the certificates issued to White, namely, certificates numbered 33, 36, and 39, out of Book C, and with the consent of the company, and by an entry on its books, but without authority, and in fraud of the rights of White, transferred the 3 shares of stock represented by the 3 certificates into his own name, receiving from the company, in lieu thereof, a certificate of ownership of said 3 shares, issued under its seal in his name; that White died on December 10, 1841, leaving Mary S. White, his wife, the plaintiff Asenath A. Ware, his daughter, and the five plaintiffs who are his grandchildren, his only heirs at law; that he was entitled at the time of his death to a considerable personal estate, and possessed of 24 shares in the stock of the Galveston City Company, including the 3 shares so alleged to have been fraudulently transferred by Lipscomb into his own name; that 21 of said shares were, at the time of said White's death, standing in his name on the books of the company, and the certificates of ownership thereof so issued to him, to wit, those numbered 108, 116, 118, 119, 120, 121, 122, and 124, out of Book A, and those numbered 10, 12, 27, 28, 34, 42, 43, 44, 45, 46, 47, 48, and 49, out of Book C, were at that time in the possession or power of said Lipscomb; that the personal estate of which White died possessed was more than sufficient, exclusive of the 24 shares of stock, to pay his debts, and they had long since been paid; and that there was no administration of his estate in Texas, nor any necessity therefor.

The bill further showed that Mary S. White died in 1853, without having disposed of the right or interest she was entitled to as the widow of David White in the said 24 shares of stock, leaving her daughter, the said Asenath, and her said five grandchildren, her only heirs at law her surviving; and that they, as such, and as the only heirs at law of David White, thereupon became entitled to said shares of stock.

The bill further showed that Lipscomb, after the death of said White, and with the connivance of the company, and by an entry on its books, but without authority, and in fraud of the rights of the plaintiffs, transferred the said 24 shares of stock to some persons unknown; the company at the time taking up and canceling the said certificates of ownership thereof, and delivering to the transferees new certificates under its seal in their names, representing the shares to be $1,000 each. That the company subsequently procured the said 24 shares, and the certificates corresponding thereto, to be surrendered to it by those to whom Lipscomb had so transferred them, or by their assigns, at the same time canceling said shares upon its books, thus retiring them; and was now claiming the benefit thereof. That the transfer of said shares *by Lipscomb, after the death of White, was without warrant, and void, and the company, in contemplation of law, was a party to his said illegal acts, and

liable to the plaintiffs for all the consequences thereof; and that the company held the stock in trust for the plaintiffs.

The bill further charged that the truth of the said matters would appear by the books, certificates, writings, papers, and memoranda relating to said shares of stock, in the possession or power of the company, if it would discover and produce the same, which it refused to do, though frequently applied to for that purpose.

The bill further charged that the company and its agents and servants had always studiously concealed from the plaintiffs the said matters relating to the stock of the said White, and particularly the said illegal acts of Lipscomb, and the company's participation therein, by withholding from the plaintiffs all information in reference to said stock, and refusing them access to its books and papers; that the plaintiffs were in total ignorance of said illegal acts of Lipscomb, and their rights in the premises, until about 12 or 14 months next before the filing of the bill; that the plaintiffs, except the said Asenath, were, at the time of the death of said White, minors of tender age, and resided in Alabama and Florida, at a distance of 800 miles and upwards from Galveston, where Lipscomb resided, and where the said illegal acts were committed; that the plaintiffs were not apprised even of the fact that said White had owned shares in the capital stock of the company, until some years after his death; that after they were so apprised, to wit, in 1869, and again on March 19, 1879, at Galveston, by one Thomas J. Molton, their agent in that behalf, and at divers other times and by other persons, they made application to the company, its agents and servants, for information as to what disposition, if any, had been made of the shares owned by said White, and also for permission to examine its books and papers, to ascertain their rights, but the company, on every such application, declined to disclose to the plaintiffs any facts relating to said stock, and refused them access to its books and papers.

*The bill further showed that Lipscomb died in December, 1856, notoriously insolvent, and without having accounted to the plaintiffs, or any of them, for the 24 shares of stock, or any interest therein; that the plaintiffs had applied to the company to cancel the alleged transfers of said 24 shares, and the entries of such transfers in its books, and to revive said shares in the names of the plaintiffs as the heirs at law of said White and his widow, and to enter the names of the plaintiffs in its books as the owners of said stock, and to issue and deliver to them certificates therefor, in the proper form, but that it refused to comply with such requests.

The bill called for an answer, but not upon oath, the benefit whereof was expressly waived. It prayed that the alleged transfer of the 3 shares of stock by Lipscomb into his own name from that of White, and the entry thereof in the books of the company, and

the delivery by it to Lipscomb of a certificate of ownership of the 3 shares, might be declared to be a fraud upon White; that it might be declared that the alleged transfers by Lipscomb of the 24 shares, after the death of White, and the subsequent retirement or cancellation of said shares by the company, were without lawful warrant, and void; that the said 24 shares might be declared to be the property of the estate of White, and the plaintiffs might be declared entitled to have the same to their own use, and to share ratably with the other stockholders of the company in all accumulations of property by the company since the date of said illegal transfers; that the company might be decreed to cancel said transfers and the entries thereof in its books, and to revive the said 24 shares, to enter the names of the plaintiffs in its books as the owners of the stock, and to issue and deliver to the plaintiffs a certificate of ownership for each of said 24 shares at the face value of $1,000 each; that, if the revival of said stock, and the transfer thereof on the books of the company into the names of the plaintiffs, were impracticable, then the company might be decreed to pay to the plaintiffs the market value thereof; and for general relief.

The answer of the defendant sets forth, by way of demurrer for want of equity, that the cause of action of the plaintiffs, and of those under whom they claim, accrued more than 35 years before the filing of the bill; that no reasonable or sufficient cause or excuse is alleged why the suit was not earlier brought, or why all the facts therein pretended to be known were not earlier discovered; that it was not shown in the bill when or how any discovery of facts alleged not to have been before known, or to have been concealed, was made by the plaintiffs, nor any diligence to ascertain the same, nor any excuse for the want of such diligence, nor any statement as to the course of proceedings, nor any facts connected with the administration of the estates of David White or his widow in Alabama, or as to the knowledge or acts of the legal representatives thereof in regard to the alleged rights and claims which are the subject of this suit, nor to remove the presumptions that all matters relating to the said stock, and on which the rights thereto were dependent, were fully known to said representatives; that the plaintiffs' cause of action is barred by the law of limitations of Texas, and the lapse of more than 35 years since the same accrued before this suit was brought; that the suit had been delayed such great lapse of time, and parties holding the certificates of stock alleged to have been issued in renewal of those which belonged to White had many years ago obtained full value therefor in the property of the company, and the rights of third and innocent parties, as the only holders of the present alleged stock in the company, had intervened, and been permitted to grow up and become of great value: and that, therefore, the plain

tiffs' cause of action was barred by such lapse of time and laches, was stale and inequitable, and ought not to be heard in a court of equity.

The answer sets forth various denials of material allegations in the bill, and various alleged defenses thereto. It further sets forth that no person survives who was connected with the business or administration of the company, or who had any connection with the stock, or could be reasonably presumed to have any knowledge respecting the same.

The answer further says that the defendant pleads that suit on the matters alleged in the bill had been forborne until all persons. connected with the transactions to which it related, knowing particular facts and details in regard to said stock, and the receipt and appropriation of proceeds therefor, were dead; and it pleads the laches, neglect, and delay of the plaintiffs in bar of the suit, and alleges that the same is stale and inequitable, and ought not to be further heard or considered.

The answer further sets forth that by the statute of limitation of suits in Texas, passed in 1841, and ever since in force, all actions for personal property must be commenced and sued within 2 years after the cause of action accrued, all actions of debt grounded upon any contract in writing must be commenced and sued within 4 years next after the cause of such action or suit, and the longest period of limitation for suits or actions of any kind was 10 years; that the plaintiffs' cause of action, if any they ever had, accrued more than 10 years and more than 35 years before the filing of the bill; that said statute had not failed to be operative against the plaintiffs on account of any exception therefrom, contained therein, within the principles of equity and good conscience restraining the same. It denies all concealment, fraud, or wrong charged in the bill on the part of the defendant, to prevent the running of said statute, and denies that any diligence had been shown or existed on the part of the plaintiffs, or any excuse for the lack thereof, to prevent the running of said statute; and it pleads the same as a bar to the plaintiffs' suit. It further answers that the great lapse of time, rendering impossible correct knowledge of facts at the present day, resulting from the death of all parties to the transactions, the laches of the plaintiffs, and the bona fide accrual of the large and valuable rights of the other stockholders in the company, render the bill a stale, inequitable, and unconscientious demand, which ought not to be heard in a court of equity; and the defendant pleads the same in bar and estoppel.

A replication was filed to the answer, proofs were taken, and the cause was heard. The circuit court, in November, 1886, dismissed the bill, with costs, and allowed an appeal to this court by the plaintiffs. No written opinion was delivered, but it is stated in the brief of the appellants that the circuit court held. that the claim could not be prosecuted, by reason* of the laches of the plaintiffs.

We'

the question of laches. David White's widow was a feme sole from 1841 to 1853. The plaintiff Lumpkin became of age in 1843, the plaintiff Daniel O. White in 1847, the plaintiff Clement B. White in 1850, the plaintiff Cowles in 1852, and the plaintiff Mary A. Holtzclaw in 1854. Robert J. Ware died in 1867, and his widow, since that time, has been a feme sole. The longest period of limitation for any cause of action in Texas is 10 years.

Decree affirmed.

(146 U. S. 179)

HARDEE et al. v. WILSON.
(November 21, 1892.)
No. 34.

APPEAL-JOINT DECREE-PARTIES-DISMISSAL. An appeal by one of two codefendants from a joint decree against them will be dismissed, where the record does not show either that the other defendant was notified in writing and failed to appear, or that he appeared and refused to join in the appeal.

Appeal from the circuit court of the United States for the southern district of Georgia. Dismissed.

Wm. D. Harden and C. N. West, for appellants. T. P. Ravenel and Rufus E. Leiter, for appellee.

Mr. Justice SHIRAS delivered the opinion of the court.

It appears by this record that Benjamin J. Wilson filed in the superior court of Washington county, in the state of Georgia, his bill of complaint against Jaines M. Minor, Annie E. Minor, and John L. Hardee, and that the cause was subsequently removed into the circuit court of the United States for the southern district of Georgia. In his bill the complainant charged that a certain conveyance of land, made on the 18th day of March, 1876, by said James M. Minor to himself as trustee for his wife, Annie E. Minor, and a certain other deed of conveyance of the same lands, made on the 6th day of February, 1877, to John L. Hardee, were without consideration, and with the intention of putting said lands beyond the reach of his creditors, and particularly with the intention to delay, hinder, and defraud him, the said complainant, in the collection of a certain judgment in his favor against Minor, and prayed that said deeds might be declared null and void as to his said demand.

Answers were filed to this bill by Hardee, and by Minor and his wife, and the case was so proceeded with that, on the 12th day of December, 1887, a final decree was entered declaring, in effect, that the trust deed in favor of Minor's wife was void, and that the deed to Hardee could only operate as a security for the payment of a certain sum of money found to be due Hardee on an account stated by a master.

From this decree Hardee has appealed, and the question presents itself whether his ap

peal can be heard in the absence of Minor and his wife, who were codefendants with him in the court below, and who have taken no appeal.

Undoubtedly the general rule is that all the parties defendant, where the decree is a joint one, must join in the appeal. Owings v. Kincannon, 7 Pet. 399; Mussina v. Cavazos, 6 Wall. 355.

In the present case, Hardee, the appellant, complains that the decree below was wrong, as respects him, in two particulars: First, in declaring that the deed, absolute in form, from Minor and wife to him, was merely a security; and, second, if the deed were a security only, in fixing the amount of his debt at too small a sum. And as it was the interest of Minor and wife to have their deed to Hardee held to be a security merely, and also to have the debt thereby secured found as small as possible, particularly as the decree gave them a beneficial interest in the proceeds of the sale of the land ordered by the decree, it was contended that it would be for the interest of Minor and wife to have the decree stand, and that hence Hardee might prosecute his appeal alone.

And

At the same time it was said that, if this were not so, the Minors had disclaimed any interest. But the disclaimer was nothing more than that the Minors agreed with the position taken by Hardee, which, however, the circuit court held to be untenable. it further appears that one matter in controversy in the court below was the validity of the deed of trust declared by Minor in favor of his wife, and which deed was declared by the decree in the court below to have been given without consideration, and in fraud of Wilson and other creditors of Minor, and as respects this feature of the decree it was the right of Minor and wife to have taken an appeal. In the case of Masterson v. Herndon, 10 Wall. 416, it was held that "it is the established doctrine of this court that in cases at law, where the judgment is joint, all the parties against whom it is rendered must join in the writ of error; and, in chancery cases, all the parties against whom a joint decree is rendered must join in the appeal, or they will be dismissed. There are two reasons for this: (1) That the successful party may be at liberty to proceed in the enforcement of his judgment or decree against the parties who do not desire to have it reviewed; (2) that the appellate tribunal shall not be required to decide a second or third time the same question on the same record. In the case of Williams v. Bank, 11 Wheat. 414, the court says that, where one of the parties refuses to join in a writ of error, it is worthy of consideration whether the other may not have remedy by summons and severance; and in the case of Todd v. Daniel, 16 Pet. 521, it is said distinctly that such is the proper course. This remedy is one which has fallen into disuse in modern practice, and is unfamiliar to the profession; but it was, as we find from an examination of the books,

allowed generally, when more than one person was interested jointly in a cause of action or other proceeding, and one of them refused to participate in the legal assertion of the joint rights involved in the matter. In such case the other party issued a writ of summons by which the one who refused to proceed was brought before the court, and, if he still refused, an order or judgment of severance was made by the court, whereby the party who wished to do so could sue | alone. One of the effects of this judgment was to bar the party who refused to proceed from prosecuting the same right in another action, as the defendant could not be harassed by two separate actions on a joint obligation, or on account of the same cause of action, it being joint in its nature. This remedy was applied to cases of writs of error when one of the plaintiffs refused to join in assigning errors, and in principle is no doubt as applicable to cases where there is a refusal to join in obtaining a writ of error or in an appeal. The appellant in this case seems to have been conscious that something of the kind was necessary, for it is alleged in his petition to the circuit court for an appeal that Maverick [the codefendant] refused to prosecute the appeal with him. We do not attach importance to the technical mode of proceeding called summons and severance. We should have held this appeal good if it had appeared in any way by the record that Maverick had been notified in writing to appear, and that he had failed to appear, or, if appearing, had refused to join. But the mere allegation of his refusal, in the petition of appellant, does not prove this. We think there should be a written notice, and due service, or the record should show his appearance and refusal, and that the court on that ground granted an appeal to the party who prayed for it, as to his own interest. Such a proceeding would remove the objections made in permitting one to appeal without joining the other, that is, it would enable the court below to execute its decree so far as it could be executed on the party who refused to join, and it would estop that party from bringing another appeal for the same matter. The latter point is one to which this court has always attached much importance, and it has strictly adhered to the rule under which this case must be dismissed, and also to the general proposition that no decree can be appealed from which is not final, in the sense of disposing of the whole matter in controversy, so far as it has been possible to adhere to it without hazarding the substantial rights of parties interested."

In the case of Downing v. McCartney, reported in the appendix to 131 U. S., at page xcviii., where the decree below was joint against three complainants, and one only appealed, and there was nothing in the record showing that the other complainants had notice of this appeal, or that they refused to join in it, the appeal was therefore dismissed. Mason v. U. S., 136 U. S. 581, 10 Sup. Ct.

Where a person who had been extradited from Illinois for a violation of a Wisconsin banking law sued out a writ of habeas corpus pending trial in a court of Wisconsin, on the ground that his extradition was in violation of the constitution and laws of United States, it was discretionary with the circuit court to refuse to discharge him, since it was not an urgent case, involving either the authority and operations of the general government, or the obligations of this country to or its relations with foreign nations, and since state courts are, equally with federal courts, charged with the duty of protecting the accused in the enjoyment of his rights under the constitution of the United States. 49 Fed. Rep. 833, affirmed. Ex parte Royall, 6 Sup. Ct. Rep. 734, 117 U. S. 241, followed.

Appeal from the circuit court of the United States for the eastern district of Wisconsin. Affirmed.

Statement by Mr. Justice BROWN: *This was an appeal from an order of the circuit court for the eastern district of Wisconsin discharging a writ of habeas corpus, and remanding the petitioner, Charles E. Cook, to the custody of the sheriff of Dodge county, Wis. The facts of the case were substantially as follows:

On March 9, 1891, the governor of Wisconsin made a requisition upon the governor of Illinois for the apprehension and delivery of Cook, who was charged with a violation of section 4541 of the Laws of Wisconsin, which provides that "any officer, director,

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