itors, first those named in Schedule A, then those named in Schedule B, each set to be paid in full, and, if not enough to pay all, then to be paid pro rata. The balance, if any, left in the hands of Waples, was to be paid to Malcolm.

The plaintiff filed a reply, controverting all the allegations of Waples' pleading, and denying that Waples was in possession and control, and entitled to possession and control, of the attached property, or that the instrument referred to was, or is, or was intended to be, a mortgage with power of sale. It averred that, as to it, "the said instrument, and all acts done by said Malcolm and said Waples in connection with the execution thereof, and all acts done by either of them, or by any person under and by virtue of it, are, and ever have been, fraudulent, and tended to hinder and delay plaintiff in thecollection of their debt, and was contrived and intended with the fraudulent intent to cheat, hinder, or delay the plaintiff and the creditors in the collections of its and their debt, and was and is void."

The reply further alleged "that the said instrument was and is a deed of assignment, and, as such, is in violation of the law gov erning voluntary assignments, and was and is wholly void, and the said interpleader never acquired any rights under the same, and it never gave him any right to the possession of the property attached in this action, and that said Waples never had, and has not now, under and by virtue of the said instrument, any right to take or hold possession of the said property, and has no right to recover the same in this action."

Judgment was taken by the plaintiff against Malcolm for the amount of the debt due from him, and, the cause having been tried between the plaintiff and Waples, as well as upon the issue raised by the attachment, the jury found for Malcolm on the latter issue, and for Waples as to the property in controversy. Judgment upon that verdict having been entered, a writ of error was prosecuted to the United States circuit court of appeals for the Eighth circuit, and the judgment of the court in the Indian Territory was affirmed. 19 U. S. App. 229, 7 C. C. A. 426, and 58 Fed. 670.

The fundamental question in this case is whether the instrument of January 19, 1891, executed by Malcolm, is a deed of trust in the nature of a mortgage, or a deed of assignment for the benefit of creditors. This instrument was before the circuit court of appeals of the Eighth circuit in Hat Co. v. Malcolm, 10 U. S. App. 249, 2 O. C. A. 476, and 51 Fed. 734, 737, and that court held it to be a deed of trust in the nature of a mortgage,-the legal equivalent of a mortgage with a power of sale,-upon the authority of the decisions of the supreme court of Arkansas construing the statute of that state regulating assignments for the benefit of creditors, which statute became a part of the law of the Indian Territory

under the act of congress of May 2, 1890, c. 182, 31 (26 Stat. 81, 94).

By the statutes of Arkansas relating to as signments it is provided: "Sec. 305. In allcases in which any person shall make an assignment of any property, whether real, personal, mixed or choses in action, for the payment of debts before the assignee thereof shall be entitled to take possession, sell or in any way manage or control any property so assigned, he shall be required to file in the office of the clerk of the court exercising equity jurisdiction a full and complete inventory and description of such property, and also make and execute a bond to the state of Arkansas in double the estimated value of the property in said assignment, with good and sufficient security, to be approved by the clerk of said court, conditioned that such assignee shall ex ecute the trust confided to him, sell the property to the best advantage and pay the proceeds thereof to the creditors mentioned in said assignment according to the terms thereof, and faithfully perform the duties according to law." Act Feb. 16, 1859, § 1, as amended by Act Feb. 23, 1883 (Mansf. Dig. 1884, p. 219).

If the instrument executed by Malcolm was, within the meaning of the statute, an assignment for the benefit of creditors, then Waples' possession of the property was unauthorized, for he did not comply with the provisions of the statute by filing the inventory and giving the bond required.

In Richmond v. Mississippi Mills, 52 Ark. 31, 11 S. W. 962, the court said: "We do not hold that the giving of one or more mortgages, the confession of judgments, or other means adopted to give security or preference, constitute necessarily, or even ordinarily, an assignment. But we do hold that, where one or more instruments are executed by a debtor, in whatsoever form or by whatsoever name, with the intention of having them operate as an assignment, and with the intention of granting the property conveyed absolutely to the trustee to raise a fund to pay debts, the transaction constitutes an assignment." The doctrines of that case were affirmed in Fecheimer v. Robertson, 53 Ark. 101, 104, 13 S. W. 423, 424, the court saying: "The confidence of the mortgagors that no surplus would result to them in this case is apparent from the deeds, as also from the testimony. The purpose was to devote the property to the payment of debts. This may be accomplished by either a mortgage or an assignment. The question is, have the grantors, by stipulations in the deeds, or by their agreements and acts, impressed the character of a trust for creditors upon this transaction?" In Robson v. Tomlinson, 54 Ark. 229, 233, 234, 15 S. W. 456, where the question was whether a certain instrument was to be taken as a mortgage given to secure a debt, or a deed of assignment for the benefit of creditors, the court said: "The instrument relied upon by Tomlinson, the interpleader, is in form a mort

gage, and not an assignment for the benefit of creditors. The presumption, until overcome by proof, is that the parties intended it to have the effect the law gives to a mortgage; that is, that it should stand as security for a debt. The fact that it provides that the mortgagor should surrender immediate possession to the trustee for the mortgagee does not convert it into an assignment. To accomplish that result, it must be shown that it was the intention of the parties that the debtor should be divested, not only of his control over the property, but also of his title. Bank v. Crittenden, 66 Iowa, 237, 23 N. W. 646. The equity of redemption may be mortgaged or sold, and so be of value to a debtor who has not the pecuniary ability to redeem; and he has a right to reserve it, in dealing with his creditor, regardless of his solvency. Neither the possession of the goods, nor the unreasonableness of the debtor's expectation of paying the debt at maturity, nor his intent never to pay, is the criterion for distinguishing a mortgage from an assignment. The controlling guide, according to the previous decision of the court, is, was it the intention of the parties, at the time the instrument was executed, to divest the debtor of the title, and so make an appropriation of the property to raise a fund to pay debts? If the equity of redemption remains in the debtor, his title is not divested, and an absolute appropriation of the property is not made. In arriving at the intent of the parties, therefore, the question is, not whether the debtor intended to avail himself of the equity of redemption by payment of the debt, but was it the intention to reserve the equity? If so, the instrument is a mortgage, and not an assignment." See, also, Penzel Co. v. Jett, 54 Ark. 430, 16 S. W. 120.

These cases, as was said in Appolos v. Brady, 4 U. S. App. 209, 1 C. C. A. 299, 301, and 49 Fed. 401, 403, "declare the test to be: Has the party made an absolute appropriation of property as a means for raising a fund to pay debts, without reserving to himself, in good faith, an equity of redemption in the property conveyed?"

Accepting, as we properly may, the law of Arkansas upon the subject of assignments for the benefit of creditors and mortgages given to secure the payment of debts to be as declared by the supreme court of that state, we are of opinion that the instrument executed by Malcolm to Waples, tested alone by its words, is a deed of trust in the nature of a mortgage. It does not make an absolute appropriation of the property for the purpose of creating a fund for the payment of the debts named, but creates a lien to secure those debts, subject to an express reservation by the grantor of a right, within a specified time, to pay the debts, and have possession of such of the property as then remained unsold restored to him. Clearly, this instrument, upon its face, is nothing more than a security for certain debts, an equity of redemption re

maining in the debtor. It did not make an absolute, fixed appropriation of the property for the payment of debts.

An effort was made to show that the parties really intended the instrument to operate as an assignment for the benefit of creditors. Without stopping to consider whether parol proof could be properly admitted for such a purpose, we content ourselves with saying, as did the circuit court of appeals, that the proof wholly fails to show that either of the parties to the instrument intended it to be other than what it purports to be on its face, namely, a mortgage.

It is assigned for error that the trial court refused to submit to the jury certain special questions, framed and presented by the plaintiff after the charge to the jury, and before the argument. This contention rests upon certain provisions of the statutes of Arkansas relating to pleading and practice (chapter 119), which are made part of the law of the Indian Territory by the above act of congress of May 2, 1890, c. 182 (26 Stat. 81, 94). Those provisions are:

"Sec. 5141. A special verdict is that by which, the jury finds the facts only. It must pre3 sent the lacts as established by the evidence, and not the evidence to prove them, and they must be so presented as that nothing remains to the court but to draw from them conclusions of law.

"Sec. 5142. In all actions the jury, in their discretion, may render a general or special verdict, but may be required by the court in any case in which they render a general verdict to find specially upon particular questions of fact to be stated in writing. This special finding is to be recorded with the verdict."

The submission of special questions to the jury is, under the statute, in the discretion of the court. It was so held in Railway Co. v. Pankhurst, 36 Ark. 371, 378. Independently of the statute of Arkansas, this court has held that "the personal conduct and administration of the judge in the discharge of his separate functions was neither practice, pleading, nor a form or mode of proceeding," within the meaning of the practice act of June 1, 1872 (17 Stat. 197), now section 914 of the Revised Statutes, and that "the statute was not intended to fetter the judge in the personal discharge of his accustomed duties, or to trench upon the common-law powers with which in that respect he is clothed." Association v. Barry, 131 U. S. 100, 119, 9 Sup. Ct. 755, 761.

One of the exceptions taken by the plaintiff at the trial was to the action of the court in not permitting Malcolm to state what he said to one Wiswell, within two days after the execution of the instrument in question, as to what he intended that instrument to be, whether a mortgage or a deed of assignment. What the mortgagor said to others, after the execution of the mortgage, and delivery of possession under it, could not affect the rights of the mortgagee. Manufacturing Co. v. Creary, 116 U. S. 161, 165, 6 Sup. Ct. 369, 371.

402

*491

The bill of exceptions contains the following | statement of what occurred in the trial court before the jury retired to consider their verdict: "And after the court had delivered its charge, and plaintiff had saved its exception thereto, as above set forth, the case was argued to the jury by the attorneys of the respective parties, and, when the argument had closed, it being near adjourning hour, it was agreed between the parties in open court that, in case the jury agreed upon a verdict during the recess of court, they might seal their verdict, and give it to their foreman, and report it at the meeting of court to-morrow morning. And at the meeting of court the following morning, being the 24th day of September, 1892, said jury returned into court, and, upon being asked by the court if they had agreed upon a verdict, the foreman of the jury, Oaks, replied: 'We have.' And thereupon Sheimer, one of the jurors, arose and said: 'Your honor, I agreed to a verdict last night, but would like to change my vote, if I can do so.' Whereupon the court replied, "That is a very strange proceeding,' and ordered the jury to return to their jury room; and one of the jurors thereupon arose and said, if he was permitted to introduce evidence, he could prove that Sheimer was not a competent juror. And thereupon A. G. Moseley, counsel for the interpleader, rose and said that we had agreed that the jury might seal their verdict, and report it at the opening of the court this morning, and insisted that the jury should return the verdict they had given their foreman. And thereupon the court ordered the jury to take their seats in the box, and said that he would not permit any such conduct, and ordered the foreman to hand the sealed verdict to the clerk, and the clerk to read it. And after the clerk had read the verdict, plaintiff, by its counsel, requested that the jury be polled, and the court thereupon asked each juror separately if that was his verdict, and each of them answered 'Yes, sir,' with the exception of the juror Sheimer, who replied, in answer to the court's question, 'Is that your verdict?' 'Yes, sir; I suppose so.' Plaintiff, by its counsel, excepted to the action of the court in not permitting the jury to again retire to their jury room to again consider of their verdict, and also to the action of the court in directing the foreman of the jury to hand said sealed verdict to the clerk, and ordering the clerk to read it, and to the entering of said verdict as the verdict of the jury in the case. This exception was taken in open court, before the jury had retired from the bar of the court or from their jury box."

The bill of exceptions brings before the court all the evidence, and it is clear that the trial court could properly have instructed the jury peremptorily to return a verdict for the defendant. Railroad Co. v. Converse, 139 U. S. 469, 472, 11 Sup. Ct. 569, 571; Commissioners v. Beal, 113 U. S. 227, 241, 5 Sup. Ct. 433, 440; North Pennsylvania R. Co. v. Commercial Nat. Bank of Chicago, 123 U. S. 727, v.17s.c.-11

733, 8 Sup. Ct. 266, 269. In this view of the case the circuit court of appeals well said that it was not error for the court to direct one juror to do what it ought to have directed all of them to do.

Other questions are presented by the assignments of error, but it is not necessary to discuss them. None of them furnish a ground for reversal. We perceive no error in the record, and the judgment of the circuit court of appeals is affirmed.

(164 U. S. 471)

NEW ORLEANS WATER WORKS CO. v. CITY OF NEW ORLEANS. (November 30, 1896.)

No. 134.

MUNICIPAL CORPORATIONS ACTION TO CANCEL CITY ORDINANCES-PARTIES INJUNCTION. 1. In a suit by a waterworks company against a city, a decree will not be granted declaring void, and requiring the city to cancel, as in derogation of the rights of the company under its contract with the city, ordinances permitting certain property owners to lay pipes in the streets to convey water to their premises; such owners not being brought before the court, or given an opportunity to be heard.

2. Nor is it ground for granting such a decree that the bringing of separate actions against such property owners to prevent the enforcement of the several ordinances would involve the company in a multiplicity of suits.

3. The passage of ordinances by a city council are legislative acts, which a court of equity will not enjoin.

Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.

J. R. Beckwith, for appellant. S. L. Gilmore and H. J. Leovy, for appellee.

*Mr. Justice HARLAN delivered the opinion of the court.

This suit was determined in the court below upon demurrer to the bill. The question presented is whether the bill set forth a cause of action entitling the appellant, who was the plaintiff below, to the relief asked.

The case made by the bill is substantially as follows: By the fifth section of the act of the general assembly of Louisiana commonly known as "Act No. 33, Extra Session of 1877," it was provided that the New Orleans Water Works Company, in its corporate capacity, should own and possess the privileges acquired by the city of New Orleans from the Commercial Bank; that it should have, for 50 years from the passage of the act, the exclusive privilege of supplying the city of New Orleans and its inhabitants with water from the Mississippi river, or any other stream or river, by means of pipes and conduits, and for erecting or constructing any necessary works or engines or machines for that purpose; that it might contract for, purchase, or lease any land or lots of ground, or the right to pass over and enter the same from time to time, as occasion required,

through which it might be necessary to convey the water into said city, or to distribute the same to the inhabitants of said city, and construct, dig, or cause to be opened any canals or trenches whatsoever for the conducting of the water of the rivers from any place or places it deemed fit, and raise and construct such dykes, mounds, reservoirs as might be required for securing and carrying a fully supply of pure water to the city and its inhabitants; enter upon and survey such lands as it might think proper, in order to ascertain the best mode of furnishing a supply of water; and lay and place any number of conduits or pipes or aqueducts, and cleanse and repair the same, through or over any of the lands or streets of the city, provided the same should not be an obstruction to commerce or free circulation.

The eighteenth section of the same act provided: "That nothing in this act shall be so construed as to prevent the city council from grauting to any person or persons, contiguous to the river, the privilege of laying pipes to the river exclusively for his own or their own use."

While the New Orleans Water Works Company was proceeding under the above legislative enactment constituting its charter, the Louisiana constitution of 1879 was adopted. By article 258 of that constitution it was provided: "All rights, actions, prosecutions, claims and contracts, as well of individuals as of bodies corporate, and all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the said constitution had not been adopted. But the monopoly features in the charter of any corporation now existing in the state, save such as may be contained in the charters of railroad companies, are hereby repealed."

After this constitutional provision took effect, the city council of New Orleans passed, November 15, 1882, an ordinance allowing Robert E. Rivers, the lessee of the St. Charles Hotel in New Orleans, "the right of way and privilege to lay a water pipe from the Mississippi river, at any point opposite the head of Common or Gravier streets, through either of these streets to said hotel, its front and side streets, with all needed attachments and appurtenances, and to distribute said water through said hotel as said Rivers, or lessee, may desire from said pipes," etc.

Rivers being about to take the benefit of this ordinance, the waterworks company commenced suit against him in the circuit court of the United States for the Eastern district of Louisiana, in which it sought a decree perpetually restraining him from laying pipes, conduits, or mains in the public streets of New Orleans for the purpose of conveying water from the Mississippi river to his hotel. The company proceeded in that suit upon the ground that it had a valid contract with the state and city for an exclu

sive right for the full term of 50 years from March 31, 1877, of supplying the city of New Orleans and its inhabitants, other than those contiguous to the Mississippi river, with water from that stream by means of pipes and conduits placed in the streets of that city, and that the obligation of that contract was protected by the constitution of the United States against impairment by any act of the state. Rivers claimed the right to proceed with the construction of pipes, mains, and conduits under the authority of the ordinance above referred to, which rested for its validity, as he claimed, upon the constitution and laws of Louisiana.

The bill filed by the waterworks company against Rivers was dismissed in the circuit court, and upon appeal to this court the judgment of dismissal was reversed, with the direction to enter a decree perpetually restraining Rivers, as prayed for in the bill filed by the waterworks company. The opinion in Waterworks Co. v. Rivers, 115 U. S. 674, 6 Sup. Ct. 273, states fully the grounds upon which this court proceeded.

In 1882 the St. Tammany Waterworks Company was organized under the general laws of Louisiana for the purpose of furnishing and supplying the inhabitants of the city of New Orleans and other localities contiguous to the line of its works with an ample supply of clear and wholesome water from such rivers, streams, and other fountain sources as might be found most available for such purpose, by means of pipes and conduits. The company being about to take steps to obtain authority for bringing into New Orleans the waters of the Bogue Falaya river, in the parish of St. Tammany, and distributing the same by means of pipes, mains, and conduits placed in the streets of the city parallel with those constructed by the New Orleans Waterworks Company, the latter corporation instituted, in the circuit court of the United States for the Eastern district of Louisiana, a suit for an injunction to restrain the other company from carrying out its scheme. On appeal from the decree of the circuit court granting the injunction, this court reaffirmed the principles announced in the Rivers Case, saying: "As the exclusive right of the appellee to supply the city of New Orleans and its inhabitants with water was not restricted to water drawn from the Mississippi river, but embraced water from any other stream, it is impossible to distinguish this case in principle from that of Waterworks Co. v. Rivers. Upon the authority of the latter case it must be held that the carrying out by the appellant of its scheme for a system of waterworks in New Orleans would be in violation of the rights of the appellee, and that the state constitution of 1879, so far as it assumes to withdraw the exclusive privileges granted to the appellee, is inconsistent with the clause of the national constitution forbidding a state from passing any law impairing the