Opinion of the court.

fully concealed by the trustee from the knowledge of the cestui que trust.

The case of Michoud v. Girod, cited by the appellant's counsel, is an example of the class in which the concealment of the fraud was the aggravation of the offence. The facts of the case were "clearly established" by records and other written documents, and the court were not called on to found their decree on the frail memory or active imaginations of ancient witnesses, who may not be able, after a great lapse of time, to distinguish between their faith and their knowledge, between things seen or heard by themselves, and those received from family or neighborhood gossip, or upon that most unsafe of all testimony, conversations and confessions, remembered or imagined,-partially stated or wholly misrepresented. The fraudulent concealment was also clearly established. The heirs, who lived in Europe, were deceived by the false representations of the executor, and kept in total ignorance of the situation and value of the estate, having no other information on the subject than that communicated to them by him. The delay was not the consequence of any laches in the heirs, but was caused by the successful fraud of the executor, and was but an aggravation of the offence.

But the case before us has none of the peculiar characteristics of those to which we have referred. For more than twenty-five years the widow and heirs have acquiesced in this sale, and it is more than thirty since the administration account was settled, which is alleged to have been fraudu lent. The guardian of the complainant, who approved the account, is dead; the widow died in 1855. Two of the heirs were of full age in 1831, and the others afterwards. This bill was filed in 1858. The bill does not state the age of complainant. But at the time of filing his bill, he must have been over forty years of age.

The whole transaction was public, and well known to the widow and the heirs, and their guardians. The purchase of the estate by the administrator could have been avoided at once, if any party interested disapproved of it. There was not and could not be any concealment of the facts of the

Opinion of the court.

case. The complainant claims as assignee of his elder brothers and sisters, and uses them as witnesses to prove the alleged fraud after a silence of over thirty years. They attempt to prove the signature of their mother to the documents on file in the court to be forged, and this after the death of the mother, who lived for twenty-eight years after the transaction without complaint or allegation either that her signature was fraudulently obtained or forged. A daughter, who was twenty-three years of age when this sale was made, and had full knowledge of the whole transaction, after near thirty years' silence, now comes forward to prove that her concurrence and assent was obtained by fraud; and now, after the death of the guardian and the mother, who could have explained the whole transaction, the aid of a court of chancery is demanded to destroy a title obtained by judicial sale, after the parties complaining, with full knowledge of their rights, have slept upon them for over a quarter of a century.

Now, the principles upon which courts of equity act in such cases, are established by cases and authorities too numerous for reference. The following abstract, quoted in the words used in various decisions, will suffice for the purposes of this decision:

"Courts of equity, in cases of concurrent jurisdiction, consider themselves bound by the statutes of limitation which govern courts of law in like cases, and this rather in obedience to the statutes than by analogy.

"In many other cases they act upon the analogy of the liko limitation at law. But there is a defence peculiar to courts of equity founded on lapse of time and the staleness of the claim, where no statute of limitation governs the case. In such cases, courts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights. Long acquiescence and laches by parties out of possession are productive of much hardship and injustice to others, and cannot be excused but by showing some actual hindrance

Opinion of the court.

or impediment, caused by the fraud or concealment of the parties in possession, which will appeal to the conscience of the chancellor.

"The party who makes such appeal should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim; how he came to be so long ignorant of his rights, and the means used by the respondent to fraudulently keep him in ignorance; and how and when he first came to a knowledge of the matters alleged in his bill; otherwise the chancellor may justly refuse to consider his case, on his own showing, without inquiring whether there is a demurrer or formal plea of the sta tute of limitations contained in the answer."

The bill, in this case, is entirely defective in all these respects. It is true, there is a general allegation, that the "fraudulent acts were unknown to complainant till within five years past," while the statement of his case shows clearly that he must have known, or could have known, if he had chosen to inquire at any time in the last thirty years of his life, every fact alleged in his bill. That his mother was entitled to dower in the land if the sale was set aside, was no impediment to his pursuit of his rights, while her death may have removed the only witness who was able to prove that his complaint of fraud was unfounded, and that it was by the consent and desire of the family that the property was kept in the family name by the only one who was able to advance the money to pay the debts of the deceased; a fact fairly to be presumed from her silence and acquiescence for twenty-four years.

The court below very properly dismissed this bill, and refused to examine into accounts settled by the courts with the knowledge of all parties concerred, and commencing forty years and ending thirty years ago, and to grope after the truth of facts involved in the mists and obscurity consequent on such a lapse of time.

If a further reason were required for affirming this decree, it might be found in the statute of Massachusetts, declaring that "actions for land sold by executors, administrators, or guardians, cannot be maintained by any heir or person

Statement of the case.

claiming under the deceased or intestate, unless the same be commenced within five years next after the sale. But we prefer to affirm the decree for the reasons given, without passing any opinion on the effect of this statute.

DECREE AFFIRMED WITH COSTS.

BROBST V. BROBST.

1. Where the Circuit and District Judge agree in parts of a case, and dispose of them by decree finally, but are unable to agree as to others; and certify as to them a division of opinion, both parts of the case may be brought to the Supreme Court at once and heard on the same record.

2. A party allowed to enter an appeal bond, nunc pro tunc, in a case where the court supposed it probable that his solicitors had been misled by a peculiar state of the record and mode of bringing up the questions from the court below.

In this case, in the court below, some questions had been disposed of finally by the Circuit and District Judges, and others were suspended by their inability to agree and a consequent division of opinion. An appeal was taken from the part covered by the final decree, and a certificate of division upon the residue of the case. No appeal bond had been

entered.

A motion was now made to dismiss the appeal for want of an appeal bond entered into as required by the act of Congress. It was also objected that no appeal could be taken from the decision of the court below, until the certificate of division of opinion in the same cause between the judges was disposed of in this court.

Mr. Justice NELSON delivered the opinion of the court. It appears that an appeal has been taken from that part of the case covered by the final decree, and a certificate of division upon the residue.

There is no objection to this practice. It has been recognized and acted upon in several instances in this court.

Statement of the case.

The questions arising on this appeal, and on the certificate of division, come up together, and are heard on the same record.

The omission to file the bond, under the circumstances, may be corrected by filing one in conformity with the act of Congress. The peculiar state of the record, and mode of bringing up the questions from the court below, probably misled the solicitors.

Let a rule be entered, that the appellant have sixty days from notice of it, to file a bond with the clerk of the court, to be approved by the proper officer, upon complying with which, this motion be dismissed; otherwise granted.

DAY V. GALlup.

1. In trespass in a State court against the marshal of the United States for levying on goods which ought not to have been levied on, the marshal's title as marshal is not necessarily drawn in question. He may be sued, not as marshal, but as trespasser. Hence, a judgment in a State court against a marshal for making a levy alleged to be wrong, is not necessarily a proper subject for review in this court, under the 25th section of the Judiciary Act, allowing such review in certain cases where "an authority exercised under the United States is drawn in question, and the decision is against its validity."

2. Where a proceeding in the Federal court is terminated so that no case is pending there, a State court, unless there be some special cause to the contrary, may have jurisdiction of a matter arising out of the same general subject, although, if the proceeding in the Federal court had not been terminated, the State court might not have had it.

THE 25th section of the Judiciary Act provides that a final judgment in the highest court of law of a State, in which is drawn in question the validity of an "authority exercised. under the United States," and the decision is against its validity, may be reviewed in this court. With this act in force, Gallup sued Derby & Day, Gear, and Allis, in a State court of Minnesota, in trespass, for taking and carrying away goods. On the 1st April, 1860, the defendants justified under certain writs of attachment and execution, issued out of the Federal court for Minnesota, in a certain suit therein