
    Freeman et al. v. Clay et al.
    
    
      (Circuit Court of Appeals, Fifth Circuit.
    
    June 12, 1892.)
    No. 13.
    1. Res Judicata—Injunction—Appeal.
    Both members of a partnership .being dead, the widow of the partner who first died had set off to her a dower interest in the partnership lands, and afterwards sued the heir at law of the other partner to recover back rents on her dower interest. The heir at law thereupon brought a bill to enjoin this suit and for an accounting of the partnership affairs, which bill was dismissed on demurrer. The heir at law appealed to the supreme court, notwithstanding which the widow prosecuted her suit for rents to a final decree, and the same was paid by the heir at law without compulsory process. Thereafter the supreme court reversed the decree appealed from, holding that the widow was not entitled to the rents, and remanded the case for further proceedings. Held, that neither the decree in the widow’s suit for rents nor the fact of its voluntary payment was a bar to the heir at law’s right under her bill to an accounting of the rents thus paid.
    2. Same.
    Nor was her right affected by the fact that, before sustaining the demurrers and dismissing the bill for injunction and accounting, the trial court offered to retain the same for the purpose of an accounting, which offer was declined by the heir at law.
    3. Bill op Review—Want op Equity.
    A bill to review a decree rendered in the heir at law’s suit¡ which, among other things, ordered the restoration of the rents collected in the widow’s suit, was without equity, since the debts of the partnership were entitled to precedence over the widow’s dower right in the partnership property, and since, therefore, the widow had obtained, as a result of the prior proceedings, a sum of money which in equity and good conscience she was not entitled to retain.
    4. Same—Citation on Appeal—Service.
    An allegation in the bill of review that the widow was not a party to the appeal to the supreme court, because no citation was ever served upon her or any agent or attorney of hers, was immaterial, it appearing from the record that this fact was not alleged in the pleadings filed by her in the main case after the cause was remanded, and that the citation was in fact served upon her attorney of record in that case.
    Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Mississippi.
    
      In Equity. Bill of review brought by Lucy C. Freeman and C. L. Freeman, her husband, citizens of the state of Missouri, against Pattie A. Clay and Brutus J. Clay, her husband, for alleged errors appearing on the face of a decree rendered against complainants under an original bill brought against them by defendants for injunction and an accounting. A demurrer to the bill of review was sustained, and the bill dismissed. Complainants appealed. On motion an order was made dismissing the appeal, unless, a perfected appeal bond should be filed before a given day. See 48 Fed. Rep. 849, 1 C. C. A. 115. The question is now on the merits. Affirmed.
    For opinions rendered in the course of the litigation resulting in the decree sought to be reviewed, see 34 Fed. Rep. 375, 6 Sup. Ct. Rep. 964, and 11 Sup. Ct. Rep. 419.
    Statement by Pardee, Circuit Judge:
    The appeal in this case is from a decree in the court below sustaining a demurrer to a bill of review. In 1859, David I. Field and Christopher I. Field were partners in planting, and owned a plantation in Bolivar county, Miss.-, as tenants in common, and also slaves and other personal property. David I. Field died in that year, leaving appellant Lucy C. Freeman, his widow, and David I. Field, his only child and heir at law. Christopher I. Field, the surviving partner, remained in the possession of all the partnership property until his death, in the year 1867, when his administrator continued the possession. In 1869 the half interest of David I. Field was sold, under a decree of the probate court of Bolivar county for one half of a debt due by the partnership to Christopher I. Field’s estate, and Mrs. Pattie A. Clay, the daughter and heir at law of Christopher I. Field, became the purchaser. Said decree and sale, were void, and no title passed thereby, but Mrs. Pattie A. Clay received a deed thereunder, and entered into possession. In 1879, Mrs. Lucy A. Freeman, by proceedings in the state court, had her dower of one third in the one-half interest of her deceased husband, David I. Field, in the said plantation set off to her, and in September, 1880, she filed a bill in equity in the chancery court of Bolivar county against the said Mrs. Pattie A. Clay for an account for back rents on her dower interest, which cause was afterwards removed to the United States circuit court for the western division of the northern district of Mississippi. In November of 1880, David I. Field, Jr., brought an ejectment suit in the United States court for the western division of the northern district of Mississippi, as heir at law of David I. Field, deceased, to recover his half interest in the said plantation, and also for back rents. Both the said suits were pending when Mrs. Pattie A. Clay and Brutus J. Clay, appellees herein, filed their bill on the equity side of the said court to enjoin both proceedings, to charge the said plantation with a large debt due by the partnership of David I. & Christopher I. Field, and for an accounting with Mrs. Lucy C. Freeman, widow of David I. Field, and her son David I. Field, Jr., touching the partnership affairs. To this bill demurrers were filed by both Mrs. Freeman and David I. Field, Jr. After hearing upon the demurrers, the court rendered a decree partly sustaining and partly overruling the same, and ordering a reference to take an account between the parties; but afterwards, on the 6th of March, 1884, the following decree was rendered in the case:
    “Be it remembered that this day came on to be heard the above-entitled cause, and the parties appearing in open court by consent, the account herein filed by the master is withdrawn, and the decree of reference hereinbefore rendered is set aside; and counsel for complainants declining to avail himself of the offer of the court to retain the bill for the purpose of stating an account, it is ordered, adjudged, and decreed that said bill be and the same is hereby dismissed, and that the complainants pay the cost, for which let execution issue; and thereupon complainants prayed an appeal to the supreme court of the United States, which is granted upon their entering into a bond in the penalty of one thousand dollars, with two securities, conditioned according to law. ”
    On the 25th of July following said decree, bond was given, and approved by the presiding judge of the court, and thereupon a citation was issued directed to Lucy G. Freeman and David I. Field, appellees, which on the 31st day of July, 1884, was served by handing the same to Frank Johnston, Esq., as attorney of record of the within named appellees. In regard to this the bill of review alleges:
    “That said citation, while directed to your oratrix, was never served upon her, or on any agent or attorney of hers; so that your oratrix avers that she was never before the supreme court on said appeal, and that any judgment of the court in the premises was, as to her, coram, nonjudice, and void.”
    Said appeal was prosecuted, and was decided by the supreme court of the United States April 26, 1886, (118 U. S. 97, 6 Sup. Ct. Rep. 964,) and the report shews that in said case Mr. Frank Johnston and Mr. J. E. McKeighan appeared for appellees. And it may be noticed in this connection that Mr. Frank Johnston appears in this court as the solicitor of Mrs. Freeman. The supreme court in passing on the case said:
    “It results from these views that the lien for partnership debts takes precedence not only of the interest of David I. Field, Jr., as heir at law of David I. Field, but of Lucy G. Freeman’s right of dower. As, however, dower was actually assigned to her nearly three years before the filing of the present bill, such assignment should not now be disturbed; but no further exaction for detention of dower should be enforced. We think, therefore, that, upon the allegations of the bill, the complainants are entitled to relief, and that the demurrers should have been overruled.”
    And the decree of the circuit court was reversed, and the cause remanded, with instructions to overrule the demurrers, and to proceed in the case according to law and the principles announced in that opinion. Pending the appeal aforesaid, on the 14th of June, 1884, Mrs. Freeman pushed her cause for back rents on the dower estate to a decree, and recovered |2,215, and costs. The amount of this decree Mrs. Pattie A. Clay paid in full. On return of the mandate of the supreme court a decree was rendered in the case of Pattie A. Clay et al. v. Lucy C. Freeman et al., overruling the demurrer of the defendants to complainants’ bill, and issuing an injunction ~estraimng David I. Field, Jr., from the further prosecution of his ejectment suit against the complainants, and from suing out final process for the enforcement of a judgment for rent obtained therein; and upon the same day complainants were granted leave to file a supplemental bill “setting up the result of the cause of Lucy C. Freeman against them for arrearages of rent, and such facts in connection therewith as they may desire, and praying such relief touching the same as they may be advised.”
    The supplemental bill filed alleged as follows.
    “(1) After, notwithstanding the filing of the bill in this cause, the defendant L. C. Freeman prosecuted her suit in this court against your orators for arrearages in rent upon and for her dower interest in the Content plantation, as shown in the pleadings, and on the 12th day of June, 1884, A. D., after her demurrer and exception to your orators’ original bill had'been sustained, recovered a final decree against your orator Pattie A. Clay for three thousand and ninety-two and thirty-four one-hundredths dollars, and costs. On the 14th day of June, 1884, on motion, this judgment or decree was reduced to two thousand two hundred and fifteen one-hundredths dollars, the same, with the costs in the cause, one hundred and sixty-two dollars, your orators well and truly paid, and so performed the said payment and. decree of the said district court, from which there was no appeal, as, by the record of said cause, doth appear. (2) That said recovery and payment was not according to right and justice, as appears from the opinion of the supreme court of the United States on your orators’ appeal to the above decree of this court in this cause, and the said Lucy C. Freeman ought in this cause to be decreed and adjudged to restore the said sum and costs to your orators, or be compelled to accept it as a charge against her in any accounting hereafter to be had in the cause. The premises considered, your orators pray as prayed in the original bill, and that the said Lucy C. Freeman be adjudged to restore to them the money so wrongfully secured by her in the Said cause, and for general relief. ”
    'Mrs. Lucy C. Freeman thereafter filed her answer to the original bill, and as to the supplemental bill she answered as follows:
    “As to said supplemental bill she says that on the 30th day of September, 1880, yonr respondent filed against the complainant her original bill of complaint in the chancery court of Bolivar county, Miss., demanding of complainant rents for the dower of respondent in lands of her former husband, David I. Field, deceased, and which complainant had wrongfully withheld from her. Said cause was removed to this court, and on the 10th day of August, 1882, the complainant filed against respondent this, her original bill in this cause, under which respondent was enjoined from prosecuting her suit aforesaid. That afterwards, on the 6th day of March, 1884, after demurrer to the original bill herein, said demurrer having been sustained by this court, said injunction was dissolved, and the bill dismissed. In making said decrees of dissolution and dismissal, the court offered to retain the bill for the purpose of stating the account between the complainant and respondent; yet complainant, well knowing that she could appeal this cause to the supreme court of the United States, and could not appeal the other if it should result in a decree for less than $5,000.00, deliberately elected not to have said bill so retained, and thereby consented to its dismissal in so far as this account is concerned. Thereupon your respondent proceeded with her cause, as she had a right to do, and said cause resulted, on the 16th day of June, 1884, as is stated in said supplemental bill, in a decree in favor of your respondent against the complainant for the sum of $2,215.00, not the sum of $2,200.15 dollars, as wrongfully stated therein. This sum of $2,215.00, and the costs, as stated, the complainant (that is to say, the respondent in that cause) voluntarily paid to this respondent, without legal process, on the-day of July, 1884; so that your respondent says that the said decree is in full force and effect, unappealed from, unreversed, without any bill of review or petition for rehearing, except that it wqs voluntarily paid in full, and settled. The matter is res adjudicata, and cannot be reopened, and this court will not do obliquely for the complainant what it could not do directly. It would be to affect respondent, and hold her chargeable, even to the extent of setting aside and annulling after two years a solemn and final decree of this court, merely on the ground of error, by an appeal to which she was no party, since the complainant by her course aforesaid induced her to believe that the whole matter was settled and finished, so far as she was concerned. And respondent submits, as a matter of law, whether a matter purely personal to herself and the complainant can be introduced into the accounting of the partnership matters between O. I. Field and D. I. Field, and on this point prays that this answer be taken as a demurrer to the said supplemental bill.”
    On the 19th of November, 1886, it was ordered that—
    “This cause be set down for hearing on the plea of Lucy C. Freeman to the supplemental bill of complaint filed October 4, 1886, as to its sufficiency in law.”
    Afterwards, on the 11th of January, 1888, the following agreement of record was made:
    “In this cause the complainant, having set the ‘ answer’ of Lucy 0. Freeman to the supplemental bill down for sufficiency on the idea that it was a plea, it is now agreed, to avoid delay, that the said answer may be taken as such, and considered as if excepted to, and the exceptions of complainant thereto and the demurrer filed to the said supplemental bill be considered and determined by the court, and, if said exceptions and demurrer be overruled, that the cause may be disposed of finally, the complainant being allowed to file exceptions to said answer nunc pro tuno. It is further agreed that, if said demurrer be sustained, the proper order may be made dismissing the said supplemental bill, with or without prejudice, as the court may determine.”
    A great deal of testimony was taken and filed in said cause; and on the 1st day of June, 1888, an order of reference was made in said cause in and by which an account was directed of the partnership affairs aforesaid, and certain directions, not necessary to set forth here, given to the master. Said order, among other things, provides that—
    “All other matters arising in the cause as to the claim of the complainant against the defendant Lucy 0. Freeman, growing out of the payment to her by the complainant of the amount of a decree heretofore rendered in her favor by this court, and the disposition to be made of the rental accruing on the dower interest of the said Lucy C. Freeman since her occupation of said plantation, and otherwise arising in the cause, are reserved to the final hearing; but in taking the account the commissioner will ascertain and report to the court the rental value of the dower in the said plantation occupied by the said Lucy 0. Freeman from the time she was let into possession, and the arrearages of rental asserted by her, and for which a recovery was heretofore had; and in making his report to the court he will ascertain the amount of rent duly chargeable against the complainant for the use of the entire plantation, as well as the amount due on account of the rental value of the dower allotted to the said Lucy G. Freeman, to the end that the court, by a proper decree in the premises, may dispose of the whole controversy,” etc.
    
      And afterwards, on the 1st day of August, 1889, the master’s report was filed. In and by said report it appeared that there was due to the said firm of D. I. Field & Coi, by Christopher I. Field, on the 1st day of January, 1880, after satisfying all demands of said Christopher against said firm, the sum of $2,396:26, and on the 1st oí January, 1889, exclusive of the dower interest of Mrs. Freeman, the sum of $11,771.94; that three fifths of the last-named sum was the property of the said Pat-tie A. Clay as the heir at law of said Christopher; and that the said Christopher was entitled to allowance, as against said balance, of three or four small items of disbursement for the benefit of David’s estate, not necessary to set forth here, with interest thereon. On such basis, the master then stated the account between Mrs. Lucy C. Freeman and Pat-tie A. Clay, representative of C. I. Field, as follows:
    1889. Mrs. Lucy 0. Freeman in account with. C. I. Field. Dr. Cr.
    Jan 1. To money paid her in 1861................................... $ 200 00
    To interest on same at 6%, 25 years......................... 300 00
    To dower collected in 1884................................. 2,387 58
    To interest on dower 6 years at 6$.......................... 859 53
    By balance due C. I. Field............................ $3,747 11
    Certain objections were made to said report, among others that the master had failed to credit Mrs. Freeman with her one-sixth part of the said sum of $2,396.26, found to be due on the 1st day of January, 1880, as aforesaid; and this objection was allowed by the court. Whereupon said account was so far modified as to reduce the same by said allowance, together with some others not material here, to the sum total of $2,667.28. Thereupon the court, on the 15th day of August, 1889, rendered a final decree in said cause, in and by which, among other things, it was ordered and adjudged that the complainant, Pattie A. Clay, recover of Mrs. Lucy C. Freeman the said sum of $2,667.28, with interest thereon from the 1st day of January, 1889, at the rate of 6 per cent, per annum, for which execution may issue to be levied; and part of the costs of said cause were also adjudged against Mrs. Freeman. From the said decree of 15th of August, 1889, all of the parties prayed an appeal to the supreme court of the United States; but that tribunal, on the 2d day of March, 1891, '(11 Sup. Ct. Rep. 419,) dismissed the appeal of Lucy C. Freeman on the ground that the amount in controversy was not sufficiently large to give that court jurisdiction.
    The bill of review brings the entire record of the cause before the court, and prays that on the final hearing the court will order and adjudge that the decrees herein rendered against Mrs. Freeman on the 15th day of August, 1889, be credited with the said amount of $2,387.58, with interest thereon at 6 per cent, per annum from the date from which the master computed interest on the same in said account, being the amount improperly and erroneously charged against her, since it was paid to her under said decree of 14th June, 1884, and cannot be recovered in this collateral and indirect manner. A demurrer was filed to the said bill of review, and for causes of demurrer are assigned the following:
    
      “(1) There is no equity on the face of the bill. (2) There is not shown to be any error in the record of, and proceedings had in, the principal ease. (3) The complainants have not performed or tendered performance of the decree complained of. (4) And for other causes to be assigned at the hearing.”
    The court below sustained the said demurrer, and dismissed the said bill of review, whereupon the complainants prosecute this appeal.
    
      Edward Mayes and Frank Johnston, for appellants.
    
      William L. Nugent, for appellees.
    Before Pardee and McCormick, Circuit Judges, and Locke, District Judge.
   Pardee, Circuit Judge,

(after stating the facts.) The bill of review in this case is brought for alleged error of law appearing on the face of the decree. To sustain the bill—

“The decree complained of must be contrary to some statutory enactment, or some principle or rule of law or equity recognized or acknowledged, or settled by decision, or be at variance with the forms or practice of the court; but the bill cannot be maintained where the error is in mere matter of form, or the propriety of the decree is questioned.” Daniell, Ch. Pr. § 1576.

“In regard to errors of law apparent upon the face of the decree, the established doctrine is tiiat you cannot look into the evidence of the case in order to show the decree to be erroneous in its statement of the facts. But taking the facts to be as they are stated to be on the face of the decree, you must show that the court has erred in point of law. * * * In the courts of theUnited States the decree usually contains a mere reference to the antecedent proceedings without embodying them. But for the purpose of examining all errors of law, the bill, answers, and other proceedings are, in our practice, as much a part of the record before the court as the decree itself; for it is only by a comparison with the former that the correctness of the latter can be ascertained.” Story, Eq. Pl. 407.

These propositions are well settled. Whiting v. Bank, 13 Pet. 6; Putnam v. Day, 22 Wall. 60; Buffington v. Harvey, 95 U. S. 99; Thompson v. Maxwell, Id. 397; Beard v. Burts, Id. 434; Shelton v. Van Kleeck, 106 U. S. 532, 1 Sup. Ct. Rep. 491; Bridge Co. v. Hatch, 125 U. S. 7, 8 Sup. Ct. Rep. 811.

In the present case the error alleged as apparent upon the face of the decree in the principal suit is the failure of the court to give due effect to an alleged plea of res adjudicata contained in the answer of Mrs. Freeman to the supplemental bill. Said answer also contained a demurrer to the supplemental bill on the ground that the collection by Mrs. Freeman from the complainant of rents of her dower estate was a matter purely personal to herself and the complainant, and could not be introduced into an accounting of the partnership matters between G. I. Field and D. I. Field. The answer of Mrs. Freeman was treated by the complainants as a plea, and was duly set down for sufficiency. About 18 months thereafter, as appears by the record, counsel, to avoid delay, agreed that the said answer was to be taken as such, and considered as if excepted to; the agreement providing that if the exceptions of complainant thereto and the demurrer filed to the supplemental bill should be overruled, the case might be disposed of finally, complainants being allowed to file exceptions to said answer nunc pro tunc. And, on the other hand, it was agreed that, if the demurrer should be sustained, the proper order-should be made dismissing the supplemental bill, with or without prejudice, as the court should determine. After the said agreement no further notice of the said supplemental bill and answer thereto seems to have been taken by either the parties or the court until the decree of June 1,1888, referring the cause to a master to take an account, in which decree it was provided as follows:

“All other matters arising in the case as to the claim of complainant against the defendant Lucy C. Freeman, growing out of the payment to her by the complainant of the amount of the decree heretofore rendered in her favor by this court, and the disposition to be made of the rental accruing on the dower interest of the said Lucy C. Freeman since her occupation of the said plantation, and otherwise arising in the cause, are reserved to the final hearing; but in taking the account the commissioner will ascertain and report to the court the rental value of the dower in said plantation occupied by the said Lucy C. Freeman from the time she was let into possession, and the arrearages of rental asserted by her, and for which a recovery was heretofore had; and in making his report to the court, he will ascertain the amount of rent duly chargeable against the complainant for the use of the entire plantation, as well as the amount due on account of the rental value of the dower allotted to the said Lucy 0. Freeman, to the end that the court by a proper decree in the premises may dispose of the whole controversy.”

this interlocutory decree no exceptions were taken. In reporting to the court, the master charged Mrs. Freeman with the amount collected from Mrs. Clay, in 1884, as rents of the dower estate, with interest thereon to January 1, 1889, which amount was afterwards made the basis of the decree rendered against Mrs. Freeman in the principal suit.

It is to be noticed that, although Mrs. Freeman filed other exceptions to the master’s report, she made no exception to the master’s report holding her to account for the amount of the decree collected by her from Mrs. Clay.

The supplemental bill of complainants sets forth the prosecution of the suit by Mrs. Freeman for rent of dower estate, pending the appeal in the main case to the supreme court, the recovery of a decree therein, and the payment by the complainants of the amount of the decree, and its prayer was for the restitution of the money so alleged to have been wrongfully collected in said case. Mrs. Freeman’s answer to the supplemental bill sets forth the same state of facts, averring, in addition thereto, the single fact, apparent upon the face of the record in the main case, that the court, in passing upon the demurrers in the main case, had offered to retain the bill for the purpose of stating the account between the complainant and respondent, and that the complainant had deliberately elected not to have said bill so retained; thereby, it is alleged, consenting to its dismissal, so far as an account with Mrs. Freeman was concerned. It seems clear, therefore, that the said supplemental bill and the answer thereto raised no issue of fact between the complainant and defendant. Th'e issue was one solely of law, and that was as to the effect to be given to the enforced payment of the rents of the dower estate, pending the appeal of the main case. The court apparently disposed of this branch of the case on the supplemental bill and answer thereto, disregarding exceptions and demurrer, and the conclusion, as expressed in the decree of the court, was to the effect that those rents were unjustly collected, and should be returned by Mrs. Freeman, Was this conclusion an error of law? Complainants’ original bill was for the express purpose of enjoining a further prosecution of Mrs. Freeman’s suit against Mrs. Clay for the collection of rents of the dower estate, as well as for enjoining the further prosecution of the ejectment suit brought by David I. Field, Jr., as heir at law for one half of the Content plantation, until an account and settlement could be made of the partnership debts due by David I. Field & Co. to the estate of Christopher I. Field. The court sustained the demurrers of both Mrs. Freeman and David I. Field, Jr., to the said bill, and dismissed the suit, and an appeal was allowed in open court from such decree. It seems to be of little moment that the court offered to the complainants some other decree, which was refused. The decree that was rendered was one sustaining the demurrers and dismissing the bill.

The record shows that an appeal was prayed for and allowed in open court, and that said appeal was afterwards perfected in vacation by giving the required bond, and by issuing citation directed to both parties, which citation appears, by the record, to have been served upon Frank Johnston, Esq., as attorney of record of the appellees, Lucy C. Freeman and David I. Field, Jr. By the record, then, Mrs. Freeman was a party to the appeal, and the question of law raised by the supplemental bill and answer was this: Where, pending the appeal to the supreme court from a decree dismissing the bill brought to enjoin the prosecution of Mrs. Freeman’s suit to recover rent of the dower estate and for an accounting, Mrs. Freeman had nevertheless prosecuted her suit for rent to final decree, and collected the same, whether the decree so obtained shall be considered as conclusive of the rights of the parties in the further prosecution of the suit for an accounting after the supreme court has reversed the decree dismissing the bill, and remanded the cause to be further proceeded with according to law. It is true that in the bill of review Mrs. Freeman alleges that she was not a party to the appeal in the main case, because, she says, no citation was ever served upon her, or upon any agent or attorney of hers; and that she never made any appearance in the supreme court. She failed, however, to assert such fact in her answer to the supplemental bill, or in any other pleading filed by her, in the main case; and, as said above, she made no exception whatever to the interlocutory decree directing the master to report with regard to the rents of the dower estate, nor to that part of the master’s report which charges her with the rents collected pending the appeal. It may be further noticed that the suit of Mrs. Clay against Mrs. Freeman and David I. Field, Jr., was mainly directed to an accounting of the rents of the partnership property, which included the dower estate claimed by Mrs. Freeman; and it would seem that in such an accounting, where each party was required to account for the rents collected, it would make but little difference whether the rents received were collected voluntarily or by process of law.

It would seem, therefore, that the court was right in assuming that Mrs. Freeman was a party to the appeal, and in concluding that the decree she obtained against Mrs. Clay, pending such appeal, for rents of the dower estate, was not conclusive of the rights of the parties. It also seems to us from an inspection of the record that this bill of review is without equity. On the facts stated in the original bill, filed in 1882 by Mrs. Clay and Brutus J. Clay against Mrs. Freeman and D. I. Field, Jr., it is clear that neither D. I. Field, Jr., as heir at law, nor Mrs. Lucy C. Freeman, as the widow of David I. Field, Sr., was entitled to any rents of the partnership plantation and property until after the partnership debts due Christopher I. Field were paid and settled. This was the decision of the supreme court in the case as reported in 118 U. S. 97, 6 Sup. Ct. Hep. 964. Conceding the contention of Mrs. Freeman that she was no party to that suit on appeal, the law of the case is nevertheless good as a finding by the supreme court of the United States upon a given state of facts. As Mrs. Freeman was not entitled to collect rents of her dower estate prior to the payment of the partnership debts, it follows that the decree she obtained pending the proceedings on appeal, and the money she recovered thereunder, were inequitably recovered. In short, the record shows that, in the proceedings that have been pending for some years between the heirs of Christopher I. Field, on the one side, and the widow and heirs of David I. Field, on the other, Mrs. Freeman has obtained from Mrs. Clay the sum of $2,215, which she had no right to, and which she, contrary to equity and good conscience, retains. The decree of the circuit court is affirmed, with costs.  