are far more deeply interested in having the disposal and management of them. For these reasons, it was a wise measure on the part of Congress to cede these lands to the States in which they lay, subject to the disposal of their respective Legislatures; and, although it is specially provided that the proceeds of such lands shall be applied, 'as far as necessary,' to their reclamation by means of levees and drains, this is a duty which was imposed upon and assumed by the States, alone, when they accepted the grant; and whether faithfully performed or not is a question between the United States and the States; and is neither a trust following the lands nor a duty which private parties can enforce as against the State." These views were confirmed in the case of 96-105 SUPREME COURT OF THE UNITED STATES. Hagar v. Reclamation District, 111 U. S. 701, | to be conveyed to the State as an absolute gift, 713 [28: 569, 574] at October Term, 1883, where with a direction that their proceeds shall be apit was said of the Swamp Land Act of 1850 plied exclusively, as far as necessary, to the that the appropriation of the proceeds of the purpose of reclaiming the lands. The judgsale of the lands rested solely in the good faith ment of the State as to the necessity is paraof the State; and that its discretion in disposing mount, and any application of the proceeds by of them was not controlled by the condition the State to any other object is to be taken as mentioned in the Act, as neither a contract nor the declaration of its judgment that the apBy the 2d section a trust following the lands was thereby created. plication of the proceeds to the reclamation of In the case of Louisiana v. United States, 22 the lands is not necessary. Ct. Cl. 284, the State of Louisiana sued the of the Act of 1855 it is provided that the purUnited States for claims arising under the five chase money received by the United States for There is nothing in these per cent Act of 1811, and under the Swamp the swamp lands sold by them shall be paid Land Acts of 1850 and 1855, and had a judg- over to the State. ment for both claims, amounting to $71,385.83, provisions of the character of a property trust, which was affirmed by this court, in United and nothing to prevent the application, by the States v. Louisiana, 123 U. S. 32 [ante, 69]. State, of the swamp land fund to general purIf the power exists anywhere to enforce In that case the United States interposed the poses. defense of the limitation of six years as to the any provisions attached to the grant, it resides swamp land claim. The court of claims held in Congress, and not in the court. that the action of the Commissioner of the General Land Office, under section 2 of the Act of 1855, in determining, on proof by the agent of the State, that any of the swamp land had, within the meaning of the Act, been sold by the United States, so as to bring into force the requirement that the purchase money should be paid over to the State, was necessary to a right of action for the money on the part of the State; and that, as such action in that case did not occur more than six years before the bringing of the suit, the limitation prescribed by section 1069 of the Revised Statutes did not apply. A set-off or counterclaim was interposed in that case by the United States, they alleging that the amount due by citizens of the State of Louisiana to the United States for the direct tax levied by the Act of August 5, 1861, 12 Stat. at L. 292, was a proper subject of set-off against the claim of the State in the suit. This contention of the United States was overruled by It results from these views that the judgment the court of claims, on the ground that the State had never assumed the payment of the tax of the Court of Claims must be reversed, and the assessed under the Act of 1861. On the ap-case be remanded to that court, with a direction peal to this court by the United States, 123 Ú. to enter a judgment in favor of the United S. 32 [ante, 69], it was said, in the opinion of States. the court, delivered by Mr. Justice Field, that the Statute of Limitations did not seem to have any application to the demand arising upon the Swamp Land Acts; and that, as the Commissioner of the General Land Office had not found and certified the amount due to the State from the sales of swamp lands until the 30th of June, 1885, and the suit was commenced in September, 1886, the limitation of the statute did not apply to the case. It was further held that the State was not liable for the taxes assessed under the Act of August 5, 1861, against the real property of private individuals in the State, and that the court of claims had jurisdiction of the action. Therefore the judgment was affirmed. In accordance with the views of this court in the cases above cited, it must be held that the proceeds of the swamp lands are not subject to a property trust, either in the hands of the United States or in those of the State, in such sense that the claim of the United States upon the State for the overdue coupons on the Indian Trust bonds, involved in the present case, cannot be set off against the claim of the State to the swamp land fund. Under the Act of 1850 the swamp lands are The same views apply to the provision as to the five per cent fund, in the Act of 1811, that it shall be applied to laying out and constructing public roads and levees in the State. "as the Legislature thereof may direct;" and, as to both the five per cent fund and the swamp land fund, we are of opinion that neither of them is of such a character that the debt due to the United States by the State of Louisiana, for the overdue coupons on the Indian Trust bonds, canThis being so, it not be set off against the fund which is in the hands of the United States. follows that the limitation of section 1069 of the Revised Statutes is a bar against the recovery of the item of $13,602.71 of the five per cent fund, credited May 8, 1879, and that the amount of the set-off of $31,080, for coupons falling due up to November 1, 1887, on the Indian Trust bonds, is a valid set-off against the remaining $29,970, and is more than sufficient to extinguish that item. EMMA J. BLACKLOCK ET AL., Appts., v. JACOB SMALL ET AL. (See S. C. Reporter's ed. 96-105.) Jurisdiction of circuit court-action by assignee -decree dismissing suit. 1. The Circuit Court of the United States has no jurisdiction of a suit which is substantially by and for the benefit of one of the defendants, named therein, who was at the time of the commencecitizen of the same State with another defendant ment of the suit, and has since continued to be, a therein, against whom the substantial relief in the action is claimed. 2. An action to recover amount of a bond, and for a foreclosure of the mortgage given to secure it, and a sale of the mortgaged premises, is not within the jurisdiction of the circuit court, when brought by an assignee of the bond, in a case in which the assignor could not prosecute such a suit. 3. Where the circuit court ought to have dismissed a suit for want of jurisdiction, and not upon the merits, its decree dismissing it on the merits will be reversed, and the case remanded, with directions to dismiss the suit for want of jurisdiction. [No. 148.] 1888. Argued April 10, 11, 1888. Decided April 23, 127 U. S. |