*403 Statement by Mr. Justice Moody: ana, and employed a local agent to conduct | which, reversing the judgment of the Court that business. It was conducted under the of First Instance of the City of Manila, orlaws of the state. The state undertook to dered judgment for plaintiffs in an action tax the capital employed in the business to recover a sum alleged to be due for labor precisely as it taxed the capital of its own and materials furnished under a building citizens in like situation. For the purpose contract. Affirmed. of arriving at the amount of capital actually employed, it caused the credits arising out of the business to be assessed. We think the state had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the state evidences of credits in the form of notes. Under such circumstances they have a taxable situs in the state of their origin. The defendants in error, hereinafter called the plaintiffs, brought an action in the court of first instance of the city of Manila, in the Philippine Islands, to recover from the plaintiffs in error, hereinafter called the defendants, the sum of 9,250.62 pesos, alleged to be due on account of labor and materials furnished under a building contract and its The judgment of the Supreme Court of modifications. The defendants, among other Louisiana is affirmed. (205 U. S. 403) BEHN, MEYER, & CO., Plfis. in Err., V. CAMPBELL & GO TAUCO. Appeal-distinction between appeal and writ of error. 1. Errors alleged to have been committed in an action at law can be reviewed in the Supreme Court of the United States only by writ of error. Appeal-review of facts on writ of error. 2. Only questions of law apparent on the record can be considered by the Supreme Court of the United States on a writ of error, and there can be no inquiry whether there was error below in dealing with questions of fact.t Appeal-review of facts on writ of error. 3. Whether the supreme court of the Philippine Islands, acting under the authority of the P. I. Code of Procedure, § 497, subd. 3, erred in setting aside the conclusion of the court of first instance as being plainly and manifestly against the weight of evidence, is a question which is not open on a writ of error from the Federal Supreme defenses, set up first, that the labor was performed in a negligent and unworkmanlike manner, which caused the defendants great damages; and, second, that the plaintiffs contracted in writing with the defendants to fill a certain lot of land with earth and sand at a given rate per cubic meter, and had been paid upon their representation of the amount of earth and sand used in the filling, $81,497.65, Mexican currency; that the amount of sand and earth used was much less than that represented, and that the plaintiffs had been overpaid $41,197.63, Mexican currency. The defendants sought to recover this overpayment by way of counterclaim. A trial before the judge of the court of first instance resulted in a finding that the defendants had been damaged through the negligent and unworkmanlike manner of furnishing the labor under the building contract and its modifications, to an amount equal to the sum remaining due under the terms of that contract and that there had been an overpayment on the filling contract, as alleged by the defendants. Accordingly judgment was rendered dismissing the plaintiffs' complaint, and that the defendants recover from the plaintiffs $52,000 Mexican currency. The plaintiffs appealed to the supreme court of the Islands. That court found as a fact substantially that the plaintiffs had fully complied with their contract and were entitled to recover the amount they alleged to be due; that the amount paid by the defendants to the plaintiffs on account of filling was determined by actual measurements made at the time of the filling by defendants' representatives; that there was no fraud or mistake, and that the defendants, therefore, were not entitled to recover anything on account of overpayment on that account. The judg ment of the court of first instance was reversed, and judgment ordered for the plainN ERROR to the Supreme Court of the tiffs in the sum of $9,250.62, Mexican cur Court. Appeal-questions reviewable errors not assigned. 4. Alleged errors of law in the opinion of the court below, which was engaged with a discussion of evidence and the inferences which might properly be drawn from it, will not be considered by the Supreme Court of the United States on a writ of error if they are not contained in the assignment of errors filed with the petition for the writ, where, on the whole, it is clear that the facts found justify the judgment rendered. [No. 227.] Argued March 7, 1907. 1907. Decided April 8, I Philippine Islands to review a judgment rency. Thereupon the defendants appealed Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 8-15. *406 405 to this court. The appeal was dismissed by | due to the class of lumber which was selectthis court for want of jurisdiction. The de-ed by the owner. fendants then sued out a writ of error, which was allowed by a justice of the supreme court of the Philippine Islands, and filed with its petition the following assignment of errors: "1. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila to the effect that the plaintiffs in error were entitled to the sum of $9,250.62, Mexican currency, as damages sustained by reason of the faulty construction of the premises in question. “(7) That the plan of the work and the placing of the principal posts were approved by the city engineer and were in conformity with the ordinances. "(8) That the owner took possession of the house in the month of May, 1902, and has occupied it since that time as a dwelling house. "By the very fact of accepting the house and occupying it, the defendants acknowledged that it was constructed substantially as required by the contract, plans, and specifications; and this is the law even when the work is not done according to the contract, but accepted. "4. The supreme court of the Philippine Islands erred in not finding that the evi "2. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila granting judgment in favor of the plaintiff in error in the sum of $52,000, Mex-dence in the case was not sufficient to justiican currency, the amount overpaid by the plaintiffs in error to the defendants in error for the delivery of sand. "3. The supreme court of the Philippine Islands erred in finding as matters of fact the following: "(1) That in the construction of the building the contract, plans, and specifications have been complied with, with the exception of a variation to the advantage of the owner, which is that the principal posts rest upon layers of stone, instead of upon the ground, as called for by the plan. “(2) That, if there has been any variation from the original plan, this was done largely, if not wholly, with the consent of the owner, and, at all events, with that of his agent, the inspecting engineer, and that these changes have been improvements. fy the court reversing the judgment of the court of first instance. "5. The supreme court of the Philippine Islands erred in reversing the judgment of the court of first instance for the city of Manila, and in giving judgment against the plaintiff in error in the sum of $9,250.62, Mexican currency. "6. The supreme court of the Philippine Islands erred in not confirming the judgment of the court of first instance of the city of Manila in giving judgment in favor of the plaintiff in error in the sum of $52,000, Mexican currency.” Messrs. Henry E. Davis and Charles C. Carlin for plaintiffs in error. Messrs. Aldis B. Browne and Alexander Britton for defendants in error. *Mr. Justice Moody, after making the foregoing statement, delivered the opinion of the court: "(3) That the house was constructed under a contract and specifications which did little more than to designate the size of the building, the material to be employed, and, with the plan, gave a drawing of the buildThe defendants first appealed from the ing, leaving the details necessary almost judgment of the supreme court of the Philcompletely to the direction of the inspect-ippine Islands, which had been rendered ing architect or engineer. "(4) That the owner intrusted the direction of the work to an inspecting engineer selected by himself, with full authority to represent him, and that the contractor has performed the work solely in accordance with the direction of the said inspecting engineer. "(5) That although there is some evidence to indicate that a part of the house has settled more than other parts, this is due elther to the ground itself or to a defect in plan, or to the directions of the inspecting engineer, and cannot be attributed to a failure on the part of the contractor to comply with the conditions of the contract. "(6) If there are any cracks in the floor and in the joints in the building, this is against them and the appeal was dismissed. 200 U. S. 611, 50 L. ed. 619, 26 Sup. Ct. Rep. 753. The reason, so plain that it seemed not to require statement, was that errors alleged to have been committed in an action at law can be reviewed here only by writ of error. This, in the absence of modification by statute, is the rule in respect to all courts whose records are brought here for review. Walker v. Dreville, 12 Wall. 440, 20 L. ed. 429; United States v. Hailey, 118 U. S. 233, 30 L. ed. 173, 6 Sup. Ct. Rep. 1049; Deland v. Platte County, 155 U. S. 221, 39 L. ed. 128, 15 Sup. Ct. Rep. 82; Comstock v. Eagleton, 196 U. S. 99, 49 L. ed. 402, 25 Sup. Ct. Rep. 210. The defendants, having failed in their appeal, have now brought a writ of error and 407 ⚫408 ask this court to review the facts to the same extent that they would be reviewed on appeal. But this overlooks the vital distinction between appeals and writs of error which has always been observed by this court, and recognized in legislation. An appeal brings up questions of fact as well as of law, but upon a writ of error only questions of law apparent on the record can be considered, and there can be no inquiry whether there was error in dealing with questions of fact. Wiscart v. Dauchy, 3 Dall. 321, 1 L. ed. 619; Generes v. Campbell, 11 Wall. 193, 20 L. ed. 110; United States v. Dawson, 101 U. S. 569, 25 L. ed. 791; England v. Gebhardt, 112 U. S. 502, 28 L. ed. 811, 5 Sup. Ct. Rep. 287; Martinton v. Fairbanks, 112 U. S. 670, 28 L. ed. 862, 5 Sup. St. Rep. 301; Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452 (where the cases are reviewed by Mr. Justice Gray); Elliott v. Toeppner, 187 U. S. 327, 47 L. ed. 200, 23 Sup. Ct. Rep. 133; Rev. Stat. § 1011, U. S. Comp. Stat. 1901, p. 715. The assignment of errors in the case at bar does not allege any errors of law, but deals exclusively with questions of fact. There are six assignments. The first, second, fifth, and sixth assignments severally allege that the supreme court erred in rendering the judgment which it did and in reversing the judgment of the court of first instance. The third assignment specifically recites that "the supreme court of the Philippine Islands erred in finding as matters of fact the following:" Then come eight specifications of errors in such findings. It is, however, argued by counsel that the fourth assignment of errors in effect alleges | an error in law. That assignment is as follows: "The supreme court of the Philippine Islands erred in not finding that the evidence in the case was not sufficient to justify the court reversing the judgment of the court of first instance." The Philippine Code of Procedure (Public Laws of Philippine Commission, act 190, 1901), prescribes in chapter 22 the practice of the supreme court in reviewing the judgments of courts of first instance. It confines the review to questions of law, with certain exceptions, one of which is as follows: "If the excepting party filed a motion in the court of first instance for a new trial, upon the ground that the findings of fact were plainly and manifestly against the weight of evidence, and the judge overruled said motion, and due exception was taken to his overruling the same, the supreme court may review the evidence and make such findings upon the facts and render such final judgment as justice and equity require. But, if the supreme court shall be of the opinion that the exception is frivolous and not made in good faith, it may impose double or treble additional costs upon the excepting party, and may order them to be paid by the counsel presecuting the bill of exceptions, if, in its opinion, justice so requires." § 497, subdiv. 3. The supreme court, in the case at bar, acted upon the authority conferred by this subdivision. It is said that the supreme court can review the evidence taken in the court of first instance and thereby arrive at a different conclusion of facts from that found by the trial court only in the case that "the findings of fact were plainly and manifestly against the weight of evidence." It is therefore urged that whether the court erred in setting aside the conclusions of the lower court as plainly and manifestly against the weight of evidence is a question of law which may be brought here by writ of error. It was held in De la Rama v. De la Rama, 201 U. S. 303, 50 L. ed. 765, 26 Sup. Ct. Rep. 485, that, upon an appeal, this court will consider whether a reversal by the supreme court of the findings of the court of first instance was justified on the ground that the findings below were plainly and manifestly against the weight of evidence, and, upon being satisfied that the action of the supreme court was not warranted, on that ground would reverse it. But this case was one of appeal, and the vital distinction between an appeal and a writ of error has already been shown. The principle acted upon in that case is not applicable to writs of error. The fourth assignment of error, therefore, raises no question of law. The case would stop here were it not for the fact that the defendants in their brief and in the oral argument in their behalf go beyond the assignment of errors and set up three alleged errors of law not contained in them. It is said that the court below erred: "(1) In holding as a matter of law that the fact of taking possession of said dwelling house was an acknowledgment by the plaintiffs in error that it was constructed substantially as required by the said con tract. "(2) In holding as a matter of law that the plaintiffs in error were not entitled to recover their overpayments for earth and sand because no mutual mistake was shown in the premises. "(3) In rendering judgment for a sum in Mexican currency instead of in Philippine pesos." It is provided in the act giving this cours *410 jurisdiction to review the judgments of the supreme court of the Philippine Islands that they may be reviewed here "in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the United States." In such cases alleged errors not stated in the assignment of errors filed with the petition for the writ have sometimes been considered. The limits of this practice are accurately stated in the thirty-fifth rule of this court. There it is said that if errors are not assigned with the petition for the writ they will be disregarded, except that the court at its option may notice a plain error not thus assigned. But we find no such plain error in the opinion of the supreme court as warrants us in reversing its judgment. The findings of fact made by that court support and require the judgment which it rendered. We do not think it necessary or desirable to select from an opinion, which was engaged with a discussion of evidence and the inferences which might properly be drawn from it, statements of law and subject them to minute scrutiny, where, on the whole, it is clear that the facts found by the court justify the judgment which it rendered. Therefore we do not consider any questions except those set forth in the assignment of errors, and, deeming that they allege no errors in law, we affirm the judgment. ON A CERTIFICATE from the United States Circuit Court of Appeals for the Sixth Circuit presenting the question as to whether a bona fide purchaser of county bonds for value and before maturity was entitled to assume that a condition precedent to the issue of such bonds had been performed. Answered in the affirmative. Statement by Mr. Justice Moody: Plaintiff in error brought an action in the circuit court of the United States for the western district of Kentucky upon certain bonds and coupons purporting to have been issued by the defendant in error, one of the counties of the state of Kentucky. The following was the form of the bond: United States of America, County of Green, State of Kentucky. $500.00 For the Cumberland & Ohio Railroad. Twenty years after date, the county of Green in the state of Kentucky, will pay to the holder of this bond the sum of $500 with interest thereon at the rate of 6 per cent per annum, payable semiannually upon presentation of the proper coupons hereto attached, the principal and interest being payable at the Bank of America, in the city of New York. In testimony whereof, the judge of said county of Green has hereunto set his hand and affixed the seal of said county, on the 1st day of April, ▲. D., 1871, and caused the same to be attested by the county clerk, who has also signed the coupons hereto attached. (Green county seal.) T. R. Barnett, Judge. D. T. Towles, Clerk. The case was tried without a jury, and the court, after finding facts, rendered judgment for the defendant. The case then went to the court of appeals for the sixth circuit, and that court has certified here two ques tions of law upon which it desires instructions, with a statement of facts upon which the questions arise. In addition to the statement of facts we take into account the material parts of the charter of the Cumber land & Ohio Railroad Company, 15 of which contains the following provisions: "Sec. 15. That any city, town, or county through which said proposed road shall pass is hereby authorized to subscribe stock in said railroad company in any amount any such city, town, or county may desire; and the county court of any such county is au thorized to issue the bonds of their respec Argued February 27, 28, 1907. Decided April tive counties in such amount as the county 8, 1907. court may direct; and the chairman and *413 the Cumberland & Ohio Railroad requested the county court to submit to the qualified voters of the county the question whether the county should subscribe to $250,000 of the capital stock of the company, payable in bonds of the county, whereupon the judge of the county court on the 17th of June, 1869, ordered an election in the following terms: board of trustees, or mayor and aldermen and kind of payment that may be set forth of any town, and the mayor and aldermen in the subscription." The commissioners of or council of any city, are hereby authorized to issue the bonds of their respective towns or cities in like manner. All said bonds shall be payable to bearer, with coupons attached, bearing any rate of interest not exceeding 6 per cent per annum, payable semiannually in the city of New York, payable at such times as they may designate, not exceeding thirty years from date; but before any such subscriptions on the part of any city, town, or county shall be valid or binding on the same the mayor and aldermen, or chairman and board of trustees of any town, the mayor and aldermen or council of any city, and the county court of any county, having jurisdiction, shall submit the question of any such subscription to the qualified voters of such city, town, or county in which the proposed subscription is made, at such time or times as said chairman and board of trustees, or mayor and aldermen of any town, mayor and aldermen or council of any city, or the county court of any county, as aforesaid, may, by order, direct; and should a majority of the qualified voters voting at any such election vote in favor of subscribing said stock in said railroad company, it shall be the duty of such county court, trustees, or other authorities aforesaid, to make the subscription in the name of their respective cities, towns, or counties, as the case may be, and proceed to have issued the bonds to the amount of such subscription as herein before directed; "That, if preferred, the application herein authorized to be made to the county court may be made to the presiding judge of the county court; and all the powers herein given to the county court are hereby vested in the presiding judge of the county court. At all meetings of the stockholders for the purpose of electing officers, or any other purpose, the said town, cities, and counties may, by proxies duly authorized by the authorities thereof, cast a vote for each share so subscribed by said town, city, or county." The charter gives to the Cumberland & Ohio Railroad "all the powers and privileges conferred upon the Louisville & Nashville Railroad Company by the laws of Kentucky for constructing and operating their said proposed railroad." The charter of the Louisville & Nashville Railroad Company provides "that said railroad company may receive subscriptions of stock to their company by individuals, towns, cities, counties, or other corporations, whether payable in money or other things, with such terms and time of payment, conditions annexed, "Whereas the commissioners of the Cumberland & Ohio Railroad Company, by virtue of the authority delegated to them by the charter of said company, have requested the county court of Green county, to order an election in said county of Green, and to submit to the qualified voters of said county the question whether said county court shall subscribe for and on behalf of said county $250,000 to the capital stock of the Cumberland & Ohio Railroad Company, and payable in the bonds of said county, having twenty years to run, and bearing 6 per cent interest from date, and upon condition that said company shall locate and construct said railroad through said county of Green, and within 1 mile of the town of Greensburg, in said county, and shall expend the amount so subscribed within the limits of Green county; and also upon the further condition that said bonds shall not be issued or said county pay any part of the principal or interest on said amount subscribed to said Cumberland & Ohio Railroad Company, until said county of Green is fully and completely exonerated from the payment of the capital stock voted by said county, and authorized to be subscribed by said Green county court to the Elizabethtown & Tennessee Railroad, or any part of the interest thereon. It is therefore ordered by the court that an election, by the qualified voters of Green county, at the voting places in said county, be held and conducted by the several officers, as prescribed by law, for holding elections, on the 3d day of July, 1869, to vote on the question as to whether or not the said county court shall, for and on behalf of said county, subscribe $250,000 to the capital stock of said Cumberland & Ohio Railroad, conditioned and to be paid as above stated." The election was duly held July 3, 1869, and the vote was in the affirmative. During the year before this vote the voters of the county had voted in favor of a proposition to subscribe to the stock of the Elizabethtown & Tennessee Railroad, thereupon the county judge had ordered the clerk of his court to make a subscription to the stock of the Elizabethtown & Tennessee Railroad Company, "on the terms specified in the order submitting the question to a vote." This |