Opinion of the Court.

earned by one Oscanyan under a contract for the sale of firearms to the Turkish government. Plaintiff's counsel as preliminary to the introduction of testimony, stated to the court and to the jury the issues in the case and the facts proposed to be proved. That statement disclosed a contract that was void, as being corrupt in itself, and prohibited by morality and public policy. The defendant thereupon moved the court to direct the jury to render a verdict in its favor. The plaintiff's counsel having, in response to a direct inquiry by the court, asserted the truth of the statement so made by him to the jury, the motion for a verdict in favor of the defendant was sustained. This court said that the power to act in the disposition of a trial upon facts conceded by counsel is as plain as its power to act upon the evidence produced. But it further said: "Of course, in all such proceedings nothing should be taken, without full consideration, against the party making the statement or admission. He should be allowed to explain or qualify it, so far as the truth will permit; but if, with such explanation and qualification, it should clearly appear that there could be no recovery, the court should not hesitate to so declare and give such direction as will dispose of the action.”

The manner in which the trial below was conducted did not comport with the spirit of this rule. While, as to some matters, the bill of exceptions is obscure, it is clear that the court below was of opinion that the facts stated by the defendant in his opening to the jury did not constitute a defence to the action. But this opinion was based upon the belief that the defendant did not state that he had accounted for and paid over to the asylum the sums for which he was sued. When, however, the defendant assured the court that it was under a misapprehension as to what he had stated, and that he had claimed, in his opening, to have fully accounted for and paid over every dollar of the amount charged against him, he should have been allowed to introduce proof of such facts. If the proof, when formally offered, would not have tended, in law, to establish those facts, it could have been excluded. Such facts were clearly admissible under the answer of the defendant, and if they were not, strictly, included in the words of his opening

Dissenting Opinion: Brown, J.

to the jury, it was error, under the circumstances, to have denied him the privilege of showing that he had, in fact, accounted for and paid over all the moneys for which he was sued. We are the more inclined to so hold because the court below observed to the jury that nothing had occurred in the testimony which in the slightest degree reflected upon the integrity or upright conduct of any one who was then or had been concerned at any time in this transaction. And if, as the court observed, the case was "confused," and the matter a "bookkeeper's puzzle or problem," there was so much the more reason why the defendant should have been allowed the benefit of his assurance that his opening proceeded upon the distinct ground that he had accounted for and paid over to the asylum the sums which he was charged to have improperly withheld.

We are of opinion that the case was not fully tried, and as, for that reason, it must go back for another trial, we forbear any expression of opinion upon the questions of law raised by the record now before us.

The judgment is reversed, with directions to grant a new trial.

MR. JUSTICE BROWN dissenting.

I am unable to see wherein the court failed to give the defendant a proper opportunity of putting his case before the jury. After the plaintiff had rested its case, defendant moved for an instruction that a verdict be returned in his favor, which was denied. The defendant thereupon made a long and elaborate opening to the jury, claiming in substance two defences: first, that he had duly accounted for the money; and, second, that he was entitled by way of set-off to compensation for his services as Treasurer of the Home. In support of his first defence he made a statement of facts which, as I understand, were not disputed, but which had no tendency to show that he had duly accounted for the money, and put a witness upon the stand to give testimony which the court held was not relevant to the issue, and made out no defence. The court thereupon ruled that the statement of facts made in the opening to the jury, assuming them to be true, did not consti

Dissenting Opinion: Brown, J.

tute a defence to the action, and suggested that, if the defendant wished to offer any testimony as to matters of fact beyond and outside of the opening, he would hear his statement of what those facts were, and pass upon them; but if there were nothing beyond that which had already been offered, he would hold that they were irrelevant and constituted no defence. In reply to this, defendant stated that he proposed to show that the moneys charged against him were duly accounted for and paid over; and in reply to a suggestion of the court that he ought to state what substantial facts he expected to prove, which were not recited in his opening, said: "I do not offer any fact except the fact which I opened to the jury, that I had accounted for and paid over every dollar of money, including this money." This the court held, under the facts above set forth, to be irrelevant, and then stated that the only question for the jury was as to the credibility of the plaintiff's testimony.

It was held by this court in Oscanyan v. Arms Co. that where it is shown by the opening statement of the plaintiff's counsel that he has no case, the court may direct the jury to find a verdict for the defendant without going into the evidence. I know of no reason why the same rule should not apply to the defendant, who assumes in his opening to state a defence. If the facts stated in such opening do not constitute a defence, the court is at liberty to rule out the evidence, and either direct a verdict for the plaintiff or submit the case to the jury upon the plaintiff's testimony. In this case the defendant offered simply to show that he had accounted for the money. This was clearly not a statement of fact, but of a legal conclusion. It was as if, in an action of ejectment, the defendant should state that he proposed to show that he had the title to the lands in question; or, in an action for breach of contract, that he had not broken the contract. In such case, while the defendant may elect whether to make an opening or not, if he does make a statement of facts upon which he relies, and such facts are not, in the opinion of the court, relevant, I think the court may properly call upon him to state any further facts that he intends to prove, and if he de

Syllabus.

clines to make a statement other than he has already made, it may lawfully assume that these constitute his entire defence. The facts stated by the defendant in this case in support of his defence that he had accounted for the money, were simply calculated to confuse the jury, without tending in any way to show that he should not be charged with the sum in controversy.

I am wholly unable to see that any injustice was done to the defendant upon this trial, and think the judgment should be affirmed.

THE CHIEF JUSTICE and MR. JUSTICE GRAY took no part in the decision of this case.

KENT v. LAKE SUPERIOR SHIP CANAL, RAILWAY AND IRON COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NEW YORK.

No. 149. Argued January 8, 1892. — - Decided March 14, 1892.

Remedy for error in a decree for the foreclosure and sale of property mortgaged to a trustee for the benefit of holders of bonds issued under the mortgage, or in the sale under the decree, must be sought in the court which rendered the decree and confirmed the sale.

A canal company which had issued several series of bonds, secured by mortgages on its property, defaulted in the payment of interest on all. Bills were filed to foreclose the several trust deeds, and a receiver was appointed. On due notice to all parties receiver's certificates were issued to a large amount for the benefit of the property, which certificates were made a first lien upon it. The property was sold under a decree of foreclosure and sale, and the purchasers paid for the same in receiver's certificates, the amount of the bid being less than the amount of the issue of such certificates. On a bill filed by a holder of bonds issued under one of the mortgages foreclosed, Held,

(1) That his remedy should have been sought in the court which rendered the decree;

Statement of the Case.

(2) That the paramount lien of the receiver's certificates having been recognized by the trustee of the mortgage under which the bonds were issued, his action in that respect was, so far as appeared, within the discretion reposed in him by his deed.

THIS was a bill in equity brought in the Supreme Court in and for the county of Kings, New York, February 7, 1884, by Andrew Kent as executor and trustee of the last will and testament of Jonathan T. Wells, deceased, against the Lake Superior Ship Canal, Railway and Iron Company; Theodore M. Davis; Theodore M. Davis as receiver of the Ocean National Bank of New York; J. Boorman Johnston, Isaac H. Knox and Gordon Norrie, being the surviving partners of the firm of J. Boorman Johnston & Co.; Frederick Ayer, sole surviving partner of the firm of J. C. Ayer & Co.; Frederick F. Ayer, Josephine Ayer and Benjamin Dean, administrators, with the will annexed, of the estate of James C. Ayer, deceased; and Thomas N. McCarter; and subsequently removed into the Circuit Court of the United States for the Eastern District of New York.

The bill alleged that July 6, 1864, the Portage Lake and Lake Superior Ship Canal Company was organized as a corporation under the laws of Michigan for the purpose of constructing a ship canal to connect the waters of Portage Lake and Lake Superior; that by an act of Congress, approved March 3, 1865, two hundred thousand acres of public land were granted to the State of Michigan "to aid in building a harbor and ship canal at Portage Lake, Keweenaw Point, Lake Superior," subject to the condition, among others, that they should revert to the United States in case the said canal and harbor should not be completed in two years from the passage of the act; that by an act entitled "A bill to accept a grant of land by act of Congress to aid in the construction of the ship canal at the head of Portage Lake with Lake Superior, and to provide for the construction of the same," passed March 16, 1865, by the legislature of Michigan, the grant was accepted and conferred upon said Portage Lake and Lake Superior Ship Canal Company, subject to the condition "that none of said lands shall be sold or otherwise disposed of, except