of redemption in determining solvency at the date of each such conveyance. We know of no authority which will justify the exclusion of equitable interests belonging to a debtor when we come to the question of his solvency or insolvency in a bankrupt proceeding. The only exclusion authorized by section 1, cl. 15, is of property "which he may have conveyed, transferred, concealed or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay his creditors." If, then, these conveyances were found not to be such as described by this provision, and therefore not acts of bankruptcy under subdivision 1 of section 3, the grantor's equity of redemption constituted a part of his property and should be estimated as its "fair value" in the aggregate of his property at the time of each said conveyance attached as a preference. The thirty-sixth exception to the charge was to this language of the

court:

"The testimony of Mr. Meier is that these conveyances, although in the form of warranty deeds, were intended by way of security, and there is no testimony to the contrary except the deeds themselves."

But in assigning error they have included in one assignment (assignment No. 7) this and so much of the charge as dealt with the question of estimating the value of the defendant's equity of redemption in determining solvency or insolvency at date of the conveyance. The eleventh rule (90 Fed. cxlvi, 31 C. C. A. cxlvi) of this court requires that each error intended to be assigned shall be separately and particularly set out, and, when it is to the charge, the assignment shall set out the part referred to totidem verbis. We have already ruled that this assignment, so far as it covers the question last alluded to, is not well taken. We cannot sustain a single assignment as partly good and partly bad without violating our rules. But, aside from this, the court was substantially right in saying that the testimony of Meier upon this point was uncontradicted. When the court undertook to state the evidence, it was the duty of counsel to call attention to evidence overlooked, if important, and give the court an opportunity of correcting the statement. This was not done. We see no sufficient reason for noticing this as "a plain error not assigned," which under strong circumstances the court at its option may do under

Rule 11.

All of the errors assigned have been examined. are well taken, and the judgment will be affirmed.

None of them

BOARD OF COM'RS OF HERTFORD COUNTY, N. C., v. TOME et al. (Circuit Court of Appeals, Fourth Circuit. April 9, 1907.)

No. 683.

1. JUDGMENT-CONSTRUCTION-ENFORCEMENT.

Where judgments rendered on certain railroad aid bonds issued by a township contained orders making it the duty of the county commissioners of the county in which the township was located to annually levy å necessary tax to make the annual interest payments on the bonds, but 153 F.-6

such judgments did not direct the clerk to thereafter issue writs of mandamus if defaults should occur in the levy of the tax, they did not contain process within themselves for their own enforcement, so that, on the board's default, it was necessary for the owner of the judgments to obtain orders of the court to compel performance.

2. SAME ESTOPPEL.

Where judgments on certain township railroad aid bonds had become dormant by the lapse of three years, without process to enforce the same, and therefore required an order of court entered on notice to revive the judgments and authorize enforcement by mandamus, as provided by Revisal, N. C. 1905, § 620, the defendants on such an application were not estopped by the judgments to question the validity of the act under which the bonds were issued.

3. COURTS-FEDERAL COURTS-FOLLOWING STATE DECISION-OBLIGATION OF

CONTRACT-IMPAIRMENT.

Where certain township railroad aid bonds were issued under a state statute, and passed into the hands of non-resident holders for value at a time when the highest court of the state had rendered no decision intimating that a provision of the Constitution of the state would be subsequently so construed as to invalidate the bond act, the federal courts sitting within such state were not bound by such a decision holding that the bond act was illegally passed, the effect of which was to impair the obligation of the contract existing between the township and the bondholders.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Courts, §§ 950, 957.

Conclusiveness of judgment between federal and state courts, see note to Kansas City, Ft. S. & M. R. Co. v. Morgan, 21 C. C. A. 478; Union & Planters' Bank of Memphis v. City of Memphis, 49 C. C. A. 468.]

In Error to the Circuit Court of the United States for the Eastern District of North Carolina, at Raleigh.

James H. Shepherd (Shepherd & Shepherd and Winborne & Lawrence, on the brief), for plaintiff in error.

F. H. Busbee (F. H. Busbee & Son, R. T. Gray, P. E. Tome, and E. J. Best, on the briefs), for defendants in error.

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

MCDOWELL, District Judge. By act of the Legislature of North Carolina (chapter 365, p. 640, Acts 1887) the Murfreesboro Railroad Company was incorporated and Murfreesboro township of Hertford county, which was by section 30 of the act created a "body politic and corporate" (the county commissioners being by said section made the corporate agents of the township), was authorized to subscribe to the stock of the said railroad company and to issue bonds in the payment of the subscription. This statute, so far as is now material, does not differ essentially from the statute under consideration by this court in Board of Com'rs v. Tollman, 145 Fed. 753, 76 C. C. A. 317. An election was held under the act of 1887, and the subscription was authorized. In 1888 the bonds, which are dated September 19, 1887, were issued to the railroad company. The bonds are each for $1,000, numbered consecutively from 1 to 25. The first bond is made to become due ten years after February 1, 1888, and each successive bond one year later. On each bond were coupons, for $60 each, payable annually.

On August 5, 1891, Jacob Tome became the purchaser of all the bonds and of all the coupons not then due. The coupons falling due February 1, 1892 and 1893, were not paid. In November, 1893, the said Tome instituted an action in the United States Circuit Court for the Eastern District of North Carolina. To this action the only defendant named is the township of Murfreesboro. The relief sought was judgment that the plaintiff recover of the township the amount of the said coupons with interest and costs, and that the board of commissioners of Hertford county be required by mandamus to levy taxes and pay the said coupons, and also to thereafter annually levy such taxes and pay the coupons subsequently to become due. On May 3, 1894, the township appeared by counsel and answered the complaint. On November 29, 1895, the township filed a second answer, in which the defendant pleaded the fact that by chapter 23, p. 31, Private Acts 1895, the Legislature of North Carolina had “abolished the charter of the defendant." Somewhat later the complainant appears to have filed an amended complaint, which does not appear in the record, making the board of commissioners of Hertford county also a defendant. An answer to this amended complaint was filed December 18, 1896. It should here be stated that the act of 1895 referred to repealed the essential sections of chapter 365, p. 640, Acts 1887-including section 30, which made the board of commissioners. the corporate agents of the township. The result of this action was a judgment in 1897 in accordance with the prayer of the original complaint. In 1898 the executors, under the will of said Jacob Tome, instituted another action in the said court on account of the subsequent default in payment of coupons, in which the township and the board of commissioners and the individuals constituting such board were made the parties defendant. On this complaint an order similar to the one above mentioned was made December 21, 1898. Commencing in 1898, and continuing until late in 1902, some considerable payments were made on the coupons. On December 20, 1902, the opinion of the Supreme Court of North Carolina in Debnam v. Chitty, 131 N. C. 657, 43 S. E. 3, was announced. In this opinion chapter 365, p. 640, Acts 1887, was held to have been invalidly enacted. Since the publication of that opinion the executors appear to have been unable to obtain further payments on their coupons. In May, 1905, the affidavit of one of the said executors setting out the fact that the two former judgments had been rendered, and that the then overdue coupons had not been fully paid, was filed in the aforesaid trial court. Thereupon the said court issued a rule to show cause why a peremptory writ of mandamus should not issue. The said affidavit and the said rule are both entitled, "Executors of Jacob Tome, Dec'd, v. Murfreesboro Township." The rule appears to have been served only upon the board of commissioners. An answer was filed to the rule on June 5, 1905, by the board of commissioners "appearing specially." The lower court on January 10, 1906, entered an order reviving the above-mentioned judgments of 1897 and 1898, and ordering the issue of a writ of peremptory mandamus directed to the board of commissioners, and in other respects following the judgments and

orders previously made by said court. The mandamus ordered by the judgment of January 10, 1906, was issued May 7, 1906. Thereafter an assignment of errors was filed in behalf of the township, a bill of exceptions was settled and signed, and a writ of error was allowed. On November 21, 1906, the Supreme Court of North Carolina handed down its opinion in Board v. Wachovia Loan & Trust Co., 55 S. E. 442, in which the ruling in Debnam v. Chitty, supra, in regard to the validity of the statute there in question, is expressly repudiated. This fact was not known at the time this case was argued here.

The first matter to which our attention is required arises from the contention that the judgments of 1897 and 1898 estop the plaintiff in error from raising any question as to the validity of the act of 1887, under which the bonds here involved were issued. We are unable to perceive that these judgments "contain process within themselves," or that any reason exists which discriminates the case at bar in this respect from Brownsville v. Loague, 129 U. S. 493, 9 Sup. Ct. 327, 32 L. Ed. 780. The judgments did not direct the clerk of the trial court to thereafter issue writs of mandamus if defaults in the annual payments of the coupons should occur. Clearly for a failure or refusal of the board to levy a tax in 1900, for instance, the coupon holder had to have an order of some description from the court to obtain relief. Although the judgments of 1897 and 1898 contained orders making it the duty of the board to annually levy the necessary tax, yet, on a subsequent failure of the board to obey such orders, some action by the court was necessary to enforce compliance with the previous orders. Whether the necessary action might be process for contempt or another writ of mandamus is immaterial. The fact remains that the judgments are not of themselves sufficient.

Section 620, Revisal 1905 (of the North Carolina laws), reads: "After the lapse of three years from the entry of judgment on the judgment docket, an execution can be issued only by leave of the court, upon motion, with personal notice to the adverse party, unless he be absent or nonresident, or can not be found to make such service, in which case such service may be made by publication, or in such other manner as the court shall direct. Such leave shall not be given unless it be established by the oath of the party, or by other satisfactory proof, that the judgment, or some part thereof, remains unsatisfied and due. But the leave shall not be necessary when execution has been issued on the judgment within the three years next preceding the suing for execution, and return thereof unsatisfied in whole or in part."

The last of the two judgments mentioned was rendered December 21, 1898. The affidavit on which was commenced the proceeding now under review was filed more than three years later. By force of the statute above quoted the judgments sought to be revived were dormant. The writ of mandamus applied for in 1905 is essentially, in the case at bar, a process in the nature of an execution. The statute in question is in effect a statute of limitation, and the trial court was bound by it. Ross v. Duval, 13 Pet. 45, 48, et seq., 10 L. Ed. 51. In other words, the plaintiffs below had to take the steps they did take. They necessarily filed the affidavit, had notice given the judgment debtor, and moved the court to revive the dormant judgments and issue, in essence and effect, process of execution, not contained in the judgments

of 1887 and 1898. The decision in Brownsville v. Loague, supra, controls us. The result is that the plaintiff in error was not and is not estopped by the judgments of 1897 and 1898 to question the validity of the act of 1887.

Still another reason exists for holding that the board of commissioners, in behalf of the taxpayers of the township, were and are at liberty to assail the validity of the act of 1887. As has been stated, the Legislature in 1895 annulled the powers of the board to act as the agents of the township. The service of the rule to show cause in 1905 was made only on the chairman of the board. While we doubt the strict legality of this service of process (Revisal 1905, § 440; 1 Code 1883, p. 81, § 217), we shall not pause to discuss this question. The only service of process and the only appearance, that being special, was on and by the board. If the repealing act of 1895 was a valid exercise of a power vested in the Legislature, the township has suffered a judgment without due process of law, and without having had its day in court. It is said, of course, that the act of 1895 is invalid because it impaired the obligation of a contract. But we cannot so decide unless and until we decide that the act of 1887 was validly enacted, for otherwise there was no valid contract which was impaired by the act of 1895.

We must next consider the effect we should give to the recent decision of the Supreme Court of North Carolina in the case of Board v. Wachovia Co., supra. It may be that this court, notwithstanding the Wachovia opinion, is constrained to discuss and independently decide the validity of chapter 365, Acts 1887. But, without expressing an opinion on this question, we think reasons exist making it improper to avoid the discussion which follows. Very frequently it is proper for a court to avoid expressing an opinion on a question not necessarily involved in disposing of the case before the court. And in the case at bar it may be thought that this court could most properly dispose of this case by merely affirming the trial court's ruling with a citation to the Wachovia Case. Such course would leave open a question of grave importance to many litigants and members of the bar in North. Carolina. Does this court affirm merely because the view expressed by the North Carolina court coincides with our own view reached independently, or because we consider that this court is bound by the construction put by the North Carolina court on the constitutional provision as to the method of enacting taxing statutes?

Without saying that this court must in all cases relieve litigants and counsel of such embarrassment, we think that there is a reason in this particular case which would render it improper to fail to express and to discuss the reason why we affirm the judgment of the trial court. This reason is as follows: In the case of Tollman v. Board, 145 Fed. 753, 763, 764, 76 C. C. A. 317 (owing chiefly to the fact that certain language, to be hereinafter quoted, used in the opinion in Great Southern Hotel Co. v. Jones, 193 U. S. 546, 24 Sup. Ct. 5, 76, 48 L. Ed. 778, escaped the attention of the writer), we apparently showed less than the respect we feel for the opinion of one of the learned members of the Supreme Court of the United States. A question of great importance was in the Tollman opinion passed over without any consider