REPORTS OF THE SUPREME COURT UNITED STATES. OF THE CASES ARGUED AND ADJUDGED IN THE SUPREME COURT OF THE UNITED STATES. October Term, 1881. REPORTED BY WILLIAM T. OTTO. Vol. XV. BOSTON: LITTLE, BROWN, AND COMPANY. 1882. UNITED STATES REPORTS, SUPREME COURT. Vol. 105. Entered according to Act of Congress, in the year 1882, by LITTLE, BROWN, AND COMPANY, In the Office of the Librarian of Congress, at Washington. University Press : John Wilson and Son, Cambridge. JUSTICES OF THE SUPREME COURT OF THE UNITED STATES DURING THE TIME OF THESE REPORTS. CHIEF JUSTICE. HON. MORRISON R. WAITE. ASSOCIATES. Hon. Samuel F. Miller. Hon. Joseph P. Bradley. Hon. William B. Woods. Hon. Horace Gray. Hon. Stephen J. Field. Hon. John M. Harlan. Hon. Stanley Matthews. Hon. Samuel Blatchford. ATTORNEY-GENERAL. Hon. Benjamin Harris Brewster. SOLICITOR-GENERAL. Hon. Samuel Field Phillips. ALLOTMENT, ETC., OF THE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES, As made April 3, 1882. NAME OF THE JUSTICE, AND STATE FROM WHENCE AP- NUMBER AND TERRITORY OF DATE OF COMMISSION, AND POINTED. THE CIRCUIT. BY WHOM APPOINTED. CHIEF JUSTICE. FOURTH. 1874. Hon. M. R. WAITE, Maryland, West Vir- _ Jan. 21. Ohio. ginia, Virginia, N. President Grant. Carolina, and S. Carolina. associates. first. 1881. Hon. HORACE Maine, New Hamp- Dec. 20. GRAY, Massachusetts, shire, Massachu- President Arthur. SETTS, AND RHODE Island. SECOND. 1882. Hon. SAMUEL New York, Vermont, March 27. BLATCHFORD, N. Y. and Connecticut. President Arthur. third. 1870. Hon. J. P. BRADLEY, Pennsylvania, New March 21. New Jersey. Jersey, and Delà- President Grant, ware. fifth. 1880. Hon. Wm. B. WOODS, Georgia, Florida, ' Dec. 21. Georgia. Alabama, Missis- President Hayes, sippi,Louisiana,and Texas. sixth. 1881. Hon. STANLEY MAT- Ohio, Michigan, Ken- „ Ma? J,2- THEWS, Ohio. tucky, & Tennessee. President Garfield. SEVENTH. 1877. Hon. J. M. HARLAN, Indiana, Illinois, and Nov. 29. Kentucky. Wisconsin. President Hayes. EIGHTH. 1862. Hon. S. F. MILLER, Minnesota, Iowa, Mis- July 16. Iowa. souri, Kansas, Ar- President Lincoln. Kansas, Nebraska, and Colorado. ninth. 1863. Hon. S. J. FIELD, California, Oregon, March 10. California. and Nevada. President Lincoln. Mr. Justice Hunt, by reason of sickness, resigned during the term, before the cases reported in this volume were decided. The Hon. Samuel Blatchford, whose commission as an Associate Justice of this Court bears date March 27, 1882, took the oath of office in open court, April 3, 1882. He took no part in deciding the cases reported in this volume which precede Corbin v. Van Brunt, p. 576. MEMORANDA. The resignation of Mk. Justice Hunt gave rise to the following correspondence: — Supreme Court of the United States, Washington, March 4, 1882. Dear Judge Hunt, — Your resignation as one of our number having taken place just at the beginning of the February recess, we have had no opportunity until now of expressing to you our regret that your long-continued illness made such a step necessary. We have none of us forgotten how faithfully you labored, while health permitted, to perform your full share of the work that was constantly pressing upon us, and we cannot but feel that if you had been more careful of your strength and less determined to do all of what you conceived to be your duty, the necessity for this separation would not have existed. Your absence from the bench has not taken from us the recollection of your conscientious service while there, nor of your uniform kindness and courtesy everywhere and on all occasions. With sincere regard we remain your friends and former associates, M. R. Waite, Sam. F. Miller, Stephen J. Field, Joseph P. Bradley, John M. Harlan. 1733 De Sales Street, Washington, D. C., March 25, 1882. My dear Chief Justice, — It is some weeks since I have received your letter, but I have been unwell and unable to write until now. You and Mr. Justices Miller, Field, Bradley, and Harlan, who were with me on the Supreme Court Bench, have my warmest thanks for your kind expression of sympathy in my protracted illness and of regret at our separation. I feel a grateful sense to you for the patience and unfailing kindness and cheerfulness with which you have borne the increased labor my illness has caused you. Now, by the addition of Justices Wood, Matthews, Gray, and MEMORANDA. Blatchford, the Bench has renewed strength, and your labor will be lightened. I shall ever retain the recollection of our pleasant intercourse, both official and social. With the best wishes for your happiness and prosperity, I remain, my dear Sir, ever gratefully, Ward Hunt. Mr. Chief Justice Waite, and Justices Miller, Field, Bradley, and Harlan. TABLE OF CASES. Page Ager y. Murray................................. 126 Amoskeag Bank v. Ottawa......................, . 667 Asylum v. New Orleans...........................362 Attril, Oglesby v................ 605 Bantz v. Frantz.................................160 Bartholow v. Trustees...................... . . 6 Beef-Canning Company, Packing Company v.........566 Bennecke v. Insurance Company...................355 Black Hawk, County of, Corbin v....•............659 Blennerhassett v. Sherman.......................100 Blessing, Leathers v............... 626 Board of Liquidation, Guaranty Company v........622 Boughton, Hecht y...............................235 Boyd, Ex parte............................... . 647 Boyle, Chatfield v. . . . ......................231 Bradley, Manufacturing Company v................175 Brandies v. Cochrane ...........................262 Bridge v. Excelsior Company.....................618 Bridge Company v. United States.................470 Britton v. Evansville Bank......................322 Brooklyn, Guidet v. ... ,. . ...................550 Bruce, Insurance Company v.................... 328 Buchanan, Hitchcock y...........................416 Burley y. Flint ................................247 Burnett, Sullivan y.............................334 Butler, Gordon y.............................. 553 Carite y. Trotot................................751 Carli, United States y..........................611 xii TABLE OF CASES. Page Catlettsburg, Packet Company y..........................559 Clapp, Packing Company v................................576 Clark y. Fredericks . . ................................. 4 Chatfield v. Boyle......................................231 Cochrane, Brandies y. . . ,.............................262 Commissioners, Lewis y..................................739 Corbin y. County of Black Hawk..........................659 Corbin y. Van Brunt ....................................576 County of Black Hawk, Corbin y..........................659 County of Dodge, Davenport y....................... . 237 County of Moultrie y. Fairfield.........................370 County of Ralls y. Douglass.............................728 Cowing, Manufacturing Company v. ... ...................253 Davenport y. County of Dodge............................237 Dodge, County of, Davenport y...........................237 Douglass, County of Ralls y. . . .......................728 Dowell y. Mitchell......................................430 Duke, Rives y....................................... 132 Ellerman, Railroad Company y. ..........................166 Emholt, United States y. ..... .........................414 Ericsson, Manchester ...................................347 Evansville Bank y. Britton............................ 322 Ex, parte Boyd..........................................647 Ex parte Hoard........................................ 578 Ex parte Mason..........................................696 Ex parte Slayton........................................451 Excelsior Company, Bridge y. ........... 618 Exchange Bank, Hills ...................................319 Fairfield, County of/Moultrie y. .......... 370 Farley, Russell y. ..............................,. . 433 Farr, Keyser y....................................... 265 Fauntleroy, Hannibal y. . . ............................408 Field, Smith ............................................52 Flanders y. Seelye .....................................718 Flint, Burley y..................................... 247 Foley, Insurance Company y......................... . 350 «Francis Wright,” The.............................. . 381 Frantz, Bantz ..........................................160 TABLE OF CASES. XÜi Page Fredericks, Clark v.................................. 4 Freight Company, Greenwood v.........................13 Frellsen, Marchand v................................423 French, Lincoln v...................................614 French v. Gapen.................................. . 509 Gapen, French v. ................................. 509 Gapen, Spears v. . . ...............................509 Gordon v. Butler................................... 553 Granite Company, United States v.....................37 Greenough, Trustees v...............................527 Greenwood v. Freight Company.........................13 Guaranty Company v. Board of Liquidation.......... 622 Guidet v. Brooklyn..................................550 Hammock v. Loan and Trust Company....................77 Hannibal v. Fauntleroy........................... . 408 Hargrave, Head y...................... 45 Harrison, Hauselt y............................... 401 Harvey y. United States . . . . . ....... . 671 Hauselt y. Harrison.................................401 Head y. Hargrave................................... 45 Hecht y. Boughton ...... :..........................235 Hewitt v. Phelps.................................. 393 Higgins, Loom Company v. ...........................580 Hills y. Exchange Bank . . . .......................319 Hitchcock y. Buchanan............................. 416 Hoagland, Iron Company y............................701 Hoagland, Wurts y...................................701 Hoard, Ex parte................................... 578 Holthaus, Lehnbeuter y............................. 94 Hunt, United States y........,......................183 Insurance Company, Bennecke y.......................355 y. Bruce...........................328 «• Foley.......................... 350 Iron Company, New Buffalo y......................... 73 Iron Company y. Hoagland...........'. ............701 James y. McCormack..................................265 Johnson y. Railroad Company.........................539 xiv TABLE OF CASES. Page Kent, Upton v...........................................646 Keyser v. Farr..........................................265 Knox, McCormick v.......................................122 Leathers v. Blessing....................................626 Leffingwell, Swope ».................................... 3 Lehnbeuter ». Holthaus...................................94 Lewis y. Commissioners................................. 739 Lincoln y. French.................................. . 614 Lincoln County Court ». United States ..................739 Loan and Trust Company, Hammock y................ . . 77 Loftin, Railroad Company y..............................258 Loom Company ». Higgins.................................580 Louisiana v. Pilsbury...................................278 Louisiana v. Taylor.....................................454 Machine Company, Mathew's v............•.................54 Mail Line Company, Pollard y.............................12 “Mamie,” The............................................773 Manchester y. Ericsson..................................347 Manufacturing Company ». Bradley........................175 Manufacturing Company y. Cowing.........................253 Marchand ». Frellsen . ... ........................423 Marsh ». McPherson......................................709 Mason, Ex, parte...................................... 696 Mathews y. Machine Company...............................54 McCormack, James »......................................265 McCormick v. Knox.................................'. . 122 McLaughlin, Upton y...................................640 McPherson, Marsh »......................................709 Mitchell ». Dowell . .................................. 430 Morris, New Orleans ».............................. . 600 Moultrie, County of, ». Fairfield.......................370 Murray, Ager y..........................................126 National Bank ». Watsontown Bank........................217 National Bank, Ottawa »................................ 342 New Buffalo ». Iron Company . . ........................73 New Orleans, Asylum »...................................362 New Orleans ». Morris...................................600 Nixon ». Paper-Bag Machine Company......................766 TABLE OF CASES. XV Page Ogle, Simmons v....................................... 271 Oglesby v. Attrill.....................................605 Ottawa, Amoskeag Bank v.............. 667 Ottawa v. National Bank...............................342 Packet Company v. Catlettsburg........................559 Packing Company Cases.................................566 Packing Company v. Beef-Canning Company...............566 v. Clapp.......................... . 576 y. Provision Company................... 566 Paper-Bag Cases........................................766 Paper-Bag Machine Company y. Nixon.....................766 Phelps, Hewitt y.......................................393 Pilsbury, Louisiana y.................................278 Pollard y. Mail Line Company............................ 12 Pollard y. Vinton....................................... 7 Post y. Supervisors ................................. 667 “ Potomac,” The........................................630 Provision Company, Packing Company y...................566 Railroad Company y. Ellerman...........................166 Johnson y.............................539 y. Loftin.............................258 Scheffer y............................249 United States y.......................263 Railway Company, Root y............................ . 189 Ralls, County of, y. Douglass . . . ’..................728 Ralls County Court y. United States....................733 Richards, Venable y....................................636 Rindskopf, United States y.............................418 Rives y. Duke........................................ 132 Rockwell, Thatcher y...................................467 Root y. Railway Company.............................. 189 Russell v. Farley......................................433 Russell y. Stansell....................................... “ S. C. Tryon,” The.................................. 267* “ S. S. Osborne,” The................................ 447 Scheffer y. Railroad Company...........................249 “ Scotland,” The........................................24 Scovill y. Thayer.................................... 143 Xvi TABLE OF CASES. Page Seelye, Flanders y. ..... . . . , . ... . . . 718 Sherman, Blennerhassett v.................................100 Simmons v. Ogle . . .................................... 271 Slayton, Ex parte ........................................451 Smith y. Field.............................................52 Smith, United States v. .............................620 Spears y. Gapen......................................... 509 Stanley, Supervisors y. . . . .......................... 305 Stansell, Russell y................................... . 303 Steamship Company, Young y. ...............................41 Stevenson y. Texas Railway Company .......................703 Stoddart, Warren y...................................... 224 Sullivan y. Burnett..................................... 334 Supervisors, Post y...................................... 667 Supervisors y. Stanley ............................... . 305 Swift Company y. United States...........................691 Swope y. Leffingwell...................................... 3 Taylor, Louisiana y..' ....................... . . . . 454 Taylor y. Ypsilanti........................................60 Telegraph Company y. Texas.............................. 460 Temple, United States y................................... 97 Texas, Telegraph Company y. . . ..........................460 Texas Railway Company, Stevenson y. . . . . . . . . 703 Thatcher y. Rockwell,.....................................467 Thayer, Scovill y........................................ 143 The “Francis Wright” . 381 The “Mamie”............................................ 773 The “ Potomac ”...........................................630 The “ S. C. Tryon”........................................267 The “ S. S. Osborne ”.....................................447 The “ Scotland ”......................................... 24 Trotot, Carite y................................... . . 751 Trustees, Bartholow y.................................... 6 Trustees y. Greenough................................... 527 Tyler, United States .....................................244 United States, Bridge Company ..................... . . 470 y. Carli.................................. 611 y. Emholt............................... . 414 v. Granite Company............... . . . 37 TABLE OF CASES. xvii Page United States, Harvey v.................................671 v. Hunt...................................183 Lincoln County Court v....................739 v. Railroad Cchnpany......................263 Ralls County Court v......................733 v. Rindskopf..............................418 v. Smith..................................620 Swift Company v...........................691 v. Temple..................................97 v. Tyler..................................244 Upton v. Kent.......................................... 646 Upton y. McLaughlin.....................................640 Van Brunt, Corbin y.................................... 576 Venable y. Richards.....................................636 Vinton, Pollard y........................................ 7 Wade y. Walnut........................................... 1 Walnut, Wade y........................................... 1 Warren y. Stoddart......................................224 Watsontown Bank, National Bank y. ......................217 Wurts y. Hoagland.......................................701 Young y. Steamship Company...............................41 Ypsilanti, Taylor y......................................60 VOL. xv. 6 TABLE OF CASES CITED BY THE COURT. Page Adams v. Burke, 17 Wall. 453 771 Adie v. Prudhomme, 16 La. Ann. 343 611 Alley v. Hawthorn, 1 La. Ann. 122 426 Amy v. Dubuque, 98 U. S. 470 153 Angell v. Davis, 4 Myl. & Craig, 360 528 ------v. Draper, 1 Vern. 399 653 Anthony v. County of Jasper, 101 U. S. 693 750 ------v. Stinson, 4 Kan. 211 50 Arnold v. Foote, 7 B. Mon. (Ky.) 66 126 Ashcroft v. Walworth, 1 Holmes, 152 131 Atherton v. Fowler, 91 U. S. 143 702 Attorney-General v. Kerr, 4 Beav. 297 533 ------v. Old South Society, 10 Allen (Mass.), 474 533 ------v. The Brewers’ Company, 1 P. W. 376 533 Atwood v. Weems, 99 U. S. 183 321 Austin v. The Aidermen, 7 Wall. 694 313 Ayres v. Duprey, 27 Tex. 593 708 Babbitt v. Clark, 103 U. S. 606 580 Bailey v. Birkenhead, Lancashire, & Cheshire Junction Railway Co., 12 Beav. 433 610 ------v. Glover, 21 Wall. 342 642 ---------------------------------------v. Taylor, 1 Russ. & M. 73 209,432 Baker v. Atlas Bank, 9 Mete. (Mass.) 182 158 Ball v. Langles, 102 U. S. 128 547 Bank v. Railroad Co., 5 S. C. 156 180 Bank of the United States v. Halstead, 10 Wheat. 51 651 --------- v. Housman, 6 Paige (N. Y.). 626 118 ------v. Moss, 6 How. 31 667 Page Barker v. Wardle, 2 Myl. & K. 818 534 Barney v. Baltimore City, 6 Wall. 280 180 Bath County v. Amy, 13 Wall. 244 243 Bay City v. State Treasurer, 23 Mich. 499 62, 75 Beaver v. Taylor, 93 U. S. 46 646 Bedard v. Hall, 44 III. 91 669 Beers v. Haughton, 9 Pet. 329 651 Bein v. Heath, 12 How. 168 444 Benjamin v. Hillard, 23 How. 149 718 Bennett v. Hunter, 9 Wall. 326 321 Betts v. Gallais Law Rep. 10 Eq. 392 * 211 Bevin v. Conn. Mutual Life Insur- ance Co., 23 Conn. 244 360 Bevins v. Ramsey, 11 How. 185 416 Binz v. Tyler, 79 Ill. 248 418 ------v, Weber, 81 III. 288 669 Birdsall v. Coolidge, 93 U. S. 64 201 Bishop of Winchester v. Knight, 1 P. W. 406 208 Blair v. Reading, 99 III. 600 83 Blake v. McKim, 103 U. S. 336 578 Bloomer v. McQuewan, 14 How. 539 770 Bloxam v. Elsee, 1 Car. & P. 558 ; s. c Ry. & M. 187; 6 Barn. & Cress. 169 ; 9 D. & R. 215 128 Bond Debt Cases, 12 S. C. 200 180 Bonnifield n. Price, 1 Wy. 173 645 Boston Water Power Co. v. Bos- ton & Worcester Railroad Cor- poration, 23 Pick. (Mass.) 360 22 Bostwick v. Gasquet, 11 La. 534 760 Bowman v. McChesney, 22 Gratt. (Va.) 609 142 Boyle v. Zacharie, 6 Pet. 648 651 Bozman v. Draughan, 3 Stew. (Ala.) 243 118 Bradley v. Rhines’ Admrs., 8 Wall. 393 667 Bradstreet, Ex parte, 7 Pet. 633 579 XX TABLE OF CASES CITED. Brady v. Briscoe, 2 J. J. Marsh. (Ky.) 212 118 Bridge Proprietors v. Hoboken Co., 1 Wall. 116 702 Brine v. Insurance Co., 96 U. S. 627 88,247 Brinkerhoff v. Brown, 4 Johns. (N. Y.) Ch. 671 653 Bronson v. Kinzie, 1 How. 311 603 Brooklyn v. Insurance Co., 99 U. S. 362 333 Brooklyn Park Co. v. Armstrong, 45 N. Y. 235 288 Brown v. Maryland, 12 Wheat. 419 465 Brush v. Administrators of Reeves, 3 Johns. (N. Y.) 439 346 Bryan v. Forsyth, 19 How. 334 671 Bunn v. Ahl, 29 Pa. St. 387 118 Burbank v. Bigelow, 92 U. S. 179 469 Burdell v. Denig, 92 U. S. 716 199 Burke v. Smith, 16 Wall. 390 154 Bushnell v. Kennedy, 9 Wall. 387 666 Calbreath v. Virginia Porcelain Co., 22 Gratt. (Va.) 697 142 Callan v. May, 2 Black, 541 416 Cannon v. New Orleans, 20 Wall. 577 172, 465, 562 Canter v. American & Ocean In- surance Co., 3 Pet. 307 437, 772 Carling, Hespeler, and Walsh’s Cases, 1 Ch. D. 115 154 Carpenter v. . Farnsworth, 106 Mass. 561 417 Carver v. Peck, 131 Mass. 291 131 Case v. Bank, 100 U. S. 446 221 Case of the State Freight Tax, 15 Wall. 232 313, 465 Catlin v. Bennatt, 47 Tex. 165 708 Cawood Patent, 94 U. S. 695 202 Central Bridge Corporation v. City of Lowell, 4 Gray (Mass.), 474 22 Central Railroad v. Wren, 43 Ill. 79 670 Chadsey v. McCreery, 27 Ill. 253 377 Chaffee v. Boston Belting Co., 22 How. 217 770 Chancellor of Oxford’s Case, 10 Rep.53 377 Chicago v. Sheldon, 9 Wall. 50 295 Chicago & Iowa Railroad Co. v. Pinckney, 74 Ill. 277 375 Christy v. Pridgeon, 4 Wall. 196 294 Chubb v. Upton, 95 U. S. 665 149 City of Georgetown v. Alexandria Canal Co., 12 Pet. 91 174 City of Lafayette v. Cummins, 3 La. Ann. 673 292 City of Lexington v. Butler, 14 Mass. 282 374 City of New Orleans v. New Orleans, Mobile, & Chattanooga Railroad Co., 27 La. Ann. 414 171 ------v. Wilmot, 30 La. Ann. 65 173 City of St. Louis v. Shields, 62 Mo. 247 730 Clark v. Wilson, 103 Mass. 219 634 Clifton v. United States, 4 How. 242 416 Coates v. Gerlech, 44 Pa. St. 43 118 Coffin v. Reynolds, 37 N. Y. 640 645 Colburn v. Simms, 2 Hare, 543 194 Coleman v. Riches, 16 C. B. 104 11 -------v. Tennessee, 97 U. S. 509 699 Combs v. Scott, 12 Allen (Mass.), 493 360 Comegys v. Vasse, 1 Pet. 193 634 Commonwealth v. Bean, 11 Cush. (Mass.) 414 613 ------v. Bean, 14 Gray (Mass.), 52 613 -------v. Clifford, 8 Cush. (Mass.) 215 613 -------v. Cochituate Bank, 3 Allen (Mass.), 42 158 ------v. Filburn, 119 Mass. 297 613 -----------------------------------v. The Proprietors of New Bedford Bridge, 2 Gray (Mass.), 339 504 Cook v. Pennsylvania, 97 U. S. 566 465 -------v. Tullis, 18 Wall. 332 406 Cooley v. Board of Wardens, 12 How. 299 563 Cooper v. Gunn, &c., 4 B. Mon. (Ky.) 594 131 -------v. Reynolds, 10 Wall. 308 429 Cope v. Doherty, 4 Kay & J. 367 ; s. c. 2 De G. & J. 614 31 Corporation of New York v. Ran- som, 23 How. 487 197 Cottman v. Ratliff, 20 La. Ann. 179 426 County Commissioners v. Chandler, 96 U. S. 205 242 County of Callaway v. Foster, 93 U. S. 567 458, 731 County of Cass v. Gillett, 100 U. S. 585 458, 731 ' v. Johnston, 95 U. S. 360 242 County of Greene v. Daniel, 102 U. S. 187 242 County of Henry v. Nicolay, 95 U. S. 619 458, 731 County of Macon v. Shores, 97 U. S. 272 730 County of Mobile v. Kimball, 102 U. S. 691 492 County of Morgan v. Allen, 103 U. S. 498 152 County of Moultrie v. Rockingham Ten-cent Savings Bank, 92 U. S. 631 3 County of Randolph v. Post, 93 U. S. 502 3 County of Ray v. Vansycle, 96 U. S. 675 458 County of Schuyler v. Thomas, 98 U. S. 169 458 TABLE OF CASES CITED. xxi County of Scotland v. Thomas, 94 U. S. 682 76, 458, 731 County of Tipton v. Locomotive Works, 102 U. S. 523 76 Cowdrey v. Galveston, &c. Railroad Co., 93 U. S. 352 536 Crandall v. State of Nevada, 6 Wall. 35 465, 563 Crease v. Babcock, 23 Pick. (Mass.) 334 18 Crenshaw v. Slate River Co., 6 Rand. (Va.) 245 501 Crossley v. Beverly, Web. P. C. 119 210 Cummings v. National Bank, 101 U. S. 153 319 Currie’s Case, 3 De G., J. & S. 367 154 Curry v. Woodward, 53 Ala. 371 155 Cushing & Co. v. Worrick, 9 Gray (Mass.), 382 84 Dale v. McEvers, 2 Cow. (N. Y.) 118 126 Daniels v. Eldredge, 118 Mass. 356 129 Darnley (Earl) v. London, Chatham, & Dover Railway Co., Law Rep. 2 H. L. 43 360 Darrell v. Tibbitts, 5 Q. B. D. 560 635 Davenport v. Rylands, Law Rep. 1 Eq. 302 210 Davis v. Friedlander, 104 U. S. 570 -469 Davock v. Darcy, 6 Rob. 342 763 Dean v. Hall, 17 Wend. (N. Y.) 214 346 ------v. Mason, 20 How. 198 195 Deshler v. Dodge, 16 How. 622 666 Demarest v. Hopper, 2 Zab. 623 702 Devine v. People, 100 Ill. 290 83 De Vitre v. Betts, Law Rep. 6 H. L. 319 212 De Witt v.Harvey, 4 Gray (Mass.), 486 523 Dickenson v. Jardine, Law Rep. 3 C. P. 639 635 Diehl v. Adorns County Mutual In-surance Co., 58 Pa. St. 443 360 Dillon v. Barnard, 21 Wall. 430 418 Doe v. Martin, 4 T. R. 65 84 Douglass v. County of Pike, 101 U. S. 677 72, 295 •-----v. Pike County, 101 U. S. 687 732 Drake v. Rice, 130 Mass. 410 129 Draper v. Davis, 102 U. S. 370 262, 266 Duncan v. Darst, 1 How. 301 651 ■-----v. Gigan, 101 U. S. 810 386 Dunnovan v. Green, 57 Ill. 63 669 Durousseau v. United States, 6 Cranch, 307 385 Dynes v. Hoover, 20 How. 65 701 East Saginaw Manuf. Co. v. City of East Saginaw, 19 Mich. 259 65 Eastern Counties Railway v. Hawkes, 5 H. L. Cas. 331 148 Edelsten v. Vick, 11 Hare, 78 128 Edgell v. Haywood and Dawe, 3 Atk. 352 654 Edmeston v. Lyde, 1 Paige (N. Y.), 637 129 Edwards’s Lessee v. Darby, 12 Wheat. 206 695 Elastic Fabrics Co. v. Smith, 100 u. S. 110 437, 772 Elizabeth v. Pavement Co., 97 U. S. 126 202 Ellerman v. McMains, 30 La. Ann., pt. 1, 190 172 Empire v. Darlington, 101 U. S. 87 76 Equitable Insurance Co. v. Hearne, 20 Wall. 494 688 Erie Railway Co. v. Pennsylvania, 15 Wall. 282 313 Erie & N. E. Railroad Co. v. Casey, 26 Pa. St. 287 18 Eureka Company v. Bailey Company, 11 Wall. 488 204 Eyster v. Gaff, 91 U. S. 521 469 Fairfield v. County of Gallatin, 100 U. S. 47 3, 295, 375 Farmers’ Bank v. Douglass, 11 Smed. & M. (Miss.) 469 118 Fenn v. Holme, 21 How. 481 207 Ferry Company, Ex parte, 104 U. S. 519 580 Fertilizing Co. v. Hyde Park, 97 U. S. 659 148 Fletcher v. Peck, 6 Cranch, 87 20 Force v. Batavia, 61 Ill. 99 669 Freeman v. Howe, 24 How. 450 82 French v. Edwards, 13 Wall. 506 614 --------v. Howard, 3 Bibb (Ky.), 301-----432 Fretz v. Bull, 12 How. 466 634 Garfielde v. United States, 93 U. S. 242 688 Garrison v. Memphis Insurance Co., 19 How. 312 634 Garth v. Cotton, 1 Dick. 183 216 Garvin v. Wiswell, 83 Ill. 215 345 Gavinzel v. Crump, 22 Wall. 308 142 Geiger’s Estate, 65 Pa. St. 311 84 Gelpcke v. City of Dubuque, 1‘Wall. 175 295 General Iron, &c. Co. v. Schürmanns, 1 Johns. & H. 180 31 General Mutual Insurance Co. v. Sherwood, 14 How. 851 636 Giant Powder Co. v. Cal. Vigorit Powder Co., 6 Sawyer, 508 547 Gibbons v. Ogden, 9 Wheat. 1 492 Gifford v. Helms, 98 U. S. 248 643 xxii TABLE OF CASES CITED. Gilkeson v. The Frederick Justices, 13 Gratt. (Va.) 577 296 Gill v. Griffith & Schley, 2 Md. Ch. 270 119 Gillette v. Bate, 86 N. Y. 87 131 Gilman v. Philadelphia, 3 Wall. 713 475, 563 Goddard v. Ordway, 101 U. S. 745 266 Goodyear v. Day, 2 Wall. Jr. 283 205 Gordon v. Anthony, 16 Blatchf. 234 131 ------v. Cornes, 47 N. Y. 608 314 Grace v. Wade, 45 Tex. 522 707 Gragg v. Martin, 12 Allen (Mass.), 498 118 Graham v. Norton, 15 Wall. 427 243 Grant v. Norway, 10 C. B. 665 11 ------v. Raymond, 6 Pet. 218 588 Gray v. James, Pet C. Ct. 394 588 Green v. Biddle, 8 Wheat. 1 603 Gregg v. Forsyth, 24 How. 179 671 Gregory v. Morris, 96 U. S. 619 405 Grigsby v. Purcell, 99 U. S. 505 451 Grimes v. Hobson, 46 Tex. 416 708 Grob v. Cushman, 45 Ill. 119 669 Gue v. Tide Water Canal Co., 24 How. 257 90 Guy v. Baltimore, 100 U. S. 434 562 Hackett v. Ottawa, 99 U. S. 86 343 Hadden v. Spader, 20 Johns. (N. Y.), 554 653 Hafner v. Erwin, 1 Ired. (N. C.) L. 490 119 Hagan v. Lucas, 10 Pet. 400 82 Hale Bank v. Merchants’ Bank of Baltimore, 10 Mo. 123 730 Hall & Long v. Railroad Companies, 13 Wall. 367 634 Hamilton v. Steamer R. B. Hamilton, 16 Ohio St 428 84 Handy v. Sterling, 1 La. Ann. 308 762 Happel v. Brethauer, 70 Ill. 166 670 Harbaugh v. Winsor, 38 Mo. 327 730 Harper v. Ely, 70 Ill. 581 126 Hart v. Foley, 1 Rob. (La.) 378 755 Harter v. Kernochan, 103 U. S. 562 76 Hartman v. Greenhow, 102 U. S. 672 288 Havemeyer v. Iowa County, 3 Wall. 294 295 Hawes v. Oakland, 104 U. S. 450 16 Hecht v. Boughton, infra, 235 263 Henderson v. The Mayor, 92 U. S. 259 465 Hendricks v. Robinson, 2 Johns. (N. Y.) Ch. 283 653 Hendrie v. Sayles, 98 U. S. 546 204 Hepburn v. The School Directors, 23 Wall. 480 326 Herndon v. Howard, 9 Wall. 664 469 Hesse v. Stevenson, 3 Bos. & Pul. 565 128 Heyman v. The Sheriff, 27 La. Ann. 193 760 Higginbotham v. Hawkins, Law Rep. 7 Ch. App. 676 209 Hilb v. Peyton, 22 Gratt. (Va.) 550 142 Hilborn v. Artus, 4 Ill. 344 344 Hildeburn v. Brown, 17 B. Mon. (Ky.) 779 120 Hildreth v. Sands, 2 Johns. (N. Y.) Ch. 35 118 Hilliard v. Cagle, 46 Miss. 309 118 Hills v. Exchange Bank, infra, 319 322 Hilton v. Woods, Law Rep. 4 Eq. 432 209 Hipp v. Babin, 19 How. 271 212 Hoboken Building Association v. Martin, 2 Beas. (N. J.) 427 377 Holbrook v. Connor, 60 Me. 578 557 Holmes v. Barbin, 13 La. Ann. 474 761 ------v. Penney, 3 Kay & J. 90 117 Home, of the Friendless v. Rouse, 8 Wall. 430 368 Homer v. Brown, 16 How. 354 651 Hotchkiss v. Greenwood, 11 How. 248 572 Hubbersty v. Ward, 8 Exch. Rep. 330 11 Hudson v. Osborne, 39 L. J. n. s. Ch. 79 128 Humboldt Township v. Long, 92 U. S. 642 374 Hungerford v. Earle, 2 Vern. 261 118 Hurley v. Jones, 97 U. S. 318 265 Hyde v. Ruble, 104 U. S. 407 578 Illinois Central Railroad Co. v. Wren, 43 Ill. 79 669 In re Paschal, 10 Wall. 483 533 In re Williams, 2 Bank. Reg. 28 534 Inman Steamship Co. v. Tinker, 94 U. S. 238 465 Insurance Company v. Comstock, 16 Wall. 258 579 ------v. Tweed, 7 Wall. 44 251 In the Matter of O’Hara, 8 Law Reg. n. s. 113 534 In the Matter, &c., Village of Middleton, 82 N. Y. 196 314 James v. Campbell, 104 U. S. 356 547 Jegon v. Vivian, Law Rep. 6 Ch. App. 742 209 Jerome v. M’Carter, 94 U. S 734 469 Jesus College v. Bloom, 3 Atk. 262 208, 216 Jifkins v. Sweetzer, 102 U. S. 177 395 Johnson v. County of Stark, 24 Ill. 75 345 Johnston v. Laflin, 103 IT. S. 800 221 Jones v. La Vallette, 5 Wall. 579 416 ------v. League, 18 How. 76 180 ----------------------------------v. Morehead, 1 Wall. 155 197 ----------------------------------—• v. Morgan, 6 La. Ann. 630 761 TABLE OF CASES CITED. xxiii Kansas City, &c. Railroad Co. v. Alderman, 47 Mo. 349 731 Kayser v. Trustees of Bremen, 16 Mo. 88 730 Keith v. Kellogg, 97 Ill. 147 83 Kelsey v. Forsyth, 21 How. 85 416 Kempner v. Churchill, 8 Wall. 262 118 Kerr v. Clampitt, 95 U. S. 188 47 Ketchum v. St. Louis, 101 U. S. 306 523 King v. Worthington, 104 IT. S. 44 396 Landry v. Victor, 30 La. Ann. Part 2, 1041 428 Langston v. South Carolina Railroad Co., 2 S. C. 248 180 Larkins ». Paxton, 2 Myl. & K. 320 ' 534 Lathrop v. Kneeland, 46 Barb. (N. Y.) 432 150 Lee County v. Rogers, 7 Wall. 181 295 Levistones v. Brady, 11 La. Ann. 696 760 Lincoln v. Laflin, 7 Wall. 132,137 422 Lippincott v. Town of Pana, 92 111. 24 375 Littlefield v. Perry, 21 Wall. 205 199, 771 Livingston v. Van Ingen, 1 Paine, 45 191 ------v. Woodworth, 15 How. 546 194 Loan Association v. Topeka, 20 Wall. 655 379, 736 Longino v. Blackstone, 4 La. Ann. 513 762 Longman v. Tripp, 2 New Rep. 67 128 Loring, Ex parte, 94 U. S. 418 580 Louisiana v. New Orleans, 102 U. S. 203-207 301 Louisville v. Savings Bank, 104 U. S. 469 3 Lowell v. Lewis, 1 Mason, 182 588 Lynde v. The County, 16 Wall. 6 374 Mackley’s Case, 1 Ch. D. 247 150 Mainwarring v. Templeman, 51 Tex. 205 708 Marcy v. Township of Oswego, 92 U. S. 637 374, 379 Marquis of Downshire v. Lady Sandys, 6 Ves. Jr. 107 438 Marsh v. Seymour, 97 U. S. 348 202 Martin v. Porter, 5 Mee. & W. 351 209 ------v. Waddell, 16 Pet. 367 491 Massie v. Watts, 6 Cranch, 148 131 Mawman v. Tegg, 2 Russ. 385 128 Mayor of Baltimore v. Connells- ville & Pittsburg Railroad Co., 4 Am. Law Reg. n. s. 750 505 Mayor, &c. of Liverpool v. Chorley Water-works Co., 2 De G., M. & G. 852 174 Mays v. Fritton, 20 Wall. 414 646 M’Clung v. Ervin, 22 Gratt. (Va.) 519 142 McCracken v. Hayward, 2 How. 608 603, 651 McCready ». Virginia, 94 U. S. 391 491 McCreery’s Lessee ». Somerville, 9 Wheat. 354 340 McCulloch v. Maryland, 4 Wheat. 316 466 M’Dermutt ». Strong, 4 Johns. (N. Y.) Ch. 687 129 ------».-------, 2 Johns. (N. Y.) Ch. 687 653 McDonald ». Snelling, 14 Allen (Mass.), 290 252 McGee ». Mathis, 4 Wall. 143 261 ------».-------, 21 Ark. 40 261 McGehee ». Mathis, 21 Ark. 40 296 M’Henry ». La Société' Française, &c., 95 U. S. 58 469 McKinney ». McKinney, 8 Ohio St. 423 645 McLaren ». Pennington, 1 Paige (N. Y.), 102 21 McLean & Hope ». Fleming, Law Rep. 2 II. of L. (Sc.) 128 11 Mechanics’ Bank ». N. Y. & N. H. Railroad Co., 13 N. Y. 599 148 Menasha ». Hazard, 102 U. S. 81 76 Merryfield ». Jones, 2 Curt. C. C. 306 445 Meyer ». Smith, 24 La. Ann. 153 764 Middleport ». Ætna Life Ins. Co., 82 Ill. 562 375 Miller ». Brass Co., 104 U. S. 350 58, 166, 547 ------». Goodwin, 70 Ill. 659 669 ----------------------------------v. Mariners’ Church, 7 Me. 51 229 Milwaukee & St. Paul Railway Co. ». Kellogg, 94 U. S. 469 251 Miners’ Bank ». United States, 1 Greene (Iowa), 553 21 Mitchell ». Bunch, 2 Paige (N. Y.), ’ 606 653 ------». Hawley, 16 Wall. 544 771 Mock ». Kennedy, 11 La. Ann. 525 763 Mollan ». Torrance, 9 Wheat. 537 667 Morgan v. Powell, 3 Q. B. 278 209 Mountford ». Taylor, 6 Ves. Jr. 788 655 Mowry ». Whitney, 14 Wall. 620 197, 202 255 Mumford ». Ward well, 6 Wall.’ 423 491 Mumma ». Potomac Co., 8 Pet. 281 154 Municipality No. 2 ». White, 9 La. Ann. 446 • 292 Murdock ». Sumner, 22 Pick. (Mass.) 156 51 xxiv TABLE OF CASES CITED. Murray v. Charming Betsey, 2 Cranch, 64 36 Muse v. Yarborough, 11 La. 530 761 National Bank v. Kimball, 103 U. S. 732 320 -----— v. Matthews, 98 U. S. 621 4 ------v. Whitney, 103 U. S. 99 4 Nelson v. Carland, 1 How. 265 415 Neslin v. Wells, 104 U. S. 428 121 Nevins v. Johnson, 3 Blatchf. 80 206 New Albany v. Burke, 11 Wall. 96 154 New Jersey v. Yard, 95 U. S. 104 702 New Jersey Mutual Life Ins. Co. v. Baker, 94 U. S. 610 353 New Orleans v. Commercial Bank, 10 La. Ann. 735 296 New York & New Haven "Railroad Co. v. Schuyler, 34 N. Y. 30 11, 148 Nimmo v. Walker, 14 La. Ann. 581 155 North of England Insurance Association v. Armstrong, Law Rep. 5 Q. B. 244 635 Norton v. Phelps, 54 Miss. 467 394,400 ------v. Switzer, 93 U. S. 355 469 Norwich Co. v. Wright, 13 Wall. 104 28 Nostra Signora de los Dolores, 1 Dod. 297 31 Nourse v. Gregory, 3 Litt. (Ky.) 378 432 Novello v. James, 5 De G., M. & G. 876 442 Nugent v. The Supervisors, 19 Wall. 241 76 Ogilvie v. Knox Insurance Co., 22 How. 387 154 Ohio Life Ins. Co. v. Debolt, 16 How. 416, 432 71 Oliver v. Alexander, 6 Pet. 143 233, 304 Olcott v. The Supervisors, 16 Wall. 678 70, 76, 295 Orr v. Hodgson, 4 Wheat. 453 338 ------v. Merrill, 1 Woodb. & M. 376 206 Owings v. Hull, 9 Pet. 607 360 Pacific Bank v. Robinson, 57 Cal. 520 131 Packet Co. v. Keokuk, 95 U. S. 80 562 ------v. St. Louis, 100 U. S. 423 562 ------v. Sickles, 19 Wall. 611 198 Page v. Foster, 7 N. H. 392 126 Palmer v. Allen, 7 Cranch, 550 651 Parks v. Booth, 102 U. S. 96 204 Parrott v. Palmer, 3 Myl. & K. 632 208 Parsons v. Bedford, 3 Pet. 433 206 Passenger Cases, 7 How. 283 465 Patterson v. Boston, 20 Pick. (Mass.) 159, 166 50 Paving Company v. Mulford, 100 U. S.147 233, 304 Pearce v. Mulford, 102 U. S. 112 572 Peck v. Jenness, 7 How. 612 82 Peete v. Morgan, 19 Wall. 581 485 Pelton v. National Bank, 101 U. S. 143 319 Penn v. Crockett, 7 Ann. 343 763 Pennsylvania College Cases, 13 Wall. 190 18 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 464 People v. Bond, 10 Cal. 563 288 ------v. Campbell, 8 Ill. 466----670 ---------------------------------v.-------------------------------Cassity, 46 N. Y 46------------314 ---------------------------------v.-------------------------------Dewolf, 62 Ill. 253------------669 ---------------------------------v.-------------------------------Dolan, 36 N. Y. 59-------------310 ---------------------------------v.-------------------------------Houghtaling, 7 Cal. 348--------215 —--------------------------------v. Salem, 20 Mich. 452 62, 75 - v. State Auditors, 9 Mich. 327 65 ------v. Weaver, 100 U. S. 539 315 Peters v. Dunnells, 5 Neb. 460 645 Phila., Wil., & Balt. Railroad Co. v. Phil. & Havre de Grace Steam Towboat Co., 23 How. 209 630 Pitts v. Whitman, 2 Story, 609 165 Plitt, Ex parte, 2 Wall. Jr. 453 535 Pollard’s Lessee v. Hagan, 3 How. 212 491 Pott v. Arthur, 104 U. S. 735 z 99 Pound v. Turek, 95 U. S. 459 475, 563 Powder Co. v, Burkhardt, 97 U. S. 110 405 -------v. Powder Works, 98 U. S. 126----547 Powell v. Aiken, 4 Kay & J. 343 208 Powlis v. Cook, 28 La. Ann. 546 764 Prescott v. Trustees of Illinois & Michigan Canal, 19 Ill. 324 670 Price v. Cole, 35 Tex. 461 708 ------v. Price, 10 Ohio St. 316 84 Price’s Pat. Candle Co. v. Bauwen’s Pat. Candle Co., 4 Kay & J. 727 210, 432 Prouty v. Draper, 1 Story, 568 165 ------v. Ruggles, 16 Pet. 336 165 Pudsey Coal Gas Co. v. Corporation of Bradford, Law Rep. 15 Eq. 167. 174 Pullman a. Upton, 96 U. S. 328 149 Pumpelly v. Green Bay Co., 13 Wall. 166 502 Quebec Assurance Co. v. St. Louis, 7 Moo. P. C. 286 635 Quigg v. Kittredge, 18 N. H. 137 155 Raiford v. Thom, 15 La. Ann. 81 760 Railroad Company v. County of Otoe, 16 Wall. 667 70, 75 TABLE OF CASES CITED. XXV Railroad Company v. Fuller, 17 Wall. 560 475 ------v. Georgia, 98 U. S. 359 21 ---------------------------------------v. Koontz, 104 U. S. 5-----------------579 ---------------------------------------v. Maine, 96 U. S. 499-----------------21 ---------------------------------------v. National Bank, 102 U.S. 14 75 ---------------------------------------v. Wiswall, 23.Wall. 507 579 Railroad Companies v. Schutte, 103 U. S. 118 312 Railway Company v. Allerton, 18 Wall. 233 148 ------v. Loftin, 98 U. S. 559 259 Redmond v. Burroughs, 63 N. C. 242 126 Removal Cases, 100 U. S. 457 578 Rich v. Lambert, 12 How. 347 233, 304 Richards v. Donagho^ 66 Ill. 73 2 Richmond, &c. Railroad Co. v. Louisa Railroad Co., 13 How. 71 22 Roberts v. Bolles, 101 U. S. 119 344 Robinson v. Bank of Darien, &c., 81 Ga. 65 155 --------- v. Gilbreth, 4 Bibb (Ky.), 183------432 ------v. Rett, W. & T. L. C. 238 537 ---------v. Ryan, 25 N. Y. 320 126 Roemer v. Simon, 95 U. S. 214 596 Rogers v. Burlington, 3 Wall. 654 69 Roosa v. Crist, 17 Ill. 450 344 Root v. Reynolds, 32 Vt. 139 118 Ross v. Duval, 13 Pet. 45 651 Rubber Co. v. Goodyear, 9 Wall. 788 _ 197, 203 Rubber-Tip Pencil Company v. Howard, 20 Wall. 498 572 Russell v. Butterfield, 21 Wend. N. Y. 300 229 ------v. Clarke, 7 Cranch, 69 432 Ryan v. Lynch, 68 Ill. 160 669 Sage v. Railroad Co., 96 U. S. 712 262 Salisbury v. Black’s Adm ’r, 6 Har. & J. (Md.) 293 155 Salomons v. Laing, 12 Beav. 339 148 Sanger v. Upton, 91 U. S. 56 152 Sawyer v. Hoag, 17 Wall. 610 152 ------v. Hoag, Assignee, 17 Wall. 610 154 Sayre v. Nichols, 7 Cal. 535 417 Scammon v. Kimball, 92 U. S. 362 152 Schall v. Bowman, 62 Ill. 321 2 Schooner Freeman v. Buckingham. 18 How. 182 10 Scrivenor v. Scrivenor, 7 B. Mon. (Ky.) 374 118 Seaver v. Bigelows, 5 Wall. 208 233 c , _r . . 304 Second Municipality of New Or- leans v. Duncan, 2 La. Ann. 182 290 Sere v. Pitot, 6 Cranch, 332 666 Seymour v. McCormick, 16 How. 480 105 Shelby v. Guy, 11 Wheat. 361 294 Shirley v. Watts, 3 Atk. 200 653 Silsby v. Foote, 20 How. 378 204 Simpson v. Thomson, 3 App. Cas. 279 634 ------v. ------, 3 App. Cas. 284 635 Sinking Fund Cases, 99 U. S. 700 21 Sinkler v. The Turnpike Company, 3 Pa. 149 155 Smith v. Condry, 1 How. 28 36 ------ v. Clarke County, 54 Mo. 58 459, 730, 731 ------v. Kernochen, 7 How. 198 180 ------v. London & Southwestern Railway Co., Kay, 408 209, 216 Smythe v. Fiske, 23 Wall. 374 695 Spader v. Hadden, 5 Johns. (N. Y.) Ch. 280, and 20 Johns. (N. Y.) 554 129 Sparhawk v. Cloon, 125 Mass. 263 129 Spires v. McKelvy, 23 La. Ann. 571 760 Stace & Worth’s Case, Law Rep. 4 Ch. App. 682 note 148 Stanton v. Hatfield, 1 Keen, 358 533 State v. County Court of Critten- den County, 19 Ark. 360 261 ------v. County Court of Sullivan County, 51 Mo. 522 731 ------v. Dallas County Court, 72 Mo. 329 737 ------v. Dodge County, 10 Neb. 20 241 v. Douglass, 50 Mo. 593 730 v. Garroute, 67 Mo. 445 731 ------------------------------------------------------------------------v. Greene County, 54 Mo. 540 731 ------v. Lathrop, 10 La. Ann. 398 296 ------v. Macon County Court, 41 Mo. 453 731 -------v. Rainey, 74 Mo. 229 734 v. Stoll, 17 Wall. 425----------638 ----------------------------------------------v. Thorne, 9 Neb. 458 240 State, ex rel., &c., v. Macon Countv Court, 41 Mo. 453 " 459 State, ex rel. Bankhead, v. Judge of the Fourth District Court, 22 La. Ann. 116 426 State of New Jersey v. Wilson, 7 Cranch, 164 792 State of Pennsylvania n. Wheeling, &c. Bridge Co., 18 How. 421 475, 480 State Tonnage Cases, 12 Wall. 204 465 Stephens v. Cady, 14 How. 528 129 Sterling v. Fusilier, 7 Mart. (La.) 442 727 Stevens v. Gladding, 17 How. 447 129, 193 Stewart v. Platt, 101 U. S. 731 406 Stileman v. Ashdown, 2 Atk. 477 653 Stimpson v. Woodman, 10 Wall. 117 572 Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80 209 Stockport District Water-works v. Mayor, &c. of Manchester, 9 Jur. n. s. 266 174 Storm v. United States, 94 U. S. 76, 81 644 xxvi TABLE OF CASES CITED. Stratton v. Jarvis, 8 Pet. 4 233, 304 Stringfellow v. Cain, 99 U. S. 610 236 Sturges v. Burton, 8 Ohio St. 215 645 Sturgis v. Clough, 1 Wall. 269 632 Succession of Hearing, 28 La. Ann. 149 762 Suffolk Company v. Hayden, 3 Wall. 315 198 Suitterlin v. The Connecticut Mu- tual Insurance Co., 90 Ill. 483 248 Sullivan v. Redfield, 1 Paine, 441 192 Supervisors v. Stanley, infra, 305 319, 322 Surgi v. Snetchman, 11 La. Ann. 387 293 Sutton v. Doggett, 3 Beav. 9 534 Swan v. Williams, 2 Mich. 427 63 Tacey v. Irwin, 18 Wall. 549 321 Tarback v. Marbury, 2 Vern. 510 121 Taylor v. Carryl, 20 How. 583 82 ------v. Dowlen, Law Rep. 4 Ch. App. 697 528 -------v. Read, 4 Paige (N. Y.), 561-----230 ------v. Ypsilanti, infra, 60 73 Terry v. Anderson, 95 U. S. 628 157 ------v. Hatch, 93 U. S. 44---------233 ------------------------------------v. Tubman, 92 U. S. 156 157 The Abbotsford, 98 U. S. 440 387 The Amiable Nancy, 3 Wheat. 546 36 The Ann C. Pratt, 1 Curt. C. C. 340 634 The Anna Maria, 2 Wheat. 327 36 The Carl Johan, 1 Hagg. Adm. 109, 113 31 The Catherine, 17 How. 170 631 The Cayuga, 2 Benedict, 125; 7 Blatchf. 385; 14 Wall. 270 632 The City v. Lamson, 9 Wall. 477 71 The Clarence, 3 W. Rob. 283; s. c. 7 Notes of Cases, 579 632 The Clinton Bridge, 10 Wall. 454 475 The Confederate Note Case, 19 Wall. 548, 559 140 The Dundee, 1 Hagg. Adm. 109 31 The Francis Wright, infra, 381 631 The Gazelle, 2 W. Rob. 279; s. c. 3 Notes of Cases, 75 632 The Girolamo, 3 Hagg. Adm. 169, 186 31 The Lottawana, 21 Wall. 558 29 The Monticello, 17 How. 152 634 The People v. Rensselaer & Saratoga Railroad Co., 15 Wend. (N. Y.) 113,131 496 The Rebecca, Ware, 187 28 The S. C. Tryon, infra, 267 631 The Sarah Ann, 2 Sumn. 206 634 The Vaughan and Telegraph, 14 Wall. 258 86 The Wild Ranger, 1 Lush. 553 31 The Zollverein, 1 Swa. 96 31 Thomas v. Huron, 27 Mich. 320 75 Thompson v. Cooper, 2 Col. C. C. 87 ■ 533 ------v. Lee County, 1 Wall. 327 295 Thorington v. Smith, 8 Wall. 1 140 Tomlinson v. Jessup, 15 Wall. 454 21 Tootal r. Spicer, 4 Sim. 510 534 Town of Concord v. Portsmouth Savings Bank, 92 U. S. 625 3 Town of Eagle v. Kohn, 84 Ill. 292 332 Town of East Lincoln v. Daven- port, 94 U. S. 801 76 Town of Queensbury v. Culver, 19 Wall. 83 76 Town of South Ottawa v. Perkins and Supervisors of Kendall County v. Post, 94 U. S. 260 668 Township of East Oakland v. Skinner, 94 U. S. 255 669 Township of Elmwood v. Marcy, 92 U. S. 289 669 Township of Pine Grove v. Talcott, 19 Wail. 666 70 Trade-Mark Cases, 100 U. S. 82 312 Trustees of Dartmouth College v. Woodward, 4 Wheat. 518 20 Trustees of the Wabash & Erie Canal Co. v. Beers, 2 Black, 448 522 Tucker v. Ferguson, 22 Wall. 527 368 Turnbull c. Davis, 1 Mart. (La.) n. s. 568 760 Turner v. Bank of North America, 4 Dall. 8 667 -------- v. Peoria & Springfield Railroad Co., 95 Ill. 134 345 Twyne’s Case, 3 Rep. 80 117 United States v. Burnham, 1 Mason, 57 230 ------v. Clark, 96 U. S. 37 620 ------v. County of Macon, 99 U. S. 582 736, 738 ------v. Cruikshank, 92 U. S. 542 613 ------v. Howell, 11 Wall. 432 613 ------v. Knight, 14 Pet. 301 651 ------v. Lancaster, 5 Wheat. 434 415 ------v. Moore, 95 U. S. 760 695 ------v. New Orleans, 98 U. S. 381-736 -----------------------------------v. Pugh, 99 U. S. 265--------------695 -----------------------------------v. Reese, 92 U. S. 214-------------312 ----------------------------------------------------------------------v. Simmons, 96 U. S. 360-613 -----------------------------------------------------------------------------------------------v. Thompson, 93 U. S. 586 264 Upton v. Tribilcock, 91 U. S. 45 149 Van Allen v. The Assessors, 3 Wall. 573 325 Van Hook v. Whitlock, 3 Paige, 409 155 Van Norden v. Morton, 99 U. S. 378 602 Viall v. Genessee Mutual Insurance Co., 19 Barb. (N. Y.) 440 360 Von Hoffman v. City of Quincy, 4 Wall. 535 288 Wacker v. Wacker, 26 Mo. 426 338 Wales v. Stetson, 2 Mass. 143 19, 21 TABLE OF CASES CITED. xxvii Wall v. County of Monroe, 103 U. S. 74 345 Wallace v. Shelton, 14 La. Ann. 498 293 Waller v. Harris, 20 Wend. (N. Y.) 561 99 Walnut v. Wade, 103 U. S. 683 3 Walter v. Brewer, 11 Mass. 99 11 ------v. Harris, 20 Wend. (N. Y.) 561 99 ------v. Walter, 1 Whart. (Pa.) 292 155 Ward v. Gris wold ville Manufactur- ing Co., 16 Conn. 593 155 Waring v. Clarke, 5 How. 441 630 Washington v. The State, 13 Ark. 752 . 296 Waterhouse v. Jamieson, Law. Rep. 2 H. L. (Sc.) 29 154 Watkins v. Holman, 16 Pet. 25 671 Watts et al v. Waddle et al, 6 Pet. 389 194 Wayman v. Southard, 10 Wheat. 1 651 Webb v. Bell, 24 La. Ann. 75 764 Webber v. Virginia, 103 U. S. 344 465 Weber v. Harbor Commissioners, 18 Wall. 57 490 Weightman v. Clark, 103 U. S. 256 6 Welton v. State of Missouri, 91 U. S. 275 465 West River Bridge Co. v. Dix, 6 How. 507 22 West Wisconsin Railway Co. v. Board of Supervisors, 93 U. S. 595 868 Whann v. Irwin, 27 La. Ann. 706 427 Wheeler v. Sedgwick, 94 U. S. 1 646 Wheeling Bridge Case, 18 How. 430 494 White v. Dobinson, 14 Sim. 273 635 Whitney v. Mowry, 4 Fish. Pat. Rep.207 97 Whittemore v. Cutter, 1 Gall. 429 588 Wicker v. Hoppock, 6 Wall. 94 229 Wiggin v. Heywood, 118 Mass. 514 129 Wilcox v. Plummer’s Ex’rs, 4 Pet. 172 153 Wilkins v. Aikin, 17 Ves. 422 439 Williams v. Nottawa, 104 U. S. 209 180 Williamson v. Barrett, 13 How. 101 36, 632 Willis v. Ward, 30 La. Ann. 1282 764 Wilmington & Weldon Railroad Co. v. King, 91 U. S. 3 140 Wilson v. Rousseau, 4 How. 646 771 ------v. Salamanca, 99 U. S. 499 76 Willson v. Blackbird Creek Marsh Co., 2 Pet. 245 475 Winsor v. McLellan, 2 Story, 492 406 Wiscart v. Dauchy, 3 Dall. 321 384 Wisconsin v. Duluth, 96 U. S. 379 475 Wolf v. Lowry, 10 La. Ann. 272 763 Wolff v. New Orleans, 103 U. S. 358 300 Wombwell v. Belasyse,6 Ves. 110 439 Wood v. Dummer, 3 Mas. 308 154 ------v. More wood, 3 Q. B. 440 209 Worrall v. Harford, 8 Ves. Jr. 4 534 Worseley v. De Mattos, 1 Burr. 467 121 Wright v. Bishop, 88 Ill. 302 2 Yates v. Whyte, 5 Scott, 640; s. c. 4 Bing. N. C. 272 ; 1 Arnold, 85 634 Yeatman v. Crandall, 11 La. Ann. 220 292 ------ v. Savings Institution, 95 U. S. 764 406 Zabriskie v. Cleveland, Columbus, and Cincinnati Railroad Co., 23 How. 381 150 Zane v. Zane, 5 Kan. 134 645 Wade v. Walnut. The court adheres to the decision of the Supreme Court of Illinois declaring that the provision in the existing Constitution of that State entitled “ Municipal subscriptions to railroads or private corporations” took effect July 2, 1870. Error to the Circuit Court of the United States for the Northern District of Illinois. This was an action brought by Wade against the town of Walnut, upon coupons cut from bonds purporting to be issued by the defendant, under the style of Township of Walnut, in the County of Bureau and State of Illinois. The declaration avers that each of the bonds contains, among other recitals, the following: “ This bond is issued under and by virtue of the charter of said Illinois Grand Trunk Railway Company, and amendments thereto, and other laws of the State of Illinois, and in accordance with the vote of the electors of said township, at the special election held August 6th, 1870, in accordance with said charter and amendments and laws.” The defendant demurred to the declaration, and judgment was rendered in its favor. It is unnecessary to state the remaining facts, as the only question upon which this court passed was as to whether at the foregoing date there was in VOL. XV. 1 Ay REPORTS OF THE DECISION0 OF THE /" within five months thereafter this action at law was begun to enforce its payment. If, therefore, the right to bring this suit did not accrue to the assignees until the assessment was made upon the stock by the court, and the stockholders were required to pay it, the action was brought long before the limitation of the statute could bar it. Oct. 1881.] Scovile v. Thayer. 157 All the delay which has occurred has been caused by the proceedings of the assignees, taken for the benefit of the stockholders, in order that they might not be subjected to unnecessary and onerous exactions. The lapse of time between the filing of the petition for the assessment and the decree of the bankruptcy court thereon is chargeable to continuances made by order of the court and to the opposition of the stockholder referred to. It does not lie in the mouth of the defendant to say that, while the steps necessary to fix his liability and limit its amount were being taken, the bar of the statute has intervened and cut off his liability altogether. The cases cited by the defendant to sustain his contention, that the cause of action accrued to the assignees in bankruptcy at the time of their appointment, are clearly distinguishable from this. In Terry v. Tubman (92 U. S. 156), the suit was by a bill-holder of an insolvent bank against a stockholder to enforce the individual liability of the latter to pay the bills of the bank held by the former. The court decided that the case was not so much like that of the guarantee of the collection of a debt, where a previous proceeding against the principal is implied, as it was like a guarantee of payment where resort may be had at once to the guarantor, without a previous proceeding against the principal. The conclusion of the court, therefore, was that the cause of action in favor of the bill-holder arose against the stockholder when the bank ceased to redeem its notes and became notoriously and continuously insolvent. It is clear that this authority has no application to the question in hand. The case of Terry v. Anderson (95 U. S. 628), also relied on by the defendant, was a suit in equity to enforce the individual liability of the stockholders of a bank, and to collect unpaid subscriptions to its capital stock. There was no agreement on the part of the bank not to collect the balance due on the stock. The bank itself could have enforced payment, without regard to the necessity for its collection, to satisfy the debts of the bank. And so the court held that the Statute of Limitations began to run against the bank and its creditors, in favor of the stockholder, when the bank stopped payment. 158 Scovile v. Thayer. [Sup. Ct. In Baker v. Atlas Bank (9 Mete. (Mass.), 182), and Commonwealth v. Cochituate Bank (3 Allen (Mass.), 42), also relied on by the defendant, it appeared that upon suspension of payment by the banks there was a present and unconditional liability of their stockholders, which the court held was barred by the limitation of six years. In the case of Baker v. Atlas Bank the court said: “ The demand sought to be enforced in this suit was a debt alleged to be due to the bank. Whenever, therefore, the bank became.insolvent by the loss of its capital stock an action accrued to the bank, according to the construction of the thirtieth section (Rev. Stat., c. 36), which is contended for by plaintiff’s counsel to recover the sum from the stockholders respectively, equal to each one’s share of stock. The statute, therefore, began to run in strictness immediately on the loss of the capital stock, and certainly when the bank stopped payment, and after the lapse of six years from that time the debt was barred.” But in the present case, as we have seen, there was, as between the company and its stockholders, no obligation on the part of the latter to pay the residue of their stock, unless it became necessary to satisfy creditors. We think, therefore, we are safe in saying that the statute did not begin to run in favor of the stockholders until at the very least the necessity for the payment had been ascertained, and an authorized demand of payment made. It is said by the defendant that to hold that the suit to recover the sums due on the stock held by him is not barred would defeat the policy of the Bankrupt Act, which is a speedy settlement of the bankrupt’s estate and the equitable distribution of his assets among the creditors. Unquestionably a prompt administration of the bankrupt’s assets was one of the ends which that act had in view; but this policy must be held to be subordinate to a just regard for the rights of both the creditors and debtors of the bank-rupt estate. The debtor cannot be forced to pay before his contract requires it, merely because the assignee may be in haste to close up the estate. If his obligation were evidenced by a promissory note due at a future day, he could not be compelled to pay it before maturity in order that the estate Oct. 1881.] Scovile v. Thayer. 159 might be speedily settled. So if some act must be done by the assignee, such as a demand of payment before his liabil-. ity is fixed, he cannot be compelled to pay until the prerequisites have been performed. In short, until an unconditional liability to pay something is fastened on the debtor no action can be maintained against him, and the Statute of Limitations does not begin to run in his favor. The suggestion that the assignee may postpone indefinitely the necessary steps to fix the liability of the debtor, and thus defeat the policy of the law, does not answer the proposition that the debtor cannot be sued until a cause of action has accrued against him. It is presumed that the assignee will do his duty. If he fails to do it he is subject to the order of the bankruptcy court, which, at the instance of those interested, can compel him to act. Our opinion is, therefore, that this action at law, prosecuted by the plaintiffs, assignees in bankruptcy of the Fort Scott Coal and Mining Company, against the defendant, to recover from him the balance due on his unpaid valid stock in said company, was not barred by the limitation of two years prescribed by the Bankrupt Act. For the error in holding that the action was barred, the judgment of the Circuit Court must be reversed, and the cause remanded with directions to award a New trial. Mr. Justice Field and Mr. Justice Gray dissented. 160 Bantz v. Frantz. [Sup. Ct. Bantz v. Frantz. 1. Reissued letters-patent No. 4731, granted Feb. 6, 1872, to Gideon Bantz for an improvement in boiler furnaces for burning wet fuel, are void, inasmuch as the specification and claim attached to the original letters No. 26,616, which bear date June 22, 1858, were confined to a combination therein described, whilst the reissued letters cover the several elements of that combination as distinct inventions. 2. If the first specification was defective in not asserting a separate claim for each device, the right of the patentee to make the requisite correction was forfeited by his delay and laches. Miller v. Brass Company (104 U. S. 350) cited upon this point and reaffirmed. Appeal from the Circuit Court of the United States for the District of Kentucky. On June 22, 1858, there was issued to Gideon Bantz, the appellant, who was complainant in the court below, an original patent of that date “ for an improvement in furnaces for heating steam-boilers.” On Feb. 6, 1872, Bantz obtained a reissue, and on June 22,1872, an extension for seven years of his reissued patent. The bill in this case was filed by him on May 4, 1876, to restrain infringement by the defendant, David Frantz, of the extended reissue. The answer denied the novelty and utility of the invention, denied infringement, and asserted the invalidity of the reissue. The Circuit Court dismissed the bill, and the case is brought here by the complainant. The specification of the original patent declared: — “ The object of this invention is the more perfect combustion of tan, sawdust, bagasse, and all other kinds of refuse fuel in a wet or dry state, as well as of wood or coal. It is, however, with particular advantage to the burning of wet fuels. My invention consists in the arrangement embracing, for united use in the manner and for the purposes hereinafter specified, the following features, to wit: “ First, two or more arched fire-chambers, with throats of less area than their capacity; second, an auxiliary combustion reservoir or chamber, with cima-reversa shaped bottom and side draft-door; third, a series of reverberatory chambers, with side draft-doors and Oct. 1881.] Bantz v. Frantz. 161 passages at top for communication with each other; and, fourth, a diving or direct flue leading into the chimney or smoke-stack. “To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation. “ A A are two arched fire-chambers, arranged side by side furnished with grates a a, having ash-pit B B provided below the said grates. These fire-chambers are not placed below the boiler, H, but directly in front thereof, and longitudinally therewith. They may, however, be placed at one side of the boiler or at any angle to it. Each is provided with the usual door b, but these are only used for lighting the fires; and the ash-pits are provided with doors c to regulate the supply of air through the grates, and permit the cleaning out of ashes. On the top of each chamber there are feeders d d for supplying the fuel, but as these feeders are the same as used in othei’ furnaces, no particular description of them is necessary. The fire-chambers are covered with a flat floor built over the arches, that the fuel may be wheeled to the feeders in barrows, or brought in any other convenient manner. At the rear end of each fire-chamber there is a throat-like aperture e communicating with what I term the reservoir C, which is built of brick, lined with firebrick, under the front portion of the boiler, and which has a concave bottom m and convex back n, which are formed by a cima-reversa shaped plate. By having the bottom and back of the reservoir formed by ncima-reversa shaped plate,the throat e is not partially closed up, as it would be if the plate was straight and set inclined, and, beside this, the heated products of combustion are made to hug the bottom of the boiler, and as the draft is at this point, the perfect combustion of partially ignited gases is insured. The convex back of the reservoir terminates in and serves as a bridge-wall, and has a concave top so formed as to leave a space, o, of but three or four inches between it and the boiler. “ The purpose of the reservoir will be presently explained. In rear of the bridge-wall f there is a series of reverberatory-chambers DDD,two, three, or more, one behind the other, the series extending nearly as far as the rear end of the boiler, and the said chambers being severally separated by bridge-walls, g g, and each chamber being provided with one or more doors A, in either or both sides, for the purpose of admitting air in sufficient quantities either to complete the combustion of the gases from the fire-chambers or to check the draft. The reservoir is furnished with a door A1, for a similar purpose as those A A in the reverberatory-chamber. At the rear of the hindmost reverberatory-chamber there is a wall y1, like VOL. xv. 11 162 Bantz v. Frantz. [Sup. Ct. g g, behind which there is a diving or drop flue E leading to the chimney. “ The operation of the furnace is as follows: The gaseous products of the combustion in the fire-chamber A A escape by the throats e e into the reservoir C, where they riiingle together, and the combustible portion thereof becomes ignited, and where their heat acts upon the boiler, and from whence they pass into one after another of the reverberatory-chambers, in each of which a portion of their heat is abstracted by contact with a portion of the boiler, and finally they descend the flue E to the chimney. The effect of the principal portion of my improvement, which consists in the employment of the reservoir C, connected with the fire-chambers by the throats e e, of much smaller transverse area than the fire-chamber, is that the products of combustion and heat are prevented leaving the fire-chamber too rapidly, and the said chambers are consequently caused to be heated to an intense degree, and a very nearly perfect combustion of the fuel is obtained therein, and when the gaseous products of combustion leave the fire-chambers by the said throats and arrive in the reservoir C, the side walls and curved bottom and back of which are kept at a white heat, the still combustible portion of the gaseous products is ignited under the boiler.” The claim was thus stated : — “ What I claim as my invention, and desire to secure by letterspatent, is: the arrangement of fire-chambers A A, contracted throats e e, auxiliary combustion-reservoir C, with the cima-reversa bridge-plate m n, and the door h', reverberatory-chambers D D, with doors h h, and the diving or direct flue E, substantially as and for the purposes set forth.” The description of the invention in the specification of the reissued patent is substantially the same as that in the specification of the original patent. The drawings are identical. In the reissue the invention is called “ a new and useful improvement in furnaces for burning wet fuel.” The claim is thus set forth: — “I do not claim a furnace for burning wet fuel, broadly, nor the use of a series of fire-chambers connecting with the common flue, arranged between the furnace and the boiler, as I am well aware that this has been done before. Oct. 1881.] Bantz v. Frantz. 163 “ Having described my invention, I claim — “ 1. In a furnace for burning wet fuels, having two or more single fire-chambers not arranged under the boiler, the combustionchamber or reservoir C, arranged above the top of said firechambers, and located directly under the front end of the boiler, essentially as described. “ 2. The cima-reversa bottom m n of the combustion-chamber or reservoir C, in combination with the narrow throats e of the separate fire-chambers, and the narrow exit flue o of the bridge-walls for the purpose essentially as described. “ In combination with the combustion-chamber or reservoir C, arranged and located as described, I claim the side door or dóors h' for the admission of atmospheric air, for the purpose described. “ 4. In combination with a series of fire-chambers, A, and the combustion-chamber or reservoir C, located and arranged directly beneath the front end of the boiler, and above the crown of said fire-chamber, I claim a series of reverberatory-chambers, D, provided with side-doors h, and a diving-flue, E, at the rear end of the boiler, to hold the heat beneath the same throughout its entire length, and to arrest and deaden the sparks as described. “ 5. In a furnace for burning wet fuels in which the firechambers are not arranged under the boiler, I claim the arrangement of the boiler upon the rear wall of the furnace and the rear wall of the diving-flue E, for the purpose of obtaining the full advantage of the heat of the walls of the furnace, and of the divingflue, as described. “ 6. In a furnace for burning wet fuels, having a flat top, and supplied through openings therein, I claim the dead-chambers, arranged between the floor and the arches of the fire-chambers, for the purpose of maintaining the top of the furnace cool for the workingmen as described.” The figures on page 164 were annexed to the specification. Mr. Arthur Stem for the appellant. • , Mr. William A. Maury and Mr. Lewis N. Dembitz for the appellee. Mr. Justice Woods, after stating the case, delivered the opinion of the court. We are clearly of opinion that the reissued patent is void. It is evident on a cursory reading of the specification and 164 Bantz v. Frantz. [Sup. Ct. claim of the original patent that it was meant to cover a combination of the several contrivances therein described, and not to cover the several elements of the combination as distinct inventions. No claim is made for the several parts of which the furnace is constructed, but for the “ arrangement embracing, for united use in the manner and for the purposes specified, the following features,” &c. If the claim had been for the several distinct contrivances of which the furnace is composed, as claimed in the reissue, the original patent would not have been granted, because the evidence in the record shows that at least the sixth claim in the reissued patent, for dead-chambers over the arches of the fire-chambers, was distinctly covered by the patent of Moses Thompson, dated April 10, 1855, for an improvement in burn- Fig. 2 Fig l Fig.3. Oct. 1881.] Bantz v. Frantz. 165 ing tan-bark, bagasse, sawdust, or other kinds of fuel in a wet state, for the purpose of creating heat to generate steam, &c. This the drawings accompanying the specification of Thompson’s patent clearly show. It is evident, therefore, that if the appellant had, in his application for the original patent, claimed as his own invention all the distinct devices described in the specification, he could not have obtained his patent in its present form. It could have been only on the ground that his claim was for a combination that it was allowed and the patent issued. Prouty v. Draper, 1 Story, 568; Pitts v. Whitman, 2 id. 609; Prouty n. Ruggles, 16 Pet. 336. If the reissued patent is valid the appellant could maintain an action against the infringer of any one of the separate claims covered by it. Under the original patent, suit could be maintained only against those who employed the combination embracing all the distinct contrivances described in the reissued patent. The reissue is, therefore, broader than the original patent, and is, under the circumstances of this case, void. The act of July 8, 1870, c. 230 (16 Stat. 198), was in force when the reissue was granted. Section 53 (Rev. Stat., sect. 4916) declares “ that whenever any patent is inoperative or invalid by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee.” In this case the original patent bears date June 22, 1858. The reissue bears date Feb. 6, 1872, more than thirteen years and six months after the date, and less than five months before the expiration, of the original patent. If the specification in the original patent was defective or insufficient in claiming a combination of several devices instead of making a distinct claim for every device which entered into the combination, the fact was instantly discernible, even to an unpractised eye, as 166 Railroad Co. v. Ellerman. [Sup. Ct. soon as the patent was read. Therefore, as said by Mr. Justice Bradley in delivering the opinion of this court in a similar case, Miller v. Brass Company (104 U. S. 350), if any correction was desired it should have been applied for immediately; the right to have the correction made was abandoned and lost by unreasonable delay. That case is apposite and is conclusive of this. Decree affirmed. Mr. Justice Harlan did not sit in this case, nor take any part in deciding it. Railroad Company v. Ellerman. 1. By its charter and the statutes of Louisiana the city of New Orleans was authorized to erect and maintain wharves within its limits, and to collect wharfage. Held, that no right of the city was infringed by a subsequent enactment of the General Assembly of that State granting to a railroad company the authority to enclose and occupy for its purposes and uses a specifically described portion of the levee and batture, and maintain the wharf it theretofore erected on its property within those limits, and exempting it from the supervision and control which the municipal authorities exercise in the matter of public wharves. 2. The question as to whether the company, in constructing, pursuant to such authority, the wharf on its property, and collecting wharfage, acted ultra vires, cannot be raised by a claimant under the city who is not a stockholder, and whose rights have not been infringed. Appeal from the Circuit Court of the United States for the District of Louisiana. The facts are stated in the opinion of the court. Mr. John 8. Cadwalader and Mr. Thomas L. Bayne for the appellants. Mr. Charles N. Hornor for the appellee. Mr. Justice Matthews delivered the opinion of the court. The New Orleans, Mobile, and Texas Railroad Company, one of the appellants, and the principal defendant below, is a corporation of the State of Alabama, by the original name of the New Orleans, Mobile, and Chattanooga Railroad Company, which has constructed a line of railroad from Mobile to New Oct. 1881.] Railroad Co. v. Ellerman. 167 Orleans. It was authorized by its charter “ to obtain by purchase or grant from any person or corporation, and afterwards maintain, manage, use, and enjoy, any railroad property, and the appurtenances thereto, or any steamboats, piers, wharves, and the appurtenances thereto, that the directors may deem necessary, profitable, and convenient for the corporation to own, use, and manage in connection with its railroads.” Session Acts of Alabama, 1866. The General Assembly of Louisiana, on Aug. 16, 1868, passed an act which recognized the company as a body corporate, and authorized it to exercise its franchises in Louisiana, and expressly conferred upon it power “ to construct, establish, or purchase in the State of Louisiana, and thereafter to own, maintain, and use, suitable wharves, piers, warehouses, steamboats, harbors, depots, stations, and‘other works and appurtenances connected with and incidental to said railroad and the business of said company, and by the directors of said company deemed necessary and expedient for said company to own and manage.” In 1869 that State further enacted “ that the said company, with the consent of the owners of lands fronting on any navigable watercourse, or after such lands have been acquired by the company by purchase, release, donation, or in any other manner, in accordance with the laws of the State of Louisiana, may erect, construct, and thereafter maintain and use wharves, warehouses, depots, or other buildings and structures in and upon the margins, or upon that portion of the margins reserved to public use, of any and all navigable rivers, bayous, or watercourses in the State of Louisiana, wherever the same may be deemed, by a majority of the directors of the company, necessary and requisite for the legitimate and convenient transaction of the business of the company.” On March 6, 1869, the General Assembly of Louisiana passed a joint resolution, having the force of law, granting to the company “ the right to enclose and occupy for its purposes and uses, in such manner as the directors of said company may determine, that portion of the levee, batture, and wharf in the city of New Orleans, between the street laid out between Pilie Street and the Mississippi River, and from Calliope Street to 168 Railroad Co. v. Ellerman. [Sup. Ct. the lower line (about three hundred and fifty-five feet below Calliope Street) of the batture rights owned by said company, and no steamship or other vessel shall occupy or lie at said wharf, or receive or discharge cargo thereat, except by and with the consent of said company; and all steamships or vessels discharging or receiving cargo at said wharf for said company, or any steamships or vessels using said wharf, by and with the consent of said company, and not receiving or discharging cargo at or occupying any other wharf in the city of New Orleans, shall be exempt from payment of all levee and wharf dues to the city of New Orleans. Said wharf shall be maintained and kept in repair by said company.” All laws and parts of laws, and all ordinances and parts of ordinances, conflicting with the provisions of the joint resolution were thereby repealed. • At the date of the passage of the joint resolution the company was the owner by previous purchase of the land described in it, and in possession, using it for the purposes of a depot and for other railroad purposes, and as a wharf, appropriate structures having been built for that use. A portion of this property was leased in June, 1875, by the receivers of the railroad, appointed under proceedings to foreclose, for twelve months, at the sum of $7,200, to Roberts and Witherspoon, who were made defendants to the bill, the use and employment of the wharf granted by such lease consisting “in the mooring of vessels coming to the consignment, custody, or care of the parties of the second part (the lessees) or to either of them, and the loading and unloading of cargoes upon all vessels of this kind with the full consent of the parties of the first part, exempt from wharf and levee dues, according to the terms of the said resolution.” The object of the bill filed by Ellerman, the appellee, was to enjoin the execution of this contract, and the use and employment of the wharf described therein in the manner contemplated by it. His claim is based on a contract between himself and the city of New Orleans, entered into June 29, 1875. It purports to be a grant from the city to him, for a term of four years and eleven months from the date of the contract for building and repairing the wharves and levees Oct. 1881.] Railroad Co. v. Ellerman. 169 according to certain specifications on file, and for the payment of debts contracted on account of them, and for transferrincj the revenues of the same for the said term, agreeably to the terms of a certain ordinance and resolution of the city, all which are set out in the contract. The specifications state the particulars of the required repairs and extensions of the wharves. The subject-matter of the ordinance is declared to be the sale of “ the revenues of the wharves and levees of the city of New Orleans, collectible under existing ordinances upon all ships, vessels, steamships, steamboats, flatboats, and water-craft of any and every description, upon the terms and conditions ” therein set forth. The purchaser was to assume certain specified liabilities of the city, connected with the wharves, and it was provided that the sale should be awarded to the bidder who would assume to discharge the obligations set forth, in consideration of the transfer of the revenues assigned, in the shortest time. The purchaser should be subrogated to all the rights and privileges of the city, to sue for and collect the revenues; and it was understood and agreed that “ the city only undertakes to transfer only such rights as she possesses, and the purchaser takes the said revenues subject to all the rights now held by other persons by way of lease, privilege, contract, or by law, and the purchaser shall, in reference to them, be subrogated only to the rights of the city.” It was provided that the purchaser should take possession of the wharves, landings, and levees in the condition in which the same might be at the time, and should repair the same and keep them in good order and condition during the term stipulated. It was further provided that if, from overpowering force, the city should not be able to protect the transferee in receiving the said revenues, or if they should by any such cause be diminished over one-third, the transferee might, after satisfying all obligations incurred under the contract up to the time, surrender it and be discharged from further responsibility; but the city, it was expressly declared, in nowise guaranteed the payment of the wharfage and levee dues, the collection of which is to be enforced by the transferee at his own cost. The wharves and levees which constitute the subject-matter 170 Railroad Co. v. Ellerman. [Sup. Ct. of this arrangement consisted of artificial improvements made at the expense of the city, by grading, and by driving piles which are securely fastened, and covered by a plank flooring, so as to furnish safe and convenient landings and moorings for water-craft, and places for loading and unloading their cargoes. Provision was made not only for keeping in repair the existing works and structures, but the transferee of the revenues was bound to build additional new wharves in certain specified districts of the city, if required to do so, not to exceed a named sum per annum ; but if new wharves should be required in other districts by the city council at their own or the request of any other person, the party so desiring them should be bound to pay for the cost thereof, and should be entitled to receive the revenues derived from such wharves during the term of contract wdth the transferee, unless sooner reimbursed. The claim of Ellerman is, that the administration of the wharves and levees within the city limits is intrusted by law to the municipal government; that with this administration is coupled a franchise, that the city may charge and receive a reasonable remuneration for the expense of the facilities afforded to commerce; that under this franchise the city expended out of its revenues very large sums on the wharves and levees in permanent works and improvements for the benefit of commerce; that, in consequence, it had a vested right in the franchise and the revenues legitimately derived from these expenditures, of which it could not be divested by an act of the legislature, and that he, by virtue of his contract, is subrogated during its term to the rights of the city. He further claims that it is a violation of these rights for the defendants to permit the use and employment of their property as a wharf, and to charge and receive wharfage for such use, by and from persons ndt engaged in conducting the proper business of the company, thus opening a rival wharf business in competition with the city, and him as its lessee; and that if the joint resolution of March 6, 1869, must be construed so as to confer upon the company any such authority, it is null and void, because contrary to that provision of the Constitution of the United States which forbids the taking of private property without due process of law. Oct. 1881.] Railroad Co. v. Ellerman. 171 It is not claimed that the city has ever used as a public wharf the premises so occupied by the appellants, or made any expenditures for works and constructions upon them; and it is admitted that all expenditures of that description which have been made thereon have been at the cost of the railroad company. A decree was rendered in the Circuit Court in favor of the appellee, granting the relief prayed for, to review which this appeal is prosecuted. In the opinion of the circuit judge (2 Woods, 120), the case turned upon the construction to be given to the joint resolution of March 6, 1869; and being of opinion, upon the authority of the decision of the Supreme Court of Louisiana in City of New Orleans v. New Orleans, Mobile, f Chattanooga Railroad Co. (27 La. Ann. 414), that this resolution conferred upon the railroad company no right to charge wharfage dues against vessels landing at said wharf which were in no way connected with the business of the railroad company, and no right to maintain a free wharf for such vessels, it was assumed that the appellee had such an interest in the question as qualified him to maintain this suit and entitled him to the relief prayed for. City of New Orleans v. New Orleans, Mobile, f Chattanooga Railroad Co. (supra) was a suit brought against the company to recover a sum of money for levee dues charged against the defendant for barges and flatboats belonging to it which were lying at this wharf, and used in its business. The Supreme Court of the State, in that case, decided that the joint resolution was not void for either of the reasons urged. It said: “ The public servitude along the banks of rivers in Louisiana is under the control of the General Assembly. C. C. 453, 455, 458. The right of the General Assembly to grant the right to corporations or individuals to make and maintain wharves has been long settled. 5 Ann. 661; 15 id. 577; 22 id. 545; 6 N. Y. 523 ; 26 id. 287. In the case now under consideration the State granted the right to the riparian owner. This is permissible. 1 Black, 1. Nor was the grant a donation of public revenues to a private purpose. The grant is a license to a railroad company to use its property on the river bank 172 Railroad Co. v. Ellerman. [Sup. Ct. for public purposes, to wit, to facilitate the transaction of its business with the public. It was the control by the legislature of a public servitude.” The extent of the rights of the company under the joint resolution — whether the use of the wharf was limited to railroad purposes merely, or embraced all purposes—was a point not involved in that case, nor decided either in express terms or by any fair inference. What that decision did affirm, however, was, that the disposal of the public right in the premises, as a wharf, was in the State, to the exclusion of the city, so that if the joint resolution had been a cession to a natural person, as riparian proprietor, to improve the premises as a landing-place for water-craft, and for loading and unloading cargoes, by building levees and wharves, at his own expense, with the right to charge reasonable wharfage for their use, it would have been conclusive upon the city and those claiming in its right. And construing the grant to the company as limiting the use of the property as a wharf, to purposes strictly incident to its corporate business, still, in order that it should be beneficial to that extent, it would be essential that the company should have the right to exclude all other uses; and this would effectually withdraw it from the jurisdiction of the city authority over the general subject of the public wharves. Neither would this be in derogation of any vested right of the city. Whatever powers the municipal body rightfully enjoys over the subject is derived from the legislature. They are merely administrative and may be revoked at any time, not touching, of course, any property of the city actually acquired in the course of administration. The sole ground of the right of the city to collect wharfage at all is that it is a reasonable compensation, which it is allowed by law to charge for the actual use of structures provided at its expense for the convenience of vessels engaged in the navigation of the river. Cannon v. New Orleans, 20 Wall. 577. And while it may be true, as was decided by the Supreme Court of Louisiana in Ellerman v, McMains (30 La. Ann., pt. 1, 190), that the city cannot lawfully be required to permit the use of its wharves, without compensation, on the ground that they Oct. 1881.] Railroad Co. v. Ellerman. 173 are private property; it is equally true, as decided by the same court in City of New Orleans v. Wilmot (31 La. Ann. 65), that the city cannot forbid any water-craft from using the banks of the navigable waters of the State for purposes of navigation and commerce, and cannot compel them to pay to it wharfage except for the use of wharves of which it is the proprietor. The rights of the city in respect to this controversy would seem, then, to be reduced to that of building levees and wharves on the banks of the river within its corporate limits for the public utility, with the exceptions established by paramount law, and collecting reasonable wharfage for the actual use of such structures. Its right to build a wharf upon the land of the company is, we have seen, excluded by the terms of the joint resolution of March 6, 1869, according to its narrowest construction. The sole remaining question then, is, whether Ellerman, as assignee of the city, has any legal interest which entitles him to enjoin the company from using its wharf as a public wharf beyond the limits of such use, as defined by that construction of the joint resolution. If he has such interest, it can only consist in preventing competition with himself as a wharfinger, which such- more extensive use of the railroad property would create. And if the right to assert it exists, it must rest, not upon the claim that the premises are thus used for purposes to which they might not be lawfully devoted if owned and used by a natural person, but on the allegation merely that such use is beyond the corporate powers of the company. But if the competition in itself, however injurious, is not a wrong of which he could complain against a natural person, being the riparian proprietor, how does it become so merely because the author of it is a corporation acting ultra vires ? The damage is attributable to the competition, and to that alone. But the competition is not illegal. It is not unlawful for any one to compete with the company, although the latter may not be authorized to engage in the same business. The legal interest which qualifies a complainant other than the State itself to sue in such a case is a pecuniary interest in preventing the defendant from doing an act where the injury alleged flows from its quality and 174 Railroad Co. v. Ellerman. [Sup. Ct. character as a breach of some legal or equitable duty. A stockholder of the company has such an interest in restraining it within the limits of the enterprise for which it was formed, because that is to enforce his contract of membership. The State has a legal interest in preventing the usurpation and perversion of its franchises, because it is a trustee of its powers for uses strictly public. In these questions the appellee has no interest, and he cannot raise them in order, under that cover, to create and protect a monopoly which the law does not give him. The only injury of which he can be heard in a judicial tribunal to complain is the invasion of some legal or equitable right. If he asserts that the competition of the railroad company damages him, the answer is, that it does not abridge or impair any such right. If he alleges that the railroad company is acting beyond the warrant of the law, the answer is, that a violation of its charter does not of itself injuriously affect any of his rights. The company is not shown to owe him any duty which it has not performed. This was the principle on which this court proceeded in the case of City of Georgetown v. Alexandria Canal Co., 12 Pet. 91. It is applied in Mayor, ^c. of Liverpool v. Chorley Waterworks Co., 2 De G., M. & G. 852; Stockport District Waterworks v. Mayor, ^c. of Manchester, 9 Jur. N. s. 266; Pudsey Coal Gas Co. v. Corporation of Bradford, Law Rep. 15 Eq. 167. On this ground it is our opinion that the appellee failed to allege and show any right to maintain his bill, which should, therefore, have been dismissed. The decree will be accordingly reversed, with directions to dismiss the bill; and it is So ordered. Mr. Justice Woods dissented. Oct. 1881.] Manufacturing Co. v. Bradley. 175 Manufacturing Company v. Bradley. 1. A corporation organized under the laws of South Carolina agreed, by an instrument under its seal, to pay on a certain date to A. a sum of money at a specified rate of interest, and by an indorsement under its seal (infra, p. 177), on the paper after it matured, further agreed, in consideration of forbearance to a date named, to pay at a higher rate of interest the money to bearer. Held, 1. That the indorsement is a new contract upon sufficient consideration, and is negotiable within the meaning of the law merchant, and by the law of that State. 2. That B., the lawful holder thereof, is not precluded from suing thereon in the Circuit Court, by the fact that A. is a citizen of that State. 2. Where the paper by its terms creates a lien for the debt therein mentioned, the stockholders also being by law jointly and severally liable therefor, and their property subject to seizure upon an execution against the company, — Held, that, to a suit in equity seeking a decree for the debt, and the enforcement of B.’s lien, the stockholders are proper parties defendant. 3. The fact that after the paper had matured the president of the company bought it and transferred it by delivery to B. furnishes no defence to a recovery, the purchase having been made in good faith with his own means, and sanctioned by the directors of the company. Appeal from the Circuit Court of the United States for the District of South Carolina. The facts are stated in the opinion of the court. Mr. A. Gr. Magrath and Mr. Samuel Lord, Jr., for the appellants. Mr. William E. Earle and Mr. James B. Campbell for the appellee. Mr. Justice Matthews delivered the opinion of the court. The Marine and River Phosphate Mining and Manufacturing Company, one of the appellants, is a corporation organized under the General Statutes of South Carolina, on March 15, 1870, with a subscribed capital of $500,000, the amount limited by the articles of association, of which hut one-half had actually been paid in. On Dec. 28, 1872, it borrowed from William J. Gayer, receiver, appointed by the Court of Common Pleas for the County of Charleston, in a cause pending therein, of Dabney, Morgan, & Co. against The Bank of the State of South Carolina, $20,000 of the funds in his hands, which he was authorized so to invest. As evidence of, and security for, 176 Manufacturing Co. v. Bradley. [Sup. Ct. the loan it executed and delivered its bond, of which the following is a copy: — “ State ok South Carolina, ) Charleston County. ) “ Know all men by these presents, that we, the Marine and River Phosphate Mining and Manufacturing Company of South Carolina, are held and firmly bound unto William J. Gayer, receiver, in the sum of twenty thousand dollars, with interest thereon at the rate of ten pei’ cent annually, payable semi-annually, to be paid on the first day of July next ensuing the date hereof, for which payment well and truly to be made we, the said company, do hereby bind ourselves and our successors firmly by these presents. “In witness whereof the said company have caused their seal to be hereunto affixed, the twenty-eighth day of December, A. D. 1872. “ We, the said company, do further covenant and agree that the above bond constitutes a lien upon the property of the said company, and that the same is issued under and pursuant to the provisions of section thirty-nine of chapter sixty-four of the General Statutes.” It is signed by “ D. T. Corbin, president Marine and River Phosphate Mining and Manufacturing Company of South Carolina,” countersigned by “Reuben Tomlinson, treasurer,” and sealed with the corporate seal. Subsequently to the maturity of this bond, C. C. Puffer, who had become successor in the receivership to Gayer, on April 2, 1874, transferred and delivered it to D. T. Corbin, in exchange for three hundred shares of the capital stock in the Phosphate Company, owned by him. This transaction was reported by the receiver to the court as a payment of the note, and the shares of stock were carried as part of the fund in his hands, and were afterwards sold by order of the court. No express order of the court is produced authorizing the transaction, but his accounts disclosing it were passed and confirmed and he was discharged. Corbin at this time was still president of the company. The bond, while held by the original receiver, had been duly recorded in the office of the register for mesne conveyances, as a lien upon the company’s property. Oct. 1881.] Manufacturing Co. v. Bradley. 177 On May 13, 1874, an indorsement was made upon the bond, as follows: — “In consideration of further forbearance on the part of the holder of this bond till the first day of January, A. D. 1875, the Marine and River Phosphate Mining and Manufacturing Company of South Carolina hereby promises, waiving all set-off or other defence, to pay this bond to bearer on the first day of January, A. D. 1875, with interest at the rate of twelve per cent per annum, from the first day of April, 1874, payable quarterly; and should said bond not be paid on the first day of January next, then thereafter interest shall be paid in the same manner and at the same rate as herein mentioned, till paid.” This indorsement was signed “ The Marine and River Phosphate Mining and Manufacturing Company of South Carolina, by D. T. Corbin, president,” and countersigned by “ Reuben Tomlinson, treasurer.” The corporate seal was thereto affixed. The evidence on the point does not permit any doubt that this arrangement between Corbin and the company was made with the full knowledge and express sanction of the directors. The treasurer testifies that he objected to taking action upon the proposal of Corbin for an extension of payment as contained in the indorsement, without first submitting the question to them. The form of the renewal was the one agreed to by them, and by them ordered to be indorsed on the bond. This was done with knowledge that Corbin then held it. The interest to be paid appears to be lawful and customary, being then the rate charged by banks. It was regularly paid by the treasurer to Corbin, and in December, 1876, a payment of $10,000 was made to him by the treasurer on account of the principal. That payment was reported to the board of directors, some of whom had been consulted in regard to it by the treasurer before it was made; because, as he states, “ the funds on hand at the time having been provided for other purposes, I did not feel at liberty to use them for that purpose without first consulting with such directors as were conveniently at hand.” He adds : “ Mr. Corbin frequently, during the months of January and February, 1877, requested me to arrange for the payment of the balance of $10,000 principal, and the inter- VOL. XV. 12 178 Manufacturing Co. v. Bradley. [Sup. Ct. est due on said bond. The matter was brought to the attention of the directors by me, and no objection was made by them to the payment of said money, if it could be raised without serious embarrassment to the company. Arrangements to pay said bond were finally made and the money actually raised and deposited in bank for that purpose, subject, however, to conditions, the fulfilment of which was prevented by the change in the organization of the company which took place in March, 1877.” In June, 1877, Corbin transferred and delivered the bond to Bradley, the appellee, in consideration of ten dollars paid, and his agreement to pay the amount still due on the face of it, less the ten dollars paid, as stated in a letter from Corbin to Bradley, making the offer which was accepted, “ only when you shall have collected the amount from the company, and what you shall collect from the company, less the cost and expenses of collection.” In answer to a question, on cross-examination, as to his motive and purpose in parting with the bonds in this way, Mr. Corbin said, “ that the company had refused to pay the bond, and I believed if I held the bond I would be compelled to litigate the same with the company, and I believed if it passed into the hands of a third person, in good faith, that the company would pay it to him without a long and tedious litigation, having no prejudices against him, as I believed; and further, I did not wish to be a party plaintiff in an important suit against the company that I had been so long connected with as president.” On July 5, 1877, Bradley, being a citizen of Massachusetts, filed his bill in equity in the court below against The Marine and River Phosphate Mining and Manufacturing Company, and several others, alleged to be citizens of South Carolina, and stockholders in that corporation. It alleges that the bond is a lien upon all the property of the corporation, embracing certain described personal property, and the franchise granted to it by the State to dig, mine, and remove from the bed of the navigable streams and waters within the jurisdiction of the State the phosphate rock and deposits, according to an act passed March 1, 1870. It also alleges that the defendants Oct. 1881.]* Manufacturing Co. v. Bradley. 179 charged to be stockholders in the corporation have not fully-paid up the amount of the capital subscribed by them, and that they are within the provisions of section 23 of chapter 64 of the General Statutes of South Carolina, under which act the corporation was organized, which provides that “ the members of every company shall be jointly and severally liable for all debts and contracts made by the company until the whole amount of capital stock fixed and limited by the company in manner aforesaid is paid in, and a certificate thereof made and recorded as prescribed by the following section,” . The bill contains the following averment: “That to bring a separate and distinct action at law against each of such stockholders would be a great hardship to your orator, inasmuch as a court of equity has full power to hear and adjudicate all the issues between your orator and the said several defendants, thus preventing a multiplicity of suits; and by ascertaining the number of shares of the capital stock of the said Marine and River Mining and Manufacturing Company of South Carolina, held by the said several defendants, the amount of the subscription paid upon each of said shares, and the amount still due and unpaid thereupon, can adjust and decree the amount which each of said defendants justly owes to your orator, and can afford him that relief which a court of law is unable to give.” The prayer of the bill is that the defendant, The Marine and River Phosphate Mining and Manufacturing Company of South Carolina, be decreed to pay the amount due upon the bond, with interest; that the same be declared to be a lien upon its property described in the bill, and that the same be sold for the payment and satisfaction thereof; and that the other defendants be decreed to be justly and severally liable for the amount of the said debt, and to pay on account thereof so much of the unpaid subscription of each share of the stock in said corporation, held by them severally, as shall be necessary to pay the same, and for general relief. A final decree was rendered against the company and several of its stockholders, co-defendants, for the payment of the amount due on account of the said bond, for which execution was awarded, and a decree foreclosing the equity of 180 Manufacturing Co. v. Bradley. • [Sup. Ct. redemption in the corporate property described in the bill, on which the bond is declared to be a lien, and directing its sale. To review this decree the defendants below prosecute the present appeal. Several questions, arising upon the pleadings and evidence, and embodying the errors assigned upon the decree, will be considered in their order. I. The first of these relates to the jurisdiction of the court. It is objected in the first place that the complainant is the assignee of a chose in action on which no suit could have been maintained in the Circuit Court by his assignor, and that consequently he is within the prohibition of the first section of the act of March 8, 1875, c. 137. The answer to this objection is, that the obligation sued on is a negotiable promissory note, and is, therefore, excepted out of the prohibition relied on. It is true that the bond, as originally executed, was payable to Gayer, receiver, simply, and was not negotiable; but the subsequent indorsement was a new and complete contract, upon a distinct and sufficient consideration, and being payable to bearer, is negotiable by delivery merely. It is a negotiable note within the meaning of the law merchant, and according to the law of the place of the contract, notwithstanding it is an instrument under seal. Langston v. South Carolina Railroad Co., 2 S. C. 248 ; Bank v. Railroad Company, 5 id. 156 ; Bond Debt Cases, 12 id. 200, 250. It is further objected, however, that the transaction between Corbin and Bradley was fictitious and not real; that the title to the bond remained in the former, so that the latter, not being the real party in interest, cannot maintain an action to enforce it; that the present suit is collusive, for the purpose of conferring jurisdiction upon the Circuit Court, and, therefore, within the rule declared in Smith v. Kernochen (1 How. 198), Jones v. League (18 id. 76), and Barney n. Baltimore City (6 Wall. 280), and enacted by the fifth section of that act, as construed in Williams v. Nottawa, 104 U. S. 209. The delivery of the bond by Corbin to Bradley, under the arrangement we have mentioned, was, however, a transfer of the o ill legal title to the obligation. Whether the agreement was not also a transfer by Corbin of all beneficial interest in the bond, Oct. 1881.] Manufacturing Co. v. Bradley. 181 depends on whether Bradley was bound to account to him specifically for the net proceeds of its collection, or only to pay him so much money as they should amount to, —a question which it is not necessary to decide ; because it does not appear from this record but that Corbin could himself have maintained a suit in his own name in the Circuit Court upon the bond. It is nowhere distinctly alleged or shown that at the time this suit was brought he was a citizen of South Carolina. That he was so at the time of the original transaction may be presumed or inferred from the circumstances ; but to confer or oust jurisdiction, when that depends on citizenship, the necessary facts must be distinctly alleged and admitted or proved. Upon the present state of the record, the assumption could not have been made in his fawor to sustain the jurisdiction if he were seeking as a citizen of South Carolina to prosecute a suit ; and equally it will not be made to defeat the jurisdiction, which otherwise is rightly invoked by the complainant. It is further objected that the jurisdiction in equity cannot be sustained, because the complainant had a complete and adequate remedy at law, so far, at least, as relief is sought against the stockholders individually upon their statutory liability. That liability is a joint and several personal obligation of all the members of the company, unlimited except by the amount of the debts and »contracts of the corporation, to which it extends. It is unconditional, original, and immediate, not dependent on the insufficiency of corporate assets, and not collateral to that of the corporation, upon the event of its insolvency. It is, in one aspect, a suretyship for the corporation, for by sect. 37 of the act any stockholder paying a debt of the company for which he is personally liable is entitled to an action against it for indemnity, in which he may take the corporate assets, but is without recourse upon the property of any other stockholder. The jurisdiction in equity, then, cannot rest upon the administration of a trust fund, as in cases where delinquent stockholders are charged with the obligation to make good their subscriptions to unpaid capital stock, or in those where a constitutional or statutory liability is imposed beyond the 182 Manufacturing Co. v. Bradley. [Sup. Ct. amount of the subscription, to a fixed sum, but on each in proportion to his share in the capital stock. There the necessity of enforcing a trust, marshalling assets, and equalizing contributions, constitutes a clear ground of equity jurisdiction. The statute under consideration prescribes no form of action, and the jurisdiction may be regarded as concurrent, both at law and in equity, according to the nature of the relief made necessary by the circumstances upon which the right arises. The thirty-fifth section of the act expressly authorizes separate actions at law against the company and against its officers, in cases where, by the statute, the latter are made personally liable for defined delinquencies; while the thirty-sixth section provides that the property of stockholders, in cases where they are liable, may be taken on attachment or execution issued against the company. In the present case there was an acknowledged jurisdiction to grant equitable relief, by enforcing the lien of the bond upon the corporate property, and as incident to that to make a decree against the corporation for the payment of the debt. Having jurisdiction for that purpose, it is entirely consistent with its principles and practice for a court of equity to extend it, so as to avoid a multiplicity of suits, and to give to the plaintiff a single and complete remedy. As the individual stockholder is bound by the judgment against the corporation, it is equitable that he should be present as a party, that he may have the opportunity to defend for himself; and in case of payment out of his property he is entitled to be subrogated to the right of the creditor against the company, in order to indemnify himself out of the corporate assets. On these grounds, we think, the jurisdiction in equity is well supported. IL The remaining grounds of defence have been, in effect, anticipated in the statement of the case. They are without merit or substance. The title of the complainant to the bond sued on cannot be assailed for want of authority in the receiver to transfer it, even if such a defence was open to the obligors, for it sufficiently appears that the transaction, if not previously authorized, was subsequently confirmed by the court. Nor does the relation between Corbin and the company at the time of the transaction furnish any defence, either at law Oct. 1881.] United States v. Hunt. 183 or in equity. The relation undoubtedly was one of a confidential and fiduciary character, but there seems to be no ground in the evidence to challenge the good faith with which the business was conducted. The bond of the company was purchased from the receiver with his own means, and not those of the company ; the value paid, so far as the testimony discloses, was full; and every step, when taken, was made known and assented to by the directors of the corporation. The transaction was legitimate in itself and beneficial to the company, and the dealing was not by the president with himself, but with the corporation, in fact, represented and acting by other directors, with full knowledge of all the facts. A defence of payment was suggested by the circumstance that the receiver, after parting with the bond in exchange for the stock, reported it as paid in that way. So far as the fund in his hands was concerned, it might be so treated; but the company and its stockholders must be conscious that they have no right so to consider it. We find no error in the decree, and it is accordingly Affirmed. United States v. Hunt. 1. In a suit upon the official bond of A., approved July 19,1866, on which day he entered upon duty as collector of internal revenue, and continued therein until May 23, 1867, the United States offered in evidence a duly certified treasury transcript of his accounts. The defendants objected to the evidence on the ground that the bond related solely to his second term of office, and that the balance shown by the transcript was the result of transactions which occurred during his first and second terms, and after the appointment and qualification of his successor. In support of the objection, the defendants produced the bond of his successor, approved April 29,1867. Held, that it was irregular to permit the defendants, in support of their objections, to put in evidence going to the merits of their defence, and that the bond did not show when A.’s successor entered upon duty. 2. That the transcript was admissible, inasmuch as it is entirely consistent with the description of the assessment lists of dates prior to July, 1866, and of those subsequent to May 23, 1867, that the taxes were actually received by him during his second term, and, were it otherwise, the objectionable items could, on mere inspection, be excluded from the account. 184 United States v. Hunt. [Sup. Ct. 2. Receipts signed by A. for the aggregate amount of the alphabetical lists, although the latter show in detail the names of persons assessed and the amount severally due from each, are competent evidence for the United States, as is also the original statement signed by him, showing the amounts collected and the amounts abated as uncollectible during the month, and those collected May 18, 1867. Error to the Circuit Court of the United States for the Southern District of Mississippi. The case is stated in the opinion of the court. The Solicitor-General for the United States. Mr. William L. Nugent for the defendants in error. Mr. Justice Matthews delivered the opinion of the court. This was an action brought by the United States upon the official bond of Fidelio S. Hunt, as collector of taxes, under the Internal Revenue Act, for the second district of Mississippi. He died pending the suit, and it was revived against his executrix. The other defendants were sureties. The condition of the obligation was that the said Hunt “ shall truly and faithfully execute and discharge all the duties of the said office according to law, shall justly and faithfully account for and pay over to the United States, in compliance with the orders and regulations of the Secretary of the Treasury, all public moneys which may come into his hands or possession,” &c. It is alleged in the declaration that the bond was delivered and approved on July 19, 1866, on which day Hunt entered upon the discharge of the duties of his said office, and continued therein until on or about May 23, 1867. The breach alleged was that during that period he became indebted to the United States in the sum of 8139,463.15, received by him as such collector for and on account of taxes due to the United States, being a balance reported to be due from him upon the adjustment of his account as such collector in the Treasury Department, of which a duly certified copy was filed, and which he had refused to pay. The sureties filed joint pleas, and the executrix pleaded separately. The pleas were alike, and amounted to a general denial of every allegation necessary to constitute a liability. There was a judgment for the defendants. The United Oct. 1881.] United States v. Hunt. 185 States sued out this writ, and the errors which are assigned arise upon the rulings of the court upon questions of evidence, presented by a bill of exceptions. The plaintiff offered in evidence the certified transcript of Hunt’s account from the books of the Treasury Department. The certificate of the fifth auditor, accompanying it, states that he has examined and adjusted “ an account between the United States and Fidelio S. Hunt, late collector for the 2d district of Mississippi, from July 19th, 1866, to May 23d, 1867, and find him chargeable as follows, under bond approved July 19th, 1866.” The debit side of the account is, “ to amount of assessment lists receipted for, per form 23|, viz.” Its first item is dated July 28, 1866, and is to “ amount receipted for as December, 1865, list.” It also embraces similar debits, of the same and subsequent dates of entry, for lists of January, February, April, May, and June, 1866. The last five items on the same side of the account bear date, as to the entries, subsequently to May 23, 1867, but are for amounts receipted for as lists of January, 1866, April and May, 1867. The credit side of the account contains items of cash paid at dates subsequent to May 23, 1867, and also gives credit for amounts collected by his successors in office on lists he receipted for, and also for amounts collected by him as collector under the first bond on lists receipted for by him as collector under the second bond. This statement of account shows a balance due the United States of the amount claimed in the declaration. The transcript included, as part of the statement of account and explanatory of it, a statement of differences, showing and accounting for the discrepancies between the balance exhibited by the collector’s own account and that ascertained by the adjustment. From this it appeared that the balance due the United States by the collector’s account to March 31, 1867, since which date he had rendered none, was 876,756.17, showing a difference to his debit of 862,706.98. This is explained, in part, by showing the whole amount of assessments of form 23| charged under his first bond and under his second bond separately, which he had failed to give correct credit for, to the amount of 8137,430.78; in part, by showing the amount of cash deposited by him under his first and second bonds respec 186 United States v. Hunt. [Sup. Ct. tively, and that he had twice credited himself with 8169,517.83 on account thereof; and by other errors, the whole amounting to 8702,434.36. On the other hand, this is reduced to the sum of 862,706.98, the difference to be accounted for, by credits for taxes abated by the adjustment, by credits therein for collections by successors in office, on bills receipted for by him during his term, and by amount claimed and credited in his accounts as collections on cotton. A list of warrants covering into the treasury, the amounts of cash deposited, is appended, showing the amount of each, and on account of which bond it was paid. To the introduction in evidence of this transcript objection was made on the part of the defendants, “ upon the grounds that the balance exhibited by the said account is the result of the transactions of both terms of the defendant’s service, whereas the suit is upon a bond which covers only the transactions of the second term; and because it embraces transactions made by the collector after his removal from office and after the appointment and qualification of his successor, and the balance is in part made up of these transactions, occurring when the collector no longer sustained any official relation to the United States, and after the alleged breach had occurred.” And in support of their said objections, the defendants by their attorneys, the bill of exceptions proceeds to state, introduced in evidence the bond of Martin Keary, the successor of the said Hunt as such tax-collector, showing that the same was approved on April 29, 1867. Thereupon the objections to the introduction of the certified account in evidence were by the court sustained, and the same was excluded, the court holding that the said certified statement should stand and be considered only as a bill of particulars annexed to plaintiff’s declaration. This ruling was excepted to and is assigned for error. It was an irregularity to permit the defendant to interject into the plaintiff’s case testimony upon the merits of the defence in support of his objection that the evidence offered was irrelevant, and the testimony interposed was not by itself sufficient to establish the date on which Hunt ceased to hold an official relation to the United States as collector, for it did not show when his successor actually entered upon the dis Oct. 1881.] United States v. Hunt. 187 charge of the duties of the office. But passing by, without further comment, these minor errors, we find that the objection to the transcript of the account, as matter of evidence, is without foundation, either in fact or in law. It was assumed on both sides, though there is no proof to that effect in the record, that Hunt had filled a prior term as collector, being his own successor, and it was admitted that his second term commenced on July 19j 1866. The objectionable items in the first part of the account charge him with amounts of assessment lists receipted for per form 23 j on dates subsequent to the beginning of his second term, though being described as lists for specified months prior to July, 1866, it is argued that he could not be chargeable upon his second bond with those sums. But this does not follow; for it is entirely consistent with the description of the lists, that the collector actually received the taxes paid upon them, after the date of his second term, and just as he is charged with them in this account. And so, on the other hand, with similar items charged upon receipts of assessment lists, of dates subsequent to May 23, 1867, the alleged date when his second term expired. It is consistent with the nature of those charges that they were for moneys received on account of taxes paid on account of these lists, and received by him before the end of his second term. The account charges him with distinct sums of money collected by him. They are identified by reference to assessment lists for particular months, and then by the dates of his receipts to the government for the lists, upon form 23|. No dates are traced in the account as those on which the taxes were actually collected by him, but the certificate of the Treasury Department declares it to be' an account between the United States and the collector from the beginning to the end of the period covered by the bond in suit, and there is nothing on the face of the account which necessarily contradicts this statement. The certificate has the legal effect of making the transcript prima facie evidence of the fact of indebtedness which it certifies, unless upon the face of the account it necessarily appears to be otherwise. But the ruling of the court in excluding the transcript is equally untenable upon the contrary supposition, that the 188 United States v. Hunt. [Sup. Ct. items on account of which the objection was sustained, were on their face such as could not be charged against the defendants upon the bond in suit. For, rejecting these items, there remained many others with which the collector and his sureties upon his second bond were admitted to be chargeable, and the transcript was clearly admissible in proof of these. The presence of the objectionable items could not prejudice the defendants, for on the supposition, they were separable from the remainder of the account by mere inspection. On the other hand, their presence might be important to the government, as explanatory of corresponding items upon the credit side Of the account; particularly in view of the ruling of the court, which rejected the transcript as evidence against the defendants, but required it to remain upon the record as proof against the United States. For the same reasons the subsequent ruling of the court must be held to be erroneous, by which it excluded the receipts of the collector on form 23J, which constituted the items upon the debit side of the account. Even if the receipts alone were not sufficient in each case to charge the collector with the sums charged as taxes collected upon the assessment lists, nevertheless they were competent evidence which, by other testimony, might be made full proof, until overcome by a successful defence. The ground of the objection was that the form 23 j was a receipt for alphabetical lists, showing in detail the names of persons assessed for taxes and the amounts severally due from each, and that these alphabetical lists were primary and better evidence to charge the collector than the receipt on form 23J, which expressed merely, the aggregate amount of the alphabetical lists. But the receipts offered were signed by the collector, on their face constituted a part of his official transactions, and fomed the very basis of the account against him upon the books of the Treasury Departments. The originals would be competent against him, for they are not secondary evidence, although they may show the existence of other documents more in detail. The law gives to a copy certified by the Treasury Department at least the same force in evidence which the original would otherwise have. Oct. 1881.] Root v. Railway Co. 189 The ruling of the court rejecting the original statement signed by the collector, showing the amounts collected and the amounts abated as uncollectible during the month, and those collected on May 18,1867, was likewise erroneous for the same reasons. For these errors the judgment of the Circuit Court is reversed, with instructions to grant a new trial; and it is So ordered. Root v. Railway Company. A., to whom had been assigned letters-patent, filed, after the expiration of them, which took place July 6,1873, his bill against B,, charging that the latter had during their term infringed them by using the patented invention, whereby he realized gains, profits, and savings, which he should be compelled to account for and pay to the complainant. The bill was, on demurrer, dismissed. Held, that the decree below is proper, the bill being merely for an account of profits and damages against an infringer, and it not appearing from the case thereby made that any ground of equitable jurisdiction exists, or that A. has not a complete remedy at law whereby damages for the wrongs complained of can be recovered. Appeal from the Circuit Court of the United States for the Northern District of Illinois. Tiie facts are stated in the opinion of the court. Mr. Albert H. Walker for the appellant. Mr. George Payson for the appellee. Mr. Justice Matthews delivered the opinion of the court. Thomas Sayles, as assignee of the letters-patent originally granted to Henry Tanner for an improvement in railroad car brakes, dated July 6, 1852, and which, on July 5, 1866, were renewed and extended for the additional term of seven years, which expired July 6, 1873, filed his bill in the court below on Dec. 9, 1878, against the Lake Shore and Michigan Southern Railway Company. He avers that, by virtue of the assignments to him, he was invested with all rights of action for in-fringements of the patent which had occurred, and particularly 190 Root v. Railway Co. [Sup. Ct. those of which it was alleged the defendant had been guilty from Aug. 6, 1869, to July 6, 1873, having, as is averred, during that period, used upon its railroad cars the patented brakes, but how many, the bill states, the complainant is ignorant and cannot set forth, but avers that the number so used was large, and that defendant had derived, received, and realized great gains and profits therefrom, but to what amount he is ignorant and cannot set forth. The prayer of the bill is that the defendant may be compelled to account for and pay to the complainant all the gains, profits, and savings which it derived, received, or realized from or by reason of the use of said brakes. To this bill a general demurrer was filed, alleging, as grounds thereof, that the bill does not contain any matter of equity on which the court could grant any relief, and that the complainant is not entitled to the relief prayed for, because he had a plain, adequate, and complete remedy at law, and also because it appeared on the face of the bill that the causes of complaint were barred by the Statutes of Limitation both of the United States and of the State of Illinois. This demurrer was sustained and the bill dismissed. The decree of the Circuit Court was brought here for review. Sayles having died, Charles T. Root was, as his executor, substituted in this court as the appellant. The propositions mainly relied upon by the appellee in support of the decree, are, — First, That after the expiration of a patent, equity has no jurisdiction to entertain a bill, merely for an account and the recovery of the profits of an infringer, during its existence, the remedy being at law for damages ; and, Second, That, even if, in certain cases, such a jurisdiction exists, the present does not fall within it. On the other hand, it is contended on the part of the appellant that, in cases for the enforcement of the rights of patentees, resort may be had, as matter of right, to a court of equity, as a distinct head of its jurisdiction, for the mere purpose of establishing an infringement and ascertaining and recovering the profits of the infringer, upon the independent equity that he is for that purpose a trustee of his gains for the Oct. 1881.] Root v. Railway Co. 191 use of the true owner of the patent and liable to account as such. In support of this contention, we are referred by his counsel to numerous decisions of the Circuit Courts, many of which, it is claimed, are directly upon the point, and to several cases in this court, in which, it is alleged, the same doctrine is either virtually decided or assumed; which, it is further argued, though not supported by the modern decisions of the English chancery, is found in its earlier precedents. An examination of the practice and opinions of the Circuit Courts undoubtedly shows much diversity, incapable of reconciliation, and makes it necessary, as far as it can be done, by a deliberate judgment of this court, to remove the question out of its present uncertainty, by a settlement upon some basis of principle, in harmony with our system of equity jurisprudence, developed and modified by legislation. To effect this satisfactorily and intelligently, it will be necessary to review the course of legislation, and judicial decision in this court, so far as it bears upon the question from the beginning. Prior to the passage of the act of Feb. 15,1819, c. 19 (3 Stat. 481), Congress had passed three laws, in execution of the power conferred by the Constitution itself, and in furtherance of the policy thereby indicated, to secure to inventors an exclusive right of property in their inventions. The first of them, the act of April 10, 1790, c. 7 (1 Stat. 109), gave as a remedy for its violation an action at law upon the case for damages, and forfeited the infringing article. The next was the act of Feb. 21, 1793, c. 11 (1 Stat. 318), which fixed the rule and measure of damages recoverable in an action at law upon the act at three times the price at which the patentee had usually sold or licensed to other persons the use of the invention. This was changed by the act of April 17, 1800, c. 25 (2 Stat. 37), to three times the actual damage sustained by the patentee by reason of the infringement. By neither of these acts, however, was any jurisdiction conferred upon the courts of the United States in equity. In Livingston v. Van Ingen (1 Paine, 45), Mr. Justice Livingston held that to vest such jurisdiction by reason of the subject-matter, as a case arising under the laws of the United States, to be exercised in controversies between parties, without regard to their citi 192 Root v. Railway Co. [Sup. Ct. zenship, it required the express authority of an act of Congress ; and the parties to that suit being citizens of New York, the bill was dismissed. The controversy was thereupon renewed in the courts of that State; and the Chancellor having refused the injunction asked for, it was brought by appeal into the court for the correction of errors. 9 Johns. (N. Y.) 507. It was there objected that the right in question rested upon statute alone, which prescribed remedies at law for its violation, which, it must be deemed, were intended to be exclusive. But the decision affirmed the jurisdiction. “ The principle is,” said Kent, C. J. (p. 587), “ that statute privileges, no less than common-law rights, when in actual possession and exercise, will not be permitted to be disturbed until the opponent has fairly tried them at law and overthrown their pretension.” The same learned judge refers also to the practice of the Federal courts in granting injunctions under the patent law, mentioning two instances, — one, the case of Morse v. Reid., an injunction bill filed in 1796 to restrain the invasion of a copyright; the other, Whitney v. Fort, in which an injunction was granted to restrain the violation of the patent for the cotton-gin. Of course, in those cases the jurisdiction of the court depended on the citizenship of the parties. Congress then passed the act of Feb. 15, 1819, c. 19, which enacted “that the Circuit Courts of the United States shall have original cognizance, as well in equity as at law, of all actions, suits, controversies, and cases arising under any law of the United States, granting or confirming to authors or inventors the exclusive right to their respective writings, inventions, and discoveries; and upon any bill in equity, filed by any party aggrieved in any such cases, shall have authority to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of the rights of any authors or inventors secured to them by any law of the United States, on such terms and conditions as the said courts may deem fit and reasonable.” In the case of Sullivan v- Redfield (1 Paine, 441), which was decided in 1825, Mr. Justice Thompson, who in the Livingston case had sat as one of the judges of the State court, had occasion to consider the nature of the equity jurisdiction in patent Oct. 1881.] Root v. Railway Co. 193 suits. “ The equity jurisdiction,” he said, “ exercised by the court over patents for inventions is merely in aid of the common law, and in order to give more complete effect to the provisions of the statute under which the patent is granted.” And in answer to the argument that the act of 1819 gave a peremptory right to an equitable remedy by virtue of the patent itself, he said : “ This act does not enlarge or aitei’ thè powers of the court over the subject-matter of the bill or the cause of action. It only extends its jurisdiction to parties not before falling within it. Before this act it had been held that a citizen of one State could not obtain an injunction in the Circuit Court for a violation of a patent-right against a citizen of the same State, as no act of Congress authorized such suit. This act removed that objection and gave the jurisdiction, although the parties were citizens of the same State. But in the exercise of the jurisdiction in all cases of granting injunctions to prevent the violation of patent-rights the court is to proceed according to the course and principles of courts of equity in such cases. So that the questions presented in the present case are precisely where they would have been without this act.” The substance of the act of 1819 was incorporated into the seventeenth section of the act of July 4, 1836, c. 357 (5 Stat. 117), so far as it related to inventors, but remained in force, after the passage of the latter act, so far as it gave cognizance to the courts of the United States of cases of copyright. It was under that provision of the act of 1819 that the case of Stevens v. Gladding arose and was decided. 17 How. 447. That was a bill for an injunction to restrain the violation of a copyright, and prayed for the recovery of the penalties given by the seventh section of the act of Feb. 3, 1831, c. 16, and for general relief. Mr. Justice Curtis, delivering the opinion of the court, said : “ There is nothing in this act of 1819 which extends the equity powers of the courts to the adjudication of forfeitures ; it being manifestly intended that the jurisdiction therein conferred should be the usual and known jurisdiction exercised by courts of equity for the protection of analogous rights. The prayer of this bill for the penalties must, therefore, be rejected. The remaining question is whether there ought to be a decree for an account of the profits. The com-vol. xv. 13 194 Root v. Railway Co. [Sup. Ct. plainant has not prayed for such an account, nor have the defendants stated one in their answer; but the bill does pray for general relief. The right to an account of profits is incident to the right to an injunction in copy and patent right cases,” citing Colburn v. Simms, 2 Hare, 554; 3 Dan. Ch. Pr. 1797. “ And this court has held, in Watts et al. v. Waddle et al. (6 Pet. 389), that where the bill states a case proper for an account, one may be ordered under the prayer for general relief.” The seventeenth section of the act of 1836 differs from the act of 1819 in one other particular only. It makes the jurisdiction in patent causes of the court of the United States exclusive. It was under the act of 1836 that the question arose for the first time, in Livingston v. Woodivorth (15 How. 546), as to the rule for computing the profits of an infringer, upon a decree for such an account. The bill was for an injunction and account. The validity of the patent and the fact of infringement were both admitted by the defendant, who consented to a decree requiring him to account for and pay over the gains and profits made by him, during the infringement, in accordance with the prayer of the bill. The decree confirmed the report of the master, who awarded, not actual gains and profits, but such as he estimated the defendant might have made by due diligence. It was argued, in support of the decree, that where the court has jurisdiction to give the principal relief sought, it will make a complete decree, and give compensation for the past injury, as in bills for specific performance and injunction bills for waste; and that it was a correct rule to hold the party accountable, as an involuntary trustee, for what the patentee might have realized by the same exercise of the right, as a court of equity sometimes forces the character of a trustee upon an intruder, or wrong-doer, or one in possession under color of right, or who takes rents or profits belonging to another, or might have taken them, as in cases of mortgagees ; but it was admitted that the case was of first impression. The decree, upon this point, was reversed. The court said : “ We are aware of no rule which converts a court of equity into an instrument for the punishment of simple torts. ... If the appellees, the plaintiffs below, had sustained Oct. 1881.] Root v. Railway Co. 195 an injury to their legal rights, the courts of law were open to them for redress, and in these courts they might, according to a practice which, however doubtful in point of essential right, is now too inveterate to be called in question, have claimed, not compensation merely, but vengeance, for such injury as they could show they have sustained. But before a tribunal which refuses to listen even to any, save those whose acts and motives are perfectly fair and liberal, they cannot be permitted to contravene the highest and most benignant principle of the being and constitution of that tribunal. There they will be allowed to claim that which, ex aequo et bono is theirs, and nothing beyond this.” p. 559. The account was, therefore, restricted to the actual gains and profits of the appellants during the time their machine was in operation. This rule in relation to the profits recoverable in such suits was followed in Dean v. Mason (20 How. 198), which was a case of a bill for an injunction and account, in which a decree pro confesso had been taken. The final decree was entered, on the report of the master, for the estimated amount of profits which the defendant, with reasonable diligence, might have realized; not what, in fact, he did realize. This was held to be erroneous. The court said: “ The rule in such a case is, the amount of profits received by the unlawful use of the machines, as this, in general, is the damage done to the owner of the patent. It takes away the motive of the infringer of patented rights by requiring him to pay the profits of his labor to the owner of the patent. Generally, this is sufficient to protect the rights of the owner; but where the wrong has been done, under aggravated circumstances, the court has the power under the statute to punish it adequately by an increase of the damages.” The important case of Seymour n. McCormick (16 How. 480) was decided in 1853. That was an action at law. The court below instructed the jury that the actual damages to which the plaintiff was entitled, for an infringement of a patent foi' an improvement in a machine, might be determined by ascertaining the profits which in judgment of law he would have made, provided the defendants had not interfered with his rights, and that the same rule applied whether the patent covered an entire machine or merely an improvement on a 196 Root v. Railway Co. [Sup. Ct. machine. This instruction this court held to be erroneous, and reversed the judgment on that account. Mr. Justice Grier, in delivering the opinion of the court, referred to the rule of damages, prescribed by the acts of Congress, previously in force, stating that “ experience had shown the very great injustice of a horizontal rule equally affecting all cases, without regard to their peculiar merits; ” and that it was to obviate this that the Patent Act of 1836 confined the jury to the assessment of actual damages, leaving it to the discretion of the court to inflict punitive damages to the extent of trebling the verdict. He then remarked : “ It must be apparent to the most superficial observer of the immense variety of patents issued every day, that there cannot, in the nature of things, be any one rule of damages which will equally apply to all cases. The mode of ascertaining actual damages must necessarily depend on the peculiar nature of the monopoly granted. A man who invents or discovers a new composition of matter, such as vulcanized india-rubber or a valuable medicine, may find his profit to consist in a close monopoly, forbidding any one to compete with him in the market, the patentee being himself able to supply the whole demand at his own price, in which cases “ the profit of the infringer may be the only criterion of the actual damage of the patentee; ” that “ one who invents some improvement in the machinery of a mill could not claim that the profits of the whole mill should be the measure of damages for the use of his improvement; and where the profit of the patentee consisted neither in the exclusive use of the thing invented or discovered, nor in the monopoly of making it for others to use, it is evident that this rule could not apply. The case of Stimpson’s patent for a turnout in a railroad may be cited as an example. It was the interest of the patentee that all railroads should use his invention, provided they paid him the price of his license. He could not make his profit by selling it as a complete and separate machine. An infringer of such a patent could not be liable to damages to the amount of the profits of his railroad, nor could the actual damages of the patentee be measured by any known ratio of the profits of the road. ... It is only where, from the peculiar circumstances of the case, no other rule can be found that the defendant’s Oct. 1881.] Root v. Railway Co. 197 profits become the. criterion of the plaintiff’s loss. Actual damages must be actually proved, and cannot be assumed as a legal inference from any facts which amount not to actual proof of the fact.” Accordingly it was held in Corporation of New York v. Ransom (23 How. 487), where the rule in Seymour v. Me Cormick (supra) was expressly approved, that in an action at law, if the plaintiff rested his case, after proof of infringement merely, he wras entitled only to nominal damages. It was also applied in Jones v. Morehead (1 Wall. 155) which was a bill in equity for an injunction and an account, where a decree for a large sum as profits had been rendered against the defendant, upon an entire machine, in respect to which it appeared as matter of fact that the defendants had not infringed the patent sued on, but had admitted to the contrary in the answer. The court construed this admission by applying it to the smallest number of patented articles, and to the use of any part of the patent found to be valid, and, reversing the decree, ordered one to be entered for a 44 nominal sum of one dollar for profits.” In Rubber Company v. Goodyear (9 Wall. 788), which was a bill for an injunction and account, a decree for a large sum was rendered in favor of the complainants, which was affirmed on appeal. 44 The rule,” said Mr. Justice Swayne, delivering the opinion of the court, 44 is founded in reason and justice. It compensates one party and punishes the other. It makes the wrong-doer liable for actual, not possible, gains. The controlling consideration is that he shall not profit by his wrong. A more favorable rule would offer a premium to dishonesty and invite to aggression. The jurisdiction of equity is adequate to give the proper remedy, whatever phase the case may assume; and the severity of the decree may be increased or mitigated according to the complexion of the conduct of the offender.” Mowry v. Whitney (14 Wall. 620) was also a bill in equity for an injunction and account. A decree was rendered in favor of the complainant for all the profits on the manufactured article, instead of upon the patented process of manufacture, with interest added. On appeal, this court reversed the decree on that point, saying: “ The question to be deter 198 Root v. Railway Co. [Sup. Ct. mined in this case is, what advantage did the defendant derive from using the complainant’s invention, over what he had in using other processes then open to the public and adequate to enable him to obtain an equally beneficial result. The fruits of that advantage are his profits. . . . That advantage is the measure of profits.” On the question of interest, Mr. Justice Strong, speaking for the court, said: “ We add only that, in our opinion, the defendant should not have been charged with ihterest before the final decree. The profits which are recoverable against an infringer of a patent are in fact a compensation for the injury the patentee has sustained from the invasion of his right. They are the measure of his damages. Though called profits, they are really damages, and unliquidated until the decree is made. Interest is not generally allowable upon unliquidated damages. We will not say that in no possible case can interest be allowed. It is enough that the case in hand does not justify such an allowance.” In Packet Company n. Sickles (19 Wall. 611), which was an action at law, the rule established in Seymour v. McCormick (supra) was reiterated, as “ the established criterion of damages in cases to which it was applicable.” “ In cases where there is no established patent or license fee in the case, or even an approximation to it, general evidence must necessarily be resorted to,” as was said by the court in the case of Suffolk Company v. Hayden, 3 Wall. 315. “ And what evidence,” said Mr. Justice Nelson, in that case, p. 320, “ could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used for working out similar results? With a knowledge of these benefits to the persons who have used the invention, and the extent of the use by the infringer, a jury will be in possession of material and controlling facts that may enable them, in the exercise of a sound judgment, to ascertain the damages, or, in other words, the loss to the patentee or owner by the piracy instead of the purchase of the use of the invention.” He added that “ a recovery does not vest the infringer with the right to continue the use, as the consequence of it may be an injunction restraining the defendant from the further use of it.” Oct. 1881.] Root v. Railway Co. 199 In Packet Company v. Sickles (supra'), Mr. Justice Miller said : “ The rule in suits in equity, of ascertaining by a reference to a master the profits which the defendant has made by the use of the plaintiff’s invention, stands on a different principle. It is that of converting the infringer into a trustee for the patentee as regards the profits thus made ; and the adjustment of these profits is subject to all the equitable considerations which are necessary to do complete justice between the parties, many of which would be inappropriate in a trial by jury. With these corrective powers in the hands of the Chancellor, the rule of assuming profits as the groundwork for estimating the compensation due from the infringer to the patentee has produced results calculated to suggest distrust of its universal application even in courts of equity.” The doctrine of this case was reiterated in Burdell v. Denig (92 U. S. 716), where Mr. Justice Miller, again delivering the opinion of the court, said : — “Profits are not the primary or true criterion of damages for infringement in an action at law. That rule applies eminently and mainly to cases in equity, and is based on the idea that the infringer shall be converted into a trustee, as to those profits, for the owner of the patent which he infringes ; a principle which it is very difficult to apply in a trial before a jury, but quite appropriate on a reference to a master, who can examine defendant’s books and papers, and examine him on oath, as well as all his clerks and employés. On the other hand, we have repeatedly held that sales of licenses of machines, or of a royalty established, constitute the primary and true criterion of damages in the action at law. No doubt, in the absence of satisfactory evidence of either class in the forum to which it is most appropriate, the other may be resorted to as one of the elements on which the damages or the compensation may be ascertained.” Littlefield v. Perry (21 Wall. 205) was one where the patentee, by force of an agreement, held the legal title to the patent in trust for the complainant, in violation of which he was making use of his legal rights. It was held, upon a bill filed for an injunction and account, that it was a case under the patent laws, and the defendant was required to account for the 200 Root v. Railway Co. [Sup. Ct. profits he had made, according to the rule in Mowry v. Whitney^ supra. The Chief Justice said, p. 230: “Profits actually realized are usually, in a case like this, the measure of unliquidated damages. Circumstances may, however, arise which would justify the addition of interest in order to give complete indemnity for losses sustained by wilful infringements.” By the act of July 8, 1870, c. 230, Congress revised, consolidated, and amended the statutes relating to patents and copyrights. 16 Stat. 198. The fifty-ninth section renewed the provision previously in force, that damages for infringement might be recovered by action on the case, and that whenever, in any such action, a verdict shall be rendered for the plaintiff, the court may enter judgment therein for any sum above the amount found by the verdict as the actual damages sustained, according to the circumstances of the case, not exceeding three times the amount of the verdict. The fifty-fifth section is as follows : — “ That all actions, suits, controversies, and cases arising under the patent laws of the United States shall be originally cognizable, as well in equity as at law, by the Circuit Courts of the United States, or any District Court having the power and jurisdiction of a Circuit Court, or by the Supreme Court of the District of Columbia, or of any Territory; and the court shall have power, upon bill in equity filed by any party aggrieved, to grant injunctions, according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, on such terms as the court may deem reasonable; and upon a decree being rendered in any such case for an infringement, the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby, and the court shall assess the same or cause the same to be assessed under its direction, and the court shall have the same powers to increase the same in its discretion that are given by this act to increase the damages found by verdicts in actions upon the case; but all actions shall be brought during the term for which the let-ters-patent shall be granted or extended, or within six years after the expiration thereof.” These provisions are substantially carried into the Revised Statutes, sect. 59 of the act of 1870, being sect. 4919 of the Oct 1881.] Root v. Railway Co. 201 latter, and sect. 55 corresponding to sect. 4921 Rev. Stat., except as to the provision in respect to the limitation upon the right to sue, which is not found in the Revised Statutes. But the rights of the parties in the present suit arose while the act of 1870 was in force, and are determinable under it. In the case of Birdsall v. Coolidge (93 U. S. 64) it is declared, in reference to the effect of the act of 1870, that w gains and profits are still the proper measure of damages in equity suits, except in cases where the injury sustained by the infringement is plainly greater than the aggregate of what was made by the respondent; ” in which event the provision is, that the complainant “ shall be entitled to recover, in addition to the profits to'be accounted for by the respondent, the damages he has sustained thereby.” Mr. Justice Clifford, in the opinion in this case, quotes a passage, slightly altered, from Curtis on Patents, sect. 341 a (4th ed.), p. 461, which, taken by itself, might seem to imply that prior to the act of 1870 the owner of a patent had the election to resort to a court of equity for the recovery of profits, or a court of law for damages, irrespective of any other relief of an equitable character; but the language of the passage is to be restrained to mean merely that the option existed to sue at law for past infringement, or seek equitable relief by way of prevention, the damages or profits following, as either jurisdiction is resorted to, each according to its kind. For if this be not so, it follows that since the passage of the act of 1870 an owner of a patent may recover, in a suit in equity, profits and damages in all cases, according to the rule above stated, without seeking any other relief whatever, the effect of which would be to give two remedies, one in equity, the other at law, merely for the recovery of damages for an injury to a legal right, an anomaly not to be found in any other branch of our jurisprudence. And manifestly, upon such a construction, the action at law would soon become obsolete, as completely as if it had been abolished by legislation. The whole force of the change in the statute consists in conferring upon courts of equity, in the exercise of their jurisdiction in administering the relief, which they are accustomed and authorized to give, and which is appropriate to their forms of procedure, the power 202 Root v. Railway Co. [Sup. Ct. not merely to give that measure of compensation for the past, which consists in the profits of the infringer, but to supplement it, when necessary, with the full amount of damage suffered by the complainant, and which, if he had sued for that alone, he would have recovered in another forum, with power to increase the amount of the actual damages, as in courts of law. But as the account of profits, previously, was the incident of the suit, and not its object, so now the power to award damages and to multiply them is added as an incident to the right to an account. But the difference between the state of the law before and after the act of 1870 finds its best illustration in a comparison between two cases, both of which were decided at the October Term, 1877, Elizabeth v. Pavement Company, 97 U. S. 126, and Marsh v. Seymour, id. 348. In the former the bill was filed before the passage of the act, but prayed, besides an injunction, for both damages and profits. It was held that the court below had rightly decided that a decree for profits alone could be rendered, inasmuch as the jurisdiction of courts of equity to decree damages, as distinct from profits, was first conferred by the statute. Mr. Justice Bradley, delivering the opinion of the court, remarking that the general question of the profits recoverable in equity by a patentee was surrounded with many difficulties, which the courts had not yet succeeded in overcoming, said : — “ But one thing may be affirmed with reasonable confidence, that, if an infringer of a patent has realized no profit from the use of the invention, he cannot be called upon to respond for profits; the patentee in such case is left to his remedy for damages. It is also clear that a patentee is entitled to recover the profits that have been actually realized from the use of his invention, although from other causes the general business of the defendant, in which the invention is employed, may not have resulted in profits, — as when it is shown that the use of his invention produced a definite saving in the process of a manufacture. Mowry v. Whitney, 14 Wall. 434; Cawood Patent, 94 U. S. 695. On the contrary, though the defendant’s general business be ever so profitable, if the use of the invention has not contributed to the profits, none can be recovered. The Oct. 1881.] Root v. Railway Co. 203 same result would seem to follow where it is impossible to show the profitable effect of using the invention upon the business results of the party infringing. It may be added, that, where no profits are shown to have accrued, a court of equity cannot give a decree for profits by way of damages, or as a punishment for the infringement. Livingston v. Woodworth, 15 How. 5C9. But when the entire profit of a business or undertaking results from the use of the invention, the patentee will be entitled to recover the entire profits, if he elects that remedy. And in such a case, the defendant will not be allowed to diminish the show of profits by putting in unconscionable claims for personal services or other inequitable deductions. .Rubber Company v. Goodyear, 9 Wall. 788.” And these general propositions, he added, will hardly admit of dispute. Accordingly, in that case, the bill was dismissed as to the city of Elizabeth, which ,had infringed, because it appeared that it had made no profit from the use of the patented improvement, while a decree was rendered against the contractor, who had laid the pavement which was the subject of the patent, because he was shown to have made profits from the infringement. The municipal corporation, of course, remained liable to respond in damages in an action at law for any loss which the- plaintiff could have established by proof. The cases of Marsh n. Seymour (supra} arose under the act of 1870, and were bills for injunction and account. Decrees were rendered in favor of the complainant, and a reference ordered to a master to state an account of profits. In both cases, the respondents showing that they had made no profits by reason of the use of the invention, the complainant waived his claim for a recovery on that account, and decrees were rendered for damages on the basis of a license fee for the infringing machines which had been sold, and nominal damages for those manufactured but not sold. These decrees were affirmed, the court saying, Mr. Justice Clifford delivering its opinion, that “ damages of a compensatory character may be allowed to a complainant in an equity suit, where it appears that the business of the infringer was so improvidently conducted that it did not yield any substantial profits, as in the case before the court.” 204 Root v. Railway Co. [Sup. Ct. In Parks v. Booth (102 U. S. 96), which was a suit in equity for an injunction, an account of profits and damages, under the act of 1870, a decree was rendered in favor of the complainant, and for profits and damages as found by a master. Under the head of damages there were included items for expenses of conducting the suit, being counsel fees, compensation for the complainant’s time, and interest on the profits. The decree was modified on appeal, by striking out all these allowances, except that for the complainant’s time, lost in attending to the suit. Interest on profits was, on the authority of Silsby v. Foote (20 How. 378), disallowed on the ground that profits in such a case are to be regarded in the light of unliquidated damages. No injunction was decreed, as the term of the patent had expired. It does not appear from the report of the case when the suit was begun, but a reference to the original record shows that the bill was filled in April, 1871, before the expiration of the term of the patent. Hendrie v. Sayles (98 U. S. 546) was a bill in equity for an account of profits, filed after the expiration of the patent, the same patent on which the present suit is founded. It was decided upon a single point raised on demurrer to the bill, the question of jurisdiction not being noticed either by counsel or court. A decree for the complainant was affirmed on appeal. This appears to be the only case of the kind, until the present, that found its way into this court. Bureka Company v. Bailey Company (11 Wall. 488) is no exception to this remark ; although in respect to it the observation has been made, that the injunction prayed for in that case was incidental to the account, and not vice versa. That, however, is a misconception; for, unless upon the ground of a difference of citizenship, the court would not have had jurisdiction to entertain the bill in that case, if it had not prayed for an injunction. For the mere purpose of enforcing the contract for the royalty, it was not a case arising under the patent laws, so as to give jurisdiction to the courts of the United States. It was because the defendant was guilty of an infringement of the complainant’s patent that he was suable in equity in these courts, and to restrain that an injunction was asked until he should pay what he had promised. The object of the Oct 1881.] Root v. Bailway Co. 205 suit doubtless was to collect the royalty; but it was sought by means of, and therefore as an incident to, the jurisdiction of the court, invoked for the purpose of enjoining the continuance of what, until the royalty was acknowledged and paid, was found to be an infringement. All the acts of Congress relating to patents prior to that of 1870 contained provisions specifying the special defences which might be made in an action at law for an infringement, under the plea of the general issue, notice thereof having been previously given. The sixty-first section of the act of 1870 enumerates the several special matters thus authorized to be proved, and adds, for the first time in the history of this legislation, the clause that “ the like defences may be pleaded in any suit in equity for relief against an alleged infringement, and proofs of the same may be given upon like notice in the answer of the defendant and with the like effect.” The plain and obvious purpose of this provision is to furnish appropriate modes in equity pleading for the trial of all issues, both of fact and law, relating both to the alleged infringement and the validity of the patent, without the necessity of framing special issues out of chancery for trial by jury, or sending the parties to a court of law for the trial of an action in that forum, in order to determine their legal right. It proceeds upon the idea that the court of equity having acquired jurisdiction for the purpose of administering the equitable relief sought by the bill, may determine directly and for itself, in the same proceeding, all questions incidental to the exercise of its jurisdiction, notwithstanding they may be questions affecting legal rights and legal titles. Although this was the first statutory authority for the practice, it was rather a recognition of what had already been established than its introduction ; for the practice had, in fact, originated long before, and was based upon well-known principles of equity jurisprudence. Whatever question may have existed in reference to it previously was settled in the courts of the United States by Groodyear n. Day (2 Wall. Jr. 283), a case argued by Webster and Choate, and decided by Mr. Justice Grier in 1852. That learned judge on that occasion said: “ It is true that in England the Chancellor will generally not grant a 206 Root v. Railway Co. [Sup. Ct. final and perpetual injunction in patent cases, when the answer denies the validity of the patent, without sending the parties to law to have that question decided. But even there the rule is not absolute or universal; it is a practice founded more on convenience than necessity. It always rests on the sound discretion of the court. A trial at law is ordered by a chancellor to inform his conscience ; not because either party may demand it as a right, or that a court of equity is incompetent to judge of questions of fact or of legal titles.” See also Orr v. Merrill, 1 Woodb. & M. 376. The distinction in the nature of the two proceedings, of an action at law and a suit in equity, is plainly pointed out in this section of the statute, the former as being an action for an infringement, the latter as a suit for relief against an alleged infringement. And while upon the words used in the fifty-fifth section of the act, it may be, that the jurisdiction in equity which is thereby conferred is not exhausted by the power to grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent, yet the statute immediately says, that it is upon a decree being rendered in any such case for an infringement — as though that was the only one — that the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby. It is impossible, we think, to maintain the claim that the language of this act, similar in that respect to the previous acts of 1819 and 1836, conferring jurisdiction in patent cases in equity as well as at law, was meant to obliterate the distinctions between these two jurisdictions, or even to confuse the boundaries between them, as it is alleged was done by the decision in the case of Nevins v. Johnson (3 Blatchf. 80), and perhaps in other subsequent circuit court decisions. Indeed, it is the settled doctrine of this court that this distinction of jurisdiction, between law and equity, is constitutional, to the extent to which the seventh amendment forbids any infringement of the right of trial by jury, as fixed by the common law. And the doctrine applies in patent cases as well as others. This court said in Parsons n. Bedford (3 Pet. 433), speaking Oct. 1881.] . Root v. Railway Co. 207 of the meaning intended by the framers of that amendment, that “by common law they meant what the Constitution denominated in the 3d article, LAW, not merely suits which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those where equitable rights alone were recognized and equitable remedies administered.” The rule was repeated in Fenn v. Holme (21 How. 481), in this language: “ In every instance in which this court has expounded the phrases, proceedings at the common law and proceedings in equity, with reference to the exercise of the judicial powers of the courts of the United States, they will be found to have interpreted the former as signifying the application of the definitions and principles and rules of the common law to rights and obligations essentially legal; and the latter as meaning the administration with reference to equitable as contradistinguished from legal rights, of the equity law as defined and enforced by the Court of Chancery in England. It becomes necessary, therefore, to consider what support there is in the general doctrines of equity for the contention of the appellant. It is the fundamental characteristic and limit of the jurisdiction in equity that it cannot give relief when there is a plain and adequate and complete remedy at law; and hence it had no original, independent, and inherent power to afford redress for breaches of contract or torts, by awarding damages; for to do that was the very office of proceedings at law. When, however, relief was sought which equity alone could give, as by way of injunction to prevent a continuance of the wrong, in order to avoid multiplicity of suits and to do complete justice, the court assumed jurisdiction to award compensation for the past injury, not, however, by assessing damages, which was the peculiar office of a jury, but requiring an account of profits, on the ground that if any had been made, it was equitable to require the wrong-doer to refund them, as it would be inequitable that he should make a profit out of his own wrong. As was said by Vice-Chancellor Wigram in Colburn v. Simms (2 Hare, 543), “the court does not by an account accurately measure the damage sustained by the pro 208 Root v. Railway Co. , [Sup. Ct. prietor of an expensive work from the invasion of his copyright by the publication of a cheaper book,” but, “ as the nearest approximation which it can make to justice, takes from the wrong-doer all the profits he has made by his piracy and gives them to the party who has been wronged.” Whether a bill for an account of profits against a wrong-doer would lie, independently of other equitable grounds for the intervention of the court, is a question, as was said by Lord Chancellor Brougham in Parrott v. Palmer (3 Myl. & K. 632), “ which has been oftentimes agitated, and has, perhaps, never received a clear and a general decision ; that is to say, a distinct judgment on the general proposition, with its limitations.” He concluded that, “ from the whole it may be collected that, although as to timber there exists considerable discrepancy, yet the sound rule is to make the account the incident and not the principal, where there is a remedy at law; but that mines are to be otherwise considered, and that as to them the party may have an account even in cases where no injunction would lie.” The supposed exception in cases of mines seems to rest upon a dictum of Lord Hardwicke in Jesus College v. Bloom (3 Atk. 262), that “ it was a sort of trade ; ” but the reference is to the case of Bishop of Winchester v. Knight (l.P. W. 406), where the bill prayed for an account of ore dug by the ancestor of the defendant, in respect to which the argument was, that being a personal tort it died with the person. The decision was that the plaintiff was not entitled; but on this point the Lord Chancellor said: “ It would be a reproach to equity to say, where a man has taken my property, as ray ore or timber, and disposed of it in his lifetime and dies, that in this case I would be without remedy. It is true as to the trespass of breaking up meadow or ancient pasture ground, it dies with the person ; but as to the property of the ore or timber, it would be clear, even at law, if it came to the executor’s hands, that trover would lie for it; and if it has been disposed of in the testator’s lifetime, the executor, if assets are left, ought to answer it.” It is plain from these observations that the assumed ground of the equity jurisdiction was the absence of any remedy at law. Powell v. Aiken 4 Kay & J. 343. It is now Oct 1881.] Root v. Railway Co. 209 clearly established in the English chancery “ that a bill will not lie for an account of timber felled any more than for any other money demand, except when the account is asked as an incident to an injunction, and that when the plaintiff has no right to an injunction, he has no right to an account, and his remedy is at law alone.” Per Sir Wm. M. James, L. J., in Higginbotham v. Hawkins, Law Rep. 7 Ch. App. 676. The same rule is applied by the modern decisions in cases of mines, where, as incident to the relief sought by a bill, an account is asked of profits against trespassers. It appears that as to the mode of assessing compensation, in such suits, to an owner of coal which has been improperly worked by the owner of an adjoining mine, a different principle is applicable when the coal is taken inadvertently, or under a bona fide belief of title, and when it is taken fraudulently, with knowledge of the wrong. In cases of the latter description, at law, the strict rule of damages laid down in Martin v. Porter (Ji Mee. & W. 351) was to charge the value of the coal without allowing any of the expenses of getting it; but in those of the former description a milder rule was applied in Morgan v. Powell (3 Q. B. 278) and Wood v. Mor ewood (id. 440), which was to give to the plaintiff the fair value of the coals as if the coalfield had been purchased from him by the defendant. This distinction was adopted and the latter rule applied in equity, by Vice-Chancellor Malins in Hilton v. Woods (Law Rep. 4 Eq. 432), and by Lord Chancellor Hatherley in Jegon v. Vivian (Law Rep. 6 Ch. App. 742), the latter remarking that “this court never allows a man to make profit by a wrong.” This rule was adopted in Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80. The same rule applies in England in patent and copyright cases. The Vice-Chancellor Page-Wood, in Smith v. London J Southwestern Railway Co. (Kay, 408), said: “ The true ground of relief in these cases is laid down in Baily v. Taylor (1 Russ. & M. 73), where Sir J. Leach, M. R., says: ‘ The court has no jurisdiction to give to a plaintiff a remedy for an alleged piracy, unless he can make out that he is entitled to the equitable interposition of this court by injunction ; and in such case the court will also give him an account, that his vol. xv. 14 210 Root v. Railway Co. [Sup. Ct. remedy here may be complete. If this court do not interfere by injunction, then his remedy, as in the case of any other injury to his property, must be at law.’ Unless that primary right to an injunction exists, this court has no jurisdiction with reference to a mere question of damages.” The Vice-Chancellor further observed that, as had often been stated by Lord Eldon, as the object of the court in interfering by injunction was the prevention of a multiplicity of suits, which might be rendered necessary by continued infringements of the patent, he was at a loss to see how the jurisdiction could attach or the relief by injunction be arrived at, after the expiration of the patent, unless a case were made out, of a numerous series of past infringements, from which the parties were still deriving advantage. He then referred to Crossley v. Beverly (Web. P. C. 119) as a case where there was a specific ground for that relief, that the defendants had been manufacturing the patented articles, secretly and fraudulently, for the purpose of pouring into the market the articles so manufactured directly the patent should have expired. In that case the bill was filed before the expiration of the patent, and the right to sue having been thus acquired, the court extended it to restrain using the articles so manufactured after the patent had expired. “ Such a case,” continues the Vice-Chancellor, “of a fraudulent attempt to evade the patent might occur, as would enable the court to restrain the use of articles made in infringement of the patent and kept back until it expired, even after its expiration, and the plaintiff having thus obtained a right to the injunction, the right to an account would follow.” In the case of Price's Pat. Candle Co. v. Bauweri s Pat. Candle Co. (4 Kay & J. 727), the bill was dismissed, because the patent having expired pendente lite, the relief by injunction could not be granted at the hearing; but in Davenport v. Rylands (Law Rep. 1 Eq. 302), the same judge retained the bill, under similar circumstances, for the purposes of an inquiry as to damages, because the act of 21 & 22 Viet., c. 27, commonly called Cairn’s Act, passed after the former decision, had altered the rule. That statute declared that in all cases in which the court has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract, or agreement, Oct. 1881.] Root v. Railway Co. 211 or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract, or agreement, the same court may award damages to the party injured either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct, — a provision which no doubt suggested the like extension of the jurisdiction of the court in patent cases, contained in our Patent Act of 1870. But even after the passage of Cairn’s Act, it was decided by Vice-Chancellor Sir Wm. M. James, in Betts v. Gallais (Law Rep. 10 Eq. 392), that the court would not entertain a bill for the mere purposes of giving relief in damages for the infringement of a patent, when the bill had been filed so immediately before the expiration of the patent as to render it impossible to have obtained an interlocutory injunction. He characterized it as “ a mere device to transfer a plain jurisdiction to award damages from the court to which that jurisdiction properly belongs, to this court.” Mr. Kerr, in his treatise on Injunctions, 41, summarizes the result of many decisions, which he cites, under this statute, as follows: “ The statute did not transfer to the court the general jurisdiction of common law by way of damages, or extend its jurisdiction to cases where previously to the statute it had no jurisdiction, or could not, consistently with its rules and principles, have interfered. The statute merely empowered the court to give damages in cases involving elements or ingredients of an equitable character. If the case as presented to the court was an equitable one, so that the subject-matter of the application is properly cognizable in equity, the court* had jurisdiction under the statute to entertain the question of damages. If, on the other hand, the plaintiff had no equitable right at the time of bringing the action, so that the matter has been improperly brought into equity, the statute had no application. Damages may be awarded under the statute if it appear that at the time of bringing the action there was an equitable case, although the case for an injunction fails, or although an injunction is not competent from circumstances which have occurred since the filing of the bill.” It will be observed that the British statute does not touch 212 Root v. Railway Co. [Sup. Ct. the question of the account of profits by an infringer, leaving that as it stood before the passage of the act. The unavoidable inference is that damages can only be given under the act, in cases in which an account might be decreed; and that the patentee must, as it was expressly decided by the House of Lords, in De Vitre v. Betts (Law Rep. 6 H. L. 319), in all cases when he has a decree, elect whether he will have an account of profits or an inquiry as to damages, and cannot have both. Under the act of Congress of 1870, he may recover damages in addition to the profits to be accounted for by the defendant; but as the recovery is limited by the act to the actual damages, it is manifest that the recovery of damages and profits is not intended to be double, but that when necessary the damages are to supplement that loss of the complainant which the profits found to have been received are insufficient to compensate, subject to the power of the court as to their increase, as in case of verdicts. This firm and indisputable doctrine of the English chancery has been recognized and declared by this court, in Hipp v. Babin (19 How. 271), to be part of the system of equity jurisprudence administered by the courts of the United States, founded not only upon the legislative declaration in the Judiciary Act of 1789, “ that suits in equity shall not be sustained in either of the courts , of the United States in any case where plain, adequate, and complete remedy may be had at law,” but also upon the intrinsic distinctions between the different jurisdictions of law and equity. In delivering the opinion of the court in that case, Mr. Justice Campbell remarked that “ the practice of the courts of the United States corresponds with that of the chancery of Great Britain, except where it has been changed by rule, or is modified by local circumstances or local convenience ; ” and cited the instances in which “ this court has denied relief in cases in equity, where the remedy at law has been plain, adequate, and complete, though the question was not raised by the defendants in their pleadings nor suggested by the counsel in their arguments. He then adds: “ And the result of the argument is that whenever a court of law is competent to take cognizance of a right, and has power to proceed to a judgment which affords a plain, adequate, and complete remedy, Oct. 1881.] Root v. Railway Co. 213 without the aid of a court of equity, the plaintiff must proceed at law, because the defendant has a constitutional right to a trial by jury.” It was contended in that case that, notwithstanding this general principle, the bill ought to be maintained, because the complainants, being minors, were authorized to call upon the defendants, who had intruded into possession of their lands, for an account as guardians, and that the Court of Chancery was better fitted to take an account for rents, profits, and improvements, and might decide the question of title as incidental to the account. In reply to these points, Mr. Justice Campbell remarked that “there are precedents in which the right of an infant to treat a person who enters upon his estate with notice of his title, as guardian or bailiff, and to exact an account in equity for the profits for the whole period of his occupancy, is recognized.” “ But,” he added, “ in those cases the title must, if disputed, be established at law, or other grounds of jurisdiction must be shown.” “ Nor can the court retain the bill under an impression that a court of chancery is better adapted for the adjustment of the account for rents, profits, and improvements. The rule of the court is, that when a suit for the recovery of the possession can be properly brought in a court of equity, and a decree is given, that court will direct an account as an incident in the cause. But when a party has a right to a possession which he can enforce at law, his right to the rents and profits is also a legal right, and must be enforced in the same jurisdiction. The instances where bills for an account of rents and profits have been maintained are those in which special grounds have been stated, to show that courts of law could not give a plain, adequate, and complete remedy. No instances exist where a person who had been successful at law has been allowed to file a bill for an account of rents and profits during the tortious possession held against him, or in which the complexity of the account has afforded a motive for the jnterpo-sition of the Court of Chancery to decide the title and to adjust the account.” These principles were announced in a case for the recovery of the possession of real estate held adversely, but they are of general application, and embrace, as well, the case of 214 Root v. Railway Co. [Sup. Ct. torts to personalty, and infringements of patent and copy rights. The distinct ground upon which the opposite view is presented to us in argument is, that the infringer of a patent-right is, by construction of law, a trustee of the profits derived from his wrong, for the patentee, and that a court of equity, in the exercise of its acknowledged jurisdiction over trusts and trustees, will require him to account as trustee, without reference to any other relief. And in support of this contention we are referred to passages in the judgments of this court in the cases of Packet Company v. Sickles, Burdell v. Denig, and Birdsall v. Coolidge, all of which have been already cited in this opinion, supra, pp. 198, 199. But the inference sought to be drawn from the expressions referred to is not warranted. It is true that it is declared in those cases that, in suits in equity for relief against infringements of patents, the patentee, succeeding in establishing his right, is entitled to an account of the profits realized by the infringer, and that the rule for ascertaining the amount of such profits is that of treating the infringer as though he were a trustee for the patentee, in respect to profits. But it is nowhere said that the patentee’s right to an account is based upon the idea that there is a fiduciary relation created between him and the wrong-doer by the fact of infringement, thus conferring jurisdiction upon a court of equity to administer the trust and to compel the trustee to account. That would be a reductio ad absurdum, and, if accepted, would extend the jurisdiction of equity to every case of tort, where the wrong-doer had realized a pecuniary profit from his wrong. All that was meant in the opinions referred to was to declare according to what rule of computation and measurement the compensation of a complainant would be ascertained in a court of equity, which, having acquired jurisdiction upon some equitable grounds to grant relief, would retain the cause for the sake of administering an entire remedy and complete justice, rather than send him to a court of law for redress in a second action. The rule adopted was that which the court in fact applies in cases of trustees who have committed breaches of trust by an unlawful use of the trust property for their own advantage ; that is, to Oct. 1881.] Root v. Railway Co. 215 require them to refund the amount of profit which they have actually realized. This rule was adopted, not for the purpose of acquiring jurisdiction, but, in cases where, having jurisdiction to grant equitable relief, the court was not permitted by the principles and practice in equity to award damages in the sense in which the law gives them, but a substitute for damages, at the election of the complainant, for the purpose of preventing multiplicity of suits. And the particular rule was formulated, as will be seen by reference to the cases already referred to, out of tenderness to defendants in order to mitigate the severity of the punishment to which they might be subjected in an action at law for damages, and because it was thought more equitable merely to deprive them of the actual profits arising from their wrong, than to make no allowances, in estimating damages, for the cost and expense of the business in the prosecution of which they had violated the rights of the complainant. The same reason operated in the establishment of the similar rule acted upon in the cases of Hilton v. Woods and Jegon v. Vivian, already cited in a previous part of this opinion, supra, p. 209. The rule itself is reasonable and just, though sometimes perverted and abused. It has been constantly acted upon by the courts. But it is a rule of administration and not of jurisdiction; and although the creature of equity, it is recognized as well at law as one of the measures, though not the limit, for the recovery of damages. The case is not within the principle, according to which, in certain circumstances, a court of equity decrees a wrong-doer to be a trustee de son tort, and exerts its jurisdiction over him in that character. Where a defendant has wrongfully intermeddled with property already impressed with a trust, he may be required as a trustee to account for it, as was done in the case of People v. Houghtaling (7 Cal. 348), because trust property may be followed, wherever it can be traced, into whosesoever possession it comes, except that of a bona fide purchaser without notice. It is the character of the property, and not the wrong done in converting or withholding it, that constitutes the wrong-doer a trustee. Our conclusion is, that a bill in equity for a naked account of profits and damages against an infringer of a patent cannot be 216 Root v. Railway Co. [Sup. Ct. sustained ; that such relief ordinarily is incidental to some other equity, the right to enforce which secures to the patentee his standing in court; that the most general ground for equitable interposition is, to insure to the patentee the enjoyment of his specific right by injunction against a continuance of the infringement ; but, that grounds of equitable relief may arise, other than by way of injunction, as where the title of the complainant is equitable merely, or equitable interposition is necessary on account of the impediments which prevent a resort to remedies purely legal; and such an equity may arise out of, and inhere in, the nature of the account itself, springing from special and peculiar circumstances which disable the patentee from a recovery at law altogether, or render his remedy in a legal tribunal difficult, inadequate, and incomplete ; and as such cases cannot be defined more exactly, each must rest upon its own particular circumstances, as furnishing a clear and satisfactory ground of exception from the general rule. The case of Grarth v. Cotton (1 Dick. 183) furnishes an interesting and curious illustration of one of the excepted cases. In that case Lord Hardwicke sustained a bill in equity, in a case of waste, for an account of timber felled and sold, where there could be no injunction, in favor of a complainant unborn at the time of its commission, whose estate was a contingent remainder, supported by a limitation to trustees to preserve it, the defendant being the owner of a prior term of years, and the ultimate remainder-man in fee. The Lord Chancellor proceeded on the ground of collusion between the defendants and a nominal or imputed breach of trust, on the part of the trustees to preserve the contingent remainder in permitting the wrong; and distinguished the case from Jesus College v. Bloom (3 Atk. 262), particularly on the ground that the complainant could have no remedy at law. Another instance of an exception is mentioned by Vice-Chancellor Page-Wood in the extract from his judgment in the case of Smith v. The London $ Southwestern Railway Co. (Kay, 408), contained in a previous part of this opinion. It does not appear from the allegations of the bill in the present case that there are any circumstances which would Oct. 1881.] National Bank v. Watsontown Bank. 217 render an action at law for the recovery of damages an inadequate remedy for the wrongs complained of ; and, as no ground for equitable relief is presented, we are of opinion that the Circuit Court did not err in sustaining the demurrer and dismissing the bill. Decree affirmed. Mr. Justice Gray did not sit in this case, nor take any part in deciding it. National Bank v. Watsontown Bank. 1. The statute of Pennsylvania (infra, p. 220), declaring that the stock of a bank shall be transferable only on the books in such nianner as the by-laws shall ordain, and that no stockholder shall be authorized to transfer his stock until his debt is discharged or secured to the satisfaction of the directors, does not prohibit the bank from waiving its right, nor the cashier from acting for them, by an authority, either express or implied. 2. A. borrowed money of B., to whom he assigned and delivered his certificate of stock as collateral security, with authority to sell in case of default in payment. On A.’s default B. sent the certificate to the cashier of the bank, who made the requisite entries on the stock ledger which he kept, it being the only book, except the book of certificates, showing the transfers of stock, and it was his practice to keep the account of such transfers without consulting in each case the directors. The latter had adopted no by-law on the subject. On B.’s instructing the cashier to sell the stock, the latter informed him that it would not be necessary to send him a certificate, but to forward a power of attorney, which B. did. Part of the stock was sold, the proceeds were remitted, and the proper entries made on the stock ledger. A. subsequently became insolvent. He was indebted to the bank, and on the directors refusing to approve the transfer B. brought suit to compel the issue to him of the customary certificate of stock. Held, 1. That as between A. and B. the title to the stock passed by A.’s delivery of the certificate with the accompanying power of attorney. 2. That the acts of the cashier were binding on the bank, and the transfer by him made on the stock ledger vested in B. a complete and unincumbered title to the stock, and a right to the usual certificate as evidence of his ownership. 3. That had B. acquired merely an equity based on his contract, the legal right of the bank to assert its lien was lost by its own laches, and the enforcement of it would, under the circumstances, operate as a fraud. Appeal from the Circuit Court of the United States for the Western District of Pennsylvania. The facts are stated in the opinion of the court. 218 National Bank v. Watsontown Bank. [Sup. Ct. J/r. John A. J. Creswell and Mr. William H. Armstrong for the appellants. Mr. Oscar Foust and Mr. Robert P. Allen for the appellee. Mr. Justice Matthews delivered the opinion of the court. This is a bill in equity filed by the Cecil National Bank, of Port Deposit, Maryland, and Jacob Tome, the appellants, to compel the Watsontown Bank, a corporation of Pennsylvania, to issue a certificate for two hundred shares of its capital stock to the said Cecil National Bank, to which the latter claims to be entitled. • These shares of stock belonged to Powell & Co., a partnership doing business at Williamsport, Pa., as private bankers, the certificate whereof, then held by them, they assigned and delivered to Jacob Tome, president of the Cecil National Bank, as collateral security for two promissory notes of $5,000 each, of which they were makers, discounted for them by that bank, and which it held at their maturity. One of the notes was dated Dec. 4, 1875, at thirty days, the other Dec. 20, 1875, at forty days, and each contained a stipulation authorizing the sale of the stock in case of default. These notes becoming due and remaining unpaid, the Cecil National Bank, on Jan. 31, 1876, by its president, J. Tome, transmitted the certificate of stock, in a letter to R. B. Claxton, cashier of the Watsontown Bank, requesting a new certificate in his name, and asking what the stock was worth. To this Claxton replied to Hopkins, cashier of the Cecil Bank, on Feb. 1, 1876, acknowledging the receipt of the certificate, stating that a new board of directors had been elected the day before; that they would organize on February 7, when a president would be elected, and when, as he added, “ I will forward your stock certificate. Mr. Pardee, our present president, is not here, and I have no signatures on the stock book.” He continued : “ I think I can find a purchaser for Mr. Tome’s stock at from 100 to 102, and possibly more. If you will let me know exact figures I will endeavor to dispose of it promptly, if he so desires.” On February 9, Tome answered, authorizing a sale, and directing the proceeds to be remitted to him; and wrote again on February 14, enclosing a power of attorney to sell Oct. 1881.] National Bank v. Watsontown Bank. 219 and transfer the stock, and stating that it would not be necessary to forward a certificate to him. This letter was an answer to one from Claxton of February 11, asking for the power of attorney from Tome to transfer the stock, and stating that as he intended to sell, it was useless to forward his certificate. He added that he thought he had aiTanged for the disposition of $1,000 of the stock that day, and would be as prompt as possible in placing the balance. The power of attorney sent by Tome was in the usual form, and authorized R. B. Claxton “ to sell, transfer, and assign the two hundred shares of stock of the Watsontown bank standing in my name in the books of said bank,” &c. In point of fact, on February 4 the account of Powell & Co. on the stock ledger of the Watsontown Bank was charged by Claxton, the cashier, with “ $10,000 to J. Tome; ” and an account opened with J. Tome, on the same book, crediting him, of the same date, “ by Powell & Co., $10,000.” On February 21 this account is debited with two items: “ To Henry Scott $500,” and “ A. Scott $500; ” and the same day Claxton, the cashier, remitted to Tome the proceeds of the sale of these twenty shares of stock. On February 16 he had written acknowledging the receipt of the power of attorney previously requested. The accounts of Henry Scott and of Amos Scott, on the same ledger, are credited with the stock sold to them respectively. It appears that this stock ledger was the only book kept by the Watsontown Bank showing the transfers of stock, except a book of certificates, the stubs of which showed to whom the corresponding certificate had been issued, and what certificate had been surrendered in lieu of it. The stock ledger was kept by the cashier. Martin Powell, one of the firm of Powell & Co., was a director of the Watsontown Bank, and R. B. Claxton, Jr., its cashier, was also a member of that firm, and known to be such by the directors of the bank. It was his usual practice, as cashier, to make and keep the account of transfers of stock without consulting in each case with the board of directors. On March 12,1876, Powell & Co. failed, and April 13,1876, made a voluntary assignment for the benefit of creditors. 220 National Bank v. Watsontown Bank. [Sup. Ct. On the next day, April 14, the Watsontown Bank, by its attorney, addressed a letter to J. Tome, as follows : — “Watsontown, Pa., April 14, 1876. “ My dear Sib, — Some time since you sent to our bank a certificate of stock originally issued to Powell & Co., and by them transferred to you for $10,000. This transfer was never approved by our president or board of directors, and we will not do so, or cannot under the act of.assembly regulating banks in this Commonwealth, so long as Powell & Co. are indebted to us, either as drawer, maker, or indorser, for matters due and unpaid. And, as this is the existing state of facts, we cannot permit a transfer to be made until we are secured to the satisfaction of our board of directors for all their (Powell & Co.’s) liabilities.” The statutory provision referred to is sect. 10, art. 10, of an act regulating banks, approved April 10, 1850, and reads as follows: — “ The stock of the bank shall be assignable and transferable on the books of the corporation only, and in the presence of the president or cashier, in such manner as the by-laws shall ordain ; but no stockholder indebted to the bank for a debt actually due and unpaid shall be authorized to make a transfer or receive a dividend until such debt is discharged or security to the satisfaction of the directors given for the same.” No by-law on the subject is shown to have been passed by the directors of the Watsontown Bank. It is assumed that the. account between the bank and Powell & Co. shows that the latter was indebted to the former on Feb. 1, 1876, for a balance amounting to $5,215.67. The Circuit Court rendered a decree denying the relief as prayed for, and requiring the bank to transfer one hundred and eighty shares of the stock, being the original amount less the twenty shares sold to the Scotts, only upon payment of the sum found due to it, from Powell & Co., with interest. The complainants bring the present appeal to review this decree. As between Powell & Co. and Tome, representing the appellants, the property in the shares of stock, undoubtedly, passed to the latter without the formality of a transfer on the Oct. 1881.] National Bank v. Watsontown Bank. 221 books of the Watsontown Bank. As collateral security for the payment of their notes, discounted and held by the Cecil National Bank, and with the power to sell for the purpose of payment, the title passed by the delivery of the certificate, with the accompanying power of attorney. Johnston v. Laflin, 103 U. S. 800. . The title, however, was unquestionably subject to the lien given by its charter to the Watsontown Bank. That provision, when insisted on and enforced, would be effectual to subject the beneficial interest in the stock to the payment of any indebtedness from the stockholder, making the transfer, to the bank for a debt which, at the time of the proposed transfer, was actually due and unpaid. According to the terms of this provision the bank was properly represented, in the act of transfer, by its cashier; and he was authorized to bind the bank, in consummating the transaction, by virtue of his office, in the absence of any bylaw, according to the usage of the business and the practice of the particular bank, presumed to be known to and approved by the directors. Case v. Bank, 100 U. S. 446. The clause which denies to the stockholder the privilege of making a transfer of his stock, while a debtor, until his debt is discharged or secured to the satisfaction of the directors, does not forbid the bank to waive its rights, or prevent the cashier from acting for the directors, by virtue of an express or implied authority. In this, as in other matters of ordinary business, within the general scope of his official duty, he is their appropriate representative. There is no circumstance which, in our opinion, limits the general and usual authority of the cashier in respect to the transfer of the stock in question. The fact that he was a member of the firm of Powell & Co., whose stock it had been, can have no such effect; for his relation to the parties was well known to the directors of the bank, and he had no interest in the transaction adverse to his official duty. Whether the stock should become the property of the Cecil National Bank, free from the claim of the appellees, or should remain subject to the claim of the latter, was equally indifferent to him, as in either event it served to pay an equivalent amount of debt for which he was liable. It is 222 National Bank v. Watsontown Bank. [Sup. Ct. not alleged, and is not shown, that the appellants were aware of Claxton's relation to the firm of Powell & Co., or of their indebtedness to the bank whose officers they were, and there is no ground for imputing fraud to, or suspecting collusion with, them. Our conclusion, therefore, is, as to this point, that the Watsontown Bank was lawfully represented by Claxton, its cashier, in this transaction, and is effectually bound by his acts. It remains to consider the nature and effect of what was in fact done. A complete transfer of the title to the stock upon the books of the bank, it is not doubted, would have the effect to vest it in the transferee, free from any claim or lien of the bank. The consent of the bank, made necessary to such transfer, is the waiver of its right, as its refusal would be the assertion of it. The transfer, when thus consummated, destroys the relation of membership between the corporation and the old stockholder, with all its incidents, and creates an original relation with the new member, free from all antecedent obligations. This legal relation and proprietary interest, on which it is based, are quite independent of the certificate of ownership, which is mere evidence of title. The complete fact of title may very well exist without it. All that is necessary, when the transfer is required by law to be made upon the books of the corporation, is that the fact should be appropriately recorded in some suitable register or stock list, or otherwise formally entered upon its books. For this purpose the account in a stock ledger, showing the names of the stockholders, the number and amount of the shares belonging to each, and the sources of their title, whether by original subscription and payment or by derivation from others, is quite suitable, and fully meets the requirements of the law. Accordingly, when the cashier of the Watsontown Bank received from Tome the certificate, with the authority for its transfer to him duly executed by Powell & Co., and, in pursuance of the request to make the transfer, charged it in the account against the former owner, and gave to Tome the corresponding credit, the latter became a stockholder in the bank, invested with the legal title to the stock, and with all the rights, powers, and privi- Oct. 1881.] National Bank v. Watsontown Bank. 223 leges belonging to that character. Nothing more remained to be done to make the conveyance of title complete and absolute, and, so far as the bank was concerned, it was irrevocable. It had consented to the transfer, and the transfer had been made. Thenceforward the rights of Tome in respect to the stock in question were all they could have been if it had belonged to him by virtue of an original subscription. The claim of the bank upon it, based upon the existing relation with the former owner, ceased when, with its consent and through its act, that relation ceased. The Cecil National Bank, then, had become the owner of the legal title to the stock which Powell & Co. transferred, and was entitled to demand recognition from the bank of its rights as a stockholder, and to the customary certificate, as evidence of its ownership. On the supposition that not the legal title, but only an equity, based on an executory contract for a transfer, passed to the appellants, by virtue of the transaction with the cashier of the Watsontown Bank, their right to the relief prayed for is not less clear. Aside from the recognition of the title, as complete, by accepting and acting upon the power of attorney given by Tome to sell and transfer it as his stock, and the sales made to the Scotts under it, whose title is not denied, and yet cannot be better than that of their vendor, which is disputed, the subsequent conduct of the Watsontown Bank raises an equity against it, which is superior to its legal right to insist upon a lien on account of the debt of Powell & Co. When Tome made his claim on behalf of the Cecil National Bank for a transfer of the stock, if the appellee had intended to insist on its legal rights and assert its lien, then was the proper time to do it; for it then, at least, had notice of the interest and the claim of the appellants. If it had done so promptly, the latter might still have had an opportunity to obtain other security, or to enforce by other means their claims against their debtors, who, although in default, do not appear to have been as yet in extremis. So far, however, from adopting this course, the Watsontown Bank pursued one exactly the reverse. It permitted .the parties by its actual exercise to rest in the belief that their right to dispose of the stock for 224 Warren v. Stoddart. [Sup. Ct. the purpose of paying thfe debt due them would not be questioned, until the failure and assignment of Powell & Co. made any other resort useless ; and, having induced them to alter their condition by reliance upon assurances, which were equivalent to a declaration that it had no adverse claim, the appellee cannot now be permitted to assert a lien, lost by its own laches, and the enforcement of which would operate as a fraud. For these reasons, we conclude that the appellants are entitled to the relief sought by their bill, and that the decree, so far as it denies it, must be reversed and the cause remanded with instructions to modify the decree in accordance with this opinion; and it is So ordered. Warren v. Stoddart. 1. Where a party, entitled to the benefit of a contract, can, at a trifling expense and with reasonable exertions, save himself from a loss arising from a breach of it, it is his duty to do so, and he can charge delinquents only with such damages as with reasonable endeavor he could not prevent. 2. The contract between the parties (infra, p. 225) construed. Held, that W. having put an end to it by canvassing on behalf of another party for a rival edition of the same work, and cancelling the orders he had obtained for S.’s reprint, S. was not bound thereafter to furnish him with copies of the work on credit. Error to the Circuit Court of the United States for the Northern District of Illinois. Joseph M. Stoddart was a book publisher, carrying on business in the city of Philadelphia, under the name of J. M. Stoddart & Co. In 1878 he undertook to reprint and sell in the United States a new edition, consisting of twenty-one volumes, of the Encyclopeedia Britannica, which A. & C. Black, of Edinburgh, Scotland, were then bringing out. His plan was to sell the work by subscription only; the subscriptions were to be obtained.by agents and canvassers, to whom certain territory was to be allotted. It was expected Oct. 1881.] Warren v. Stoddart. 225 that the work would be printed and published at the rate of about three volumes per year. Moses Warren was an agent in the city of Chicago for the sale of subscription books ; that is, books sold only by subscription. On Feb. 24, 1877, he and Stoddart entered into a contract in writing, which is as follows : — “ Philadelphia, Feb. 24, 1877. “ Agreement entered into this day between J. M. Stoddart & Co., of Philadelphia, Pa., and Moses Warren, of Chicago, Ill. “The said J. M. Stoddart & Co. agree to give the said Moses Warren a general agency for the sale of the American reprint of the Encyclopaedia Britannica in the following territory.” Here follows a description of the territory, consisting of several States and parts of States, and a list of the prices at which Stoddart & Co. agreed to furnish Warren with the books in various styles of binding. The contract then proceeds : — “ Said J. M. Stoddart & Co. also agree to give to said Moses Warren the exclusive right to sell the Encyclopaedia Britannica within the above-named territory, during such time as said Warren shall faithfully perform his part of the agreement as hereinafter stated. “ 1st, Said Warren agrees to use his best endeavors to promote the sale of the Britannica in the above-assigned field. “ 2d, To send to J. M. Stoddart & Co. a weekly report of the number of orders taken the week previous. “ 3d, To fill no orders outside of his assigned field. “ 4th, To leave no volumes with booksellers to sell or display in their stores. “ 5th, To furnish no volumes at less than the regular retail price. “ 6th, To remit on the 7th day of the month one-half the amount of monthly statement for previous month, and to remit on the 26th day of the month the remaining one-half of said monthly statement. “ Witness our hands and seals on the day and date above mentioned. “J. M. Stoddart & Co. [seal.] “Moses Warren.” [seal.] Warren at once entered upon the performance of this contract, and by April 20, 1878, had obtained and reported to Stoddart subscriptions for 1,733 sets of the work, and had de- VOL. XV. 15 226 Warren v. Stoddart. [Sup. Ct livered to subscribers a portion of the volumes of the work which had been issued up to that time; on an average less than four volumes to each subscriber. In the latter part of the year 1877 or early in 1878 the Scotch publishers of the Encyclopaedia and the house of Scribner & Armstrong, of New York, formed a plan to issue in this country an edition of the Encyclopaedia, to compete with the reprint of Stoddart, by striking off sheets from the original stereotype plates and engravings of the Scotch edition and sending them to this country to be bound and sold by subscription, on substantially the same plan as that which had been adopted by Stoddart to put his reprint into circulation. Sometime in May, 1878, Scribner & Armstrong commenced negotiations with Warren, which resulted in a contract between them, dated May 14, 1878, by which they constituted him their agent, with the exclusive right to sell, until its publication was completed, their edition of the Encyclopaedia within the same territory substantially as that mentioned in the contract between Stoddart and Warren, and agreed to furnish him with copies of the Encyclopaedia at prices therein named. He stipulated on his part that from and after the date of the contract he would not canvass for any other Encyclopaedia, or any other edition of any Encyclopaedia, but that he “ should have the privilege of completing orders already taken for the reprint edition of Stoddart to all subscribers therefor.” After the making of this contract Warren refused to canvass further for Stoddart’s reprint edition. Whereupon Stoddart refused to furnish him, except for cash on delivery, the books with which to fill the orders which he had obtained for Stoddart’s reprint edition. Upon this point the evidence was as follows: On June 5, 1878, Warren sent an order to Stoddart requesting him to forward a certain number of books to be furnished subscribers, to which Stoddart replied by letter, dated June 6, 1878, that “ as to all future orders, for the present they will be filled when cash accompanies the orders.” On June 10, 1878, Warren wrote to Stoddart as follows: “ I am desirous of delivering reprint fast as possible on my orders heretofore taken for same. If my orders for stock are filled Oct. 1881.] Warren v. Stoddart. 227 they shall be paid for according to contract. Do you intend to fill my orders on that basis? ” To this letter Stoddart replied by telegraph as follows: “ Will fill order when cash is received in accordance with our letter of June 6.” There is no evidence that Stoddart ever refused to fill a cash order; nor was it pretended that Warren, after that date, ever sent an order to Stoddart with the cash to pay for the books ordered. After the refusal of Stoddart to supply Warren with the books except for cash, the latter induced 1,253 of the subscribers to Stoddart’s reprint edition to exchange the subscription to the reprint for a subscription to the Scotch edition, and he claimed that he expended in obtaining their exchange an average of four dollars for each subscription, making a total of $5,012. He also claimed that the Stoddart reprint volumes taken back from said subscribers were worth $12,206 less than the amount paid by him to Stoddart for them, and less than what he could sell them for in the market. Warren also claimed that he lost his profits on four hundred and eighty orders which were not exchanged, amounting to the sum of $20,073. This suit was brought by Stoddart to recover of Warren the sum of $2,976.53 for books furnished him to supply his subscribers. It was not disputed by Warren that the amount sued for was due and owing from him to Stoddart. But Warren, by way of set-off, averred the making of the contract with Stoddart above set forth, and claimed that he had been damaged by the refusal of Stoddart to perform the contract, in the sum of $30,000. Upon the trial of the case, the judge instructed the jury that the defendant’s claim for damages could not be allowed as against the plaintiff’s claim in the suit, and that the plaintiff was entitled to a verdict for the full amount sued for by him and admitted to be due; namely, $2,976.53. The jury returned a verdict accordingly, on which judgment was entered. This writ of error is prosecuted by Warren to reverse that judgment. Mr. Van H. Higgins and Mr. Isaac H. Arnold for the plaintiff in error. There was no opposing counsel. 228 Warren v. Stoddart. [Sup. Ct. Mr. Justice Woods, after stating the case, delivered the opinion of the court. The only question in the case is whether or not the instruction of the court to the jury, to the effect that, on the facts, the plaintiff in error was entitled to no damages, is correct. This will depend upon the construction which is to be put on the contract between Stoddart and Warren, of Feb. 24, 1877. The contract is indefinite as to the time during which it was to continue in force. It is probable that the parties supposed the contract would continue until the twenty-one volumes were published, or at least until the territory named in the contract had been thoroughly canvassed. But no time was mentioned in the contract, nor did it make any provision with respect to the unfilled orders in case of its termination before the publication was completed, and we are left to construe it and settle the rights of the parties under it as they have made it. The complaint of Warren is not that Stoddart refused to furnish him with the books necessary to fill the orders he had taken, nor that he refused to furnish the books at the price fixed by their contract. His sole complaint is that Stoddart refused to furnish the books on a credit of about thirty days, which Warren insists the contract provided for, and demanded the cash. He claims that after he had stopped canvassing for the reprint of Stoddart, and had made a contract with and entered into the service of a rival publisher of the same work, and had begun in the interest of the rival publisher a canvass of the same territory which had been allotted to him exclusively by his contract with Stoddart, he had the right, upon the refusal of the latter to furnish the books on thirty days’ credit, to obtain a cancellation of the orders he had taken for Stoddart’s reprint, and substitute therefor orders for the rival edition, and charge the expense of the substitution to Stoddart. W e think it entirely clear that he had no such right. There was no express provision in the contract between Warren and Stoddart which required the. latter to furnish the books on credit, and we think that the provision of the contract that Oct. 1881.] Warren v. Stoddart. 229 Warren should remit on the seventh day of the month one-half the amount of monthly statement for previous month, and on the twenty-sixth day the remaining half, was not continued in force after Warren had terminated the contract and abandoned the service of Stoddart under it. Although the contract fixed no time during which it was to continue in force, yet we think when either party terminated it, the other was no longer bound by its provisions. It gave Warren the exclusive right to sell the books within certain territory, and by it Stoddart agreed to furnish them to him at stipulated prices and on stipulated terms. On his part Warren agreed to use his best endeavors to promote the sale of the work in the field exclusively assigned to him. These clauses of the contract were reciprocal, and the performance of one was the consideration for the performance of the other. When Warren ceased to canvass for Stoddart’s books, he had no right to demand the books at the prices or the terms mentioned in the contract. But even conceding that the provision referred to remained in force after Warren had declined to go on under the contract, it does not follow that, upon the refusal of Stoddart to give Warren a credit of thirty days upon the books, the latter could obtain a cancellation of the orders he had taken for Stoddart’s reprint and substitute orders for the Scotch edition, and charge the expense of so doing to Stoddart. The claim that upon a simple refusal of Stoddart to allow him a thirty days’ credit upon the books as he ordered them, he could go on and substitute other orders for another book and charge Stoddart with the expense of substitution, amounting to $30,000, is, to say the least, a remarkable one. The damage sustained by Warren because he did not get the thirty days’ credit which he thinks he was entitled to is not to be measured in that way. The rule is, that where a party is entitled to the benefit of a contract, and can save himself from a loss arising from a breach of it at a trifling expense or with reasonable exertions, it is his duty to do it, and he can charge the delinquent with such damages only as with reasonable endeavors and expense he could not prevent. Wicker v. Hoppock, 6 Wall. 94; Miller v. Mariners* Church, 7 Me. 51; Russell v. Butterfield, 21 Wend. 230 Warren v. Stoddart. [Sup. Ct. (N. Y.) 300; United States v. Burnham, 1 Mason, 57; Taylor n. Read, 4 Paige (N. Y.), 561. The course pursued by Warren was not necessary to his own protection. He might either have paid Stoddart cash for the books required to fill his orders, or have allowed Stoddart to fill the orders and divide the profits of the business between them, on equitable terms. The law required him to take that course by which he could secure himself with the least damage to the defendant in error. Instead of this he unnecessarily destroys a valuable interest of Stoddart in the business in which they were jointly engaged, and then seeks to charge him with the great expense and damage which he brought on himself in so doing. If Stoddart violated his contract with Warren in refusing to fill his orders except for cash, the measure of Warren’s damages would be the interest for thirty days on the amount of cash paid on his orders. As no proof was given to show that Warren had ever paid cash for any books ordered by him, he would only be entitled, in any view of the case, to nominal damages. But, as we have already said, Stoddart was not bound by the contract to furnish the books on credit after Warren had gone over to a rival publisher and refused to go on under his contract. We think, therefore, that the court below was right in saying to the jury that Warren was entitled to no damages at all. Judgment affirmed. Oct. 1881.] Chatfield v. Boyle. 231 Chatfield v. Boyle. 1. A person having made an assignment in favor of his creditors, one of them in behalf of himself and such others as would unite with him, filed his bill to set aside as fraudulent a previous conveyance in favor of A., and to exclude from the benefit of the assignment A., who, lie alleged, was not a creditor. Several creditors united as complainants. The bill was dismissed, and they appealed. Held, that the matter in dispute is not the entire fund, but their distributive shares thereof, and the amount being less than $5,000, this court has no jurisdiction. 2. Terry v. Hatch (93 U. S. 44) cited and approved. Motion to dismiss an appeal from the Circuit Court of the United States for the Western District of Tennessee. The facts are stated in the opinion of the court. Mr. John D. McPherson and Mr. Jeremiah W. Clapp in support of the motion. Mr. William M. Ramsey, contra. Mr. Chief Justice Waite delivered the opinion of the court. Boyle & Co., a mercantile firm doing business at Memphis, Tenn., being insolvent, made, on the 17th of November, 1876, a general assignment to J. A. Omberg for the benefit of all their creditors. A deed of trust, in the nature of a mortgage, had been previously executed, conveying some of the property of the firm as security for a debt said to be owing to Jefferson Davis. At the time of this assignment, the total indebtedness of the firm to creditors other than Davis and another person who has since been paid out of securities he held at the time, was..............................................817,233.63 The debt claimed to be due Davis was .... 25,000.00 Making a total of.....................842,233.63 Chatfield and Woods, creditors of the firm to the amount of 83,440.37, filed a bill in equity in one of the State courts of Tennessee, on the 13th of January, 1877, against Boyle, Davis, and others, the object of which was to set aside the deed of trust in favor of Davis, and also to prevent him from participating in the benefits of the general assignment, on the ground 232 Chatfield v. Boyle. [Sup. Ct. that he was not in reality a creditor of the firm, but one of the partners. This suit was brought, as alleged, in aid of the assignment and in behalf of all the creditors of thé firm who might be entitled to come and join therein. Omberg, the assignee, was also joined as a complainant. As to him, the allegations in the bill are as follows : “ Complainant J. A. Omberg, as the assignee in said deed of assignment, comes at the request of the creditors as aforesaid, and claims the benefit of all the matters and circumstances in this bill set up in behalf of all the creditors of Boyle & Co., and especially in behalf of all those creditors who may be hereafter made parties hereto, and may by proper averments and proof make good their claim, to be paid out of the proceeds of the property hereby proceeded against, and asks for them, and each of them, all the relief, under and by virtue and in aid of said assignment, to which they or either or each of them may as creditors be entitled-as against defendant Davis or other defendants.” During the pendency of the suit in the State court the property held under the trust for the benefit of Davis was sold with the consent of all parties, and realized $2,951.10, which is now in court subject to any decree that may be finally rendered. The assignee has also disposed of all the remaining property embraced in the assignment, and in the distribution that has been made of the proceeds, $3,403.81 was set apart for Davis, if he shall be adjudged to be a creditor of the firm and not a partner. These two sums, amounting in the aggregate to $6,354.91, constitute the entire fund about which the dispute in the case arises. On the 16th of March, 1877, the Powers Paper Company, Edwin Hoole, and L. Snider & Sons, also creditors of the firm, were, on their own petition, admitted as parties complainant. Their claims were respectively as follows : — Powers Paper Company.................................$2,689.60 Edward Hoole.......................................... 1,232.61 L. Snider & Sons...................................... 1,103.76 On the 23d of March, 1877, the following order was entered in the suit: “ In this cause it appearing to the court' by a statement of J. A. Omberg that all the creditors who have demanded Oct. 1881.J Chatfield v. Boyle. 233 of James A. Omberg, the assignee, to join in this litigation, have come in and had themselves made parties therein, it is, therefore, on motion, ordered that this bill be dismissed, so far as said Omberg is concerned, and he go hence without day.” On the next day, March 24, S. A. Tower & Co. and H. B. Graham & Brothers were, on their petition, made parties. Their claims are as follows: — S. A. Tower & Co.....................................8887.68 H. B. Graham & Brothers............................. 318.41 No other parties have ever appeared to claim the benefit of the suit. The aggregate of all the several claims represented by all the complainants is 89,672.43. On the 4th of April, 1877, after Omberg had been dismissed from the case, the remaining complainants united in a petition for the removal of the suit to the Circuit Court of the United States for the Western District of Tennessee, which was afterwards effected. Answers were filed and testimony taken in the Circuit Court. Upon final hearing the bill was dismissed. From the decree to that effect all the complainants united in this appeal. The appellees now move to dismiss because the matter in dispute does not exceed the sum of 85,000. In support of this motion two grounds are relied on. They are:____ 1. That the claims of the several complainants are separate and distinct, and cannot be united for the purpose of making up the amount necessary to give us jurisdiction. The effort in this connection is to bring the case within the operation of the principle under which motions to dismiss were granted in Seaver v. Bigelows, 5 Wall. 208; Rich v. Lambert, 12 How. 347; Oliver v. Alexander, 6 Pet. 143; Stratton v. Jarvis, 8 id. 4; and Paving Company v. Mulford, 100 U. S. 147. 2. That the matter in dispute is not the whole amount of the fund in court which is claimed by Davis, but only so much as would be distributable to the complainants under the assignment, if Davis is adjudged to be a partner and not a creditor. For this Terry v. Hatch (93 U. S. 44) is relied on. Without considering the first of these propositions, we think it clear the case comes within the last. These appellants on this appeal represent no one but themselves. Their rights 234 Chatfield v. Boyle. [Sup. Ct. here are just what Omberg asked for himself, that is to say, such as belong to creditors who in this suit make good their claim to be paid under the assignment out of the fund proceeded against. The complainants do not necessarily represent all the creditors entitled to the benefits of the assignment, neither have they assumed anything of the kind. They ask only for such relief as belongs to those who actually come in according to their invitation. They are in no situation to appropriate to themselves the whole of the fund. The other creditors may certainly abandon their interest and permit it to go to Davis if they choose. The complainants cannot compel them to take it whether they want it or not. By not coming into the suit they, in effect, have elected not to contend with Davis for their share, and to treat him as a creditor rather than a partner. When Omberg went out of the suit all the creditors had come in who wanted him to proceed. Under these circumstances, if the bill had been sustained, no opportunity need have been given other creditors to come in. The court might very properly have said that, as they had stayed out until all risks of liability for costs and expenses were gone, they should not then be admitted. Such being the case, a decree would have been entered in favor of the complainants for their distributive shares of the fund, and no more. The rest would have remained for Davis, the same as though no suit had been begun. The fund is $6,354.91, and the debts entitled to the benefit of the assignment, $17,233.63, of which the complainants represent only $9,672.43. Under this state of facts the whole of the distributive shares of the complainants, if they are successful, will be less than five thousand dollars, not enough to give us jurisdiction. Upon an appeal we will not consider whether others may come in if we reverse the decree. We look only to the parties who are actually before us. The case is, therefore, within the rule stated in Terry v. Hatch (supra}, and the motion to dismiss is Granted. Mr. Justice Matthews, having been of counsel in the court below, took no part in the decision of this motion. Oct. 1881.] Hecht v. Boughton. 235 Hecht v. Boughton. An appeal is the only form of proceeding by which this court can review the judgment or the decree of a territorial court in a case where there was not a trial by jury. Motion to dismiss a writ of error to the Supreme Court of the Territory of Wyoming. Mr. Thomas Turner in support of the motion. Mr. E. W. Mann, contra. Mr. Chief Justice Waite delivered the opinion of the court. This is a writ of error to the Supreme Court of the Territory of Wyoming, to bring up for review the judgment in a suit where there was not a trial by jury. A motion is now made to dismiss, because the case should have been brought here by appeal, and not by writ of error. The second section of the act of April 7, 1874, c. 80 (18 Stat., pt. 3, p. 27), is as follows: — “ That the appellate jurisdiction of the Supreme Court of the United States over the judgments and decrees of said territorial courts in cases of trial by jury shall be exercised by writ of error, and in all other cases by appeal, according to such rules and regulations as to form and modes of proceeding as the said Supreme Court have prescribed or may hereafter prescribe: “ Provided, that on appeal, instead of the evidence at large, a statement of the facts of the case in the nature of a special verdict, and also the rulings of the court on the admission or rejection of evidence when excepted to, shall be made and certified by the court below, and transmitted to the Supreme Court, together with the transcript of the proceedings, and judgment or decree ; but no appellate proceedings in said Supreme Court, heretofore taken upon any such judgment or decree, shall be invalidated by reason of being instituted by writ of error or appeal: “ And provided further, that the appellate court may make any order in any case heretofore appealed which may be necessary to save the rights of parties; and that this act shall not apply to cases now pending in the Supreme Court of the United States, where the record has already been filed.” 236 Hecht v. Boughton. [Sup. Ct. This statute seems to us conclusive of the present motion. In allowing legal and equitable remedies to be sought in the same action before the territorial courts, Congress saw fit to establish an inflexible rule by which it could be determined whether a case should be brought here from those courts for review by writ of error or appeal, and provided that cases tried by a jury should come on writ of error, and all others by.appeal. This makes the form of proceeding depend on the single fact of whether there has been, or not, a trial by jury. Stringfellow v. Cain, 99 U. S. 610. We are not to consider the testimony in any case. Upon a writ of error we are confined to the bill of exceptions, or questions of law otherwise presented by the record; and upon an appeal, to the statement of facts and rulings certified by the court below. The facts set forth in the statement which must come up with the appeal are conclusive on us. Under these circumstances, the form of proceeding to get a review is not of so much importance as certainty about what is to be done. We cannot agree with counsel for the plaintiff in error that the act of Congress was intended to apply only to those Territories where the distinction between suits at law and suits in equity had actually been abolished. From the preamble it may fairly be inferred that the object of the legislation was to prevent embarrassments growing out of the mingling of jurisdictions ; but the statute as it stands clearly applies to all territorial courts. Motion granted. Oct. 1881.] Davenport r. County of Dodge. 237 Davenport v. County of Dodge. 1. Where a precinct in an organized county in Nebraska voted, pursuant to the statute of that State approved Feb. 15, 1869, to aid a work of internal improvement, and bonds were, as in this case, issued therefor by the county commissioners (infra, p. 238), — Held, that, to enforce payment, the holder of them must sue the county, and judgment, if rendered in his favor, will be in form against it, and be collected by a tax upon the taxable property of the precinct. 2. The courts of the United States cannot by mandamus compel the collection of a tax to pay such bonds until a judgment upon them shall be obtained. County of Greene v. Daniel (102 U. S. 187) cited on this point and approved. Error to the Circuit Court of the United States for the District of Nebraska. The facts are stated in the opinion of the court. Mr. W. H. Munger and Mr. E. Wakeley for the plaintiff in error. Mr. William Marshall for the defendant in error. MR. Chief Justice Waite delivered the opinion of the court. By a statute of Nebraska, passed in 1869, “ to enable counties, cities, towns, and precincts to borrow money on their bonds, or to issue bonds to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purposes,” the legal voters of counties and cities were authorized to vote bonds for such purposes, and upon a favorable vote, the county commissioners in case of a county, and the city council in case of a city, were to issue the bonds as voted, which were to “ continue a subsisting liability against said city or county ” until paid. It was further made the duty of the proper officer annually to cause to be levied, collected, and paid over to the holders of such bonds “ a special tax on all taxable property within said county or city, sufficient to pay ” the interest and principal as they fell due. Sects. 6 and 7 of the act are as follows: — “ Sect. 6. Any county or city which shall have issued its bonds in pursuance of this act, shall be estopped from pleading want of consideration therefor, and the proper officers of such county or 238 Davenport v. County of Dodge. [Sup. Ct. city may be compelled, by mandamus or otherwise, to levy the tax herein provided to pay the same. “ Sect. 7. Any precinct, in any organized county of this State, shall have the privilege of voting to aid works of internal improvement, and be entitled to all the privileges conferred upon counties and cities by the provisions of this act; and in such case the precinct election shall be governed in the same manner as is provided in this act, so far as the same is applicable, and the county commissioners shall issue special bonds for such precinct, and the tax to pay the same shall be levied upon the property within the bounds of such precinct. Such precinct bonds shall be the same as other bonds, but shall contain a statement showing the special nature of such bonds.” General Statutes of Neb. 448. Under the authority of sect. 2 bonds were issued by the county commissioners of Dodge County in the following form: “United States of America, 1 State of Nebraska. j “It is hereby certified that Fremont precinct, in the county of Dodge, in the State of Nebraska, is indebted unto the bearer in the o 7 J sum of one thousand dollars, payable on or before twenty years after date, with interest at the rate of ten per cent per annum from date. Interest payable annually on the presentation of the proper coupons hereto annexed. Principal payable at the office of the county treasurer, in Fremont, Dodge County, Nebraska; interest payable at the Ocean National Bank, in the city of New York. « This bond is one of a series issued in pursuance of and in accordance with a vote of the electors of said Fremont precinct at a special election held on the 11th day of November, 1870, at which time the following proposition was submitted: — “ Shall the county commissioners of Dodge County, Nebraska, issue their special bonds on Fremont precinct, in said county, to the amount not to exceed fifty thousand dollars, to be expended and appropriated by the county commissioners, or. as much thereof as is necessary, in building a wagon-bridge across the Platte River, in said precinct; said bonds to be made payable on or before twenty years after date, bearing interest at the rate of ten per cent per annum, payable annually? Which proposition was duly elected, adopted, and accepted by a majority of the electors of said precinct voting in favor of the proposition. Oct. 1881.] Davenport v. County of Dodge. 239 “ And whereas the Smith Bridge Company, of Toledo, Ohio, have entered into a contract with said county commissioners to furnish the necessary materials, and to build and construct said bridge referred to in the foregoing proposition : “ Wherefore this bond, with others, is issued in pursuance thereof, as well as under the provision of an act of the legislature of the State of Nebraska, approved February 15th, 1869, entitled ‘An Act to enable countiesj cities, and precincts to borrow money on their bonds, to aid in the construction or completion of works of internal improvement in this State, and to legalize bonds already issued for such purpose.’ “ In witness whereof we, the said county commissioners of said Dodge County, have hereunto set our hands, this first day of September, A. D. 1871. “George F. Blanchard, “A. C. Briggs, “John P. Eaton, “ County Commissioners. “ Attest: [seal.] “A. G. Brugh, County Clerks Default having been made in the payment of sundry coupons attached to these bonds, Davenport, the plaintiff in error, brought suit against the county for the recovery thereof, in the Circuit Court of the United States for the District of Nebraska. The petition set forth the issue of the bonds according to the facts, and prayed judgment “ for the sum of eight hundred and fifty dollars and costs of suit, said judgment to be collected by a tax upon the taxable property within the territory comprising said Fremont precinct at the time said bonds were voted and issued.” The county demurred to the petition, and at the hearing the following questions arose: — “ 1. Whether upon the allegations of the amended petition filed in said court on the twelfth day of May, 1881, the said county of Dodge is liable to a suit in which judgment can be rendered against said county of Dodge, on the bonds and coupons therein declared upon and set out. “ 2. Whether upon the allegations of the said petition the plaintiff is entitled to recover a judgment in form against the county of Dodge, to be satisfied or collected only by levy of 240 Davenport v. County of Dodge. [Sup. Ct. a tax on the taxable property in Fremont precinct, as prayed for in said petition.” Upon these questions the opinions of. the circuit justice and district judge holding the court were opposed, and that disagreement has been duly certified here. The opinion of the circuit justice being that the questions should be answered in the negative, the demurrer was sustained and judgment given for the defendant. From that judgment this writ of error has been brought, and the case is now here for determination on the certificate of division. When county bonds are issued under the statute in question, it is expressly provided that they shall constitute a debt against the county, to be paid by the levy and collection of taxes on all the taxable property within the county. If aid is voted by a precinct, bonds also are to be issued, differing only from county bonds in that they are to be paid from taxes levied on property within a precinct. “ As to the several duties of the county commissioners respecting them,” says the Supreme Court of Nebraska, in State n. Thorne (9 Neb. 458, 461), “the law makes no distinction whatever between precinct and county bonds. They must issue both, and when issued it is their duty to keep a record of the kinds and amounts, as well as the times and places of payment, and wake, provisions therefor, as the statute directs. In the case of precinct bonds the means of payment must be raised by a tax levied by the commissioners ‘ upon the property within the bounds of such precinct,’ which must be collected in the same manner as is the ordinary county revenue, and through the agency of the county treasurer, whose only duty in connection with the fund arising therefrom, when collected, is to hold it subject to the order of the county commissioners directing its application to the object for which it was intended. As before stated, the management of this sort of precinct indebtedness is made to conform to that of counties of like character. The sole distinction is that it concerns a distinct portion only instead of the whole body of the county. The money with which to meet the obligations of a precinct is raised and paid out with the same formality, and through precisely the same agencies, as are the ordinary county funds, and, except when Oct. 1881.] Davenport v. County of Dodge. 241 there is some special provision of statute authorizing it, payment therefrom can be legally made only on ‘ warrants by the county commissioners according to law.’ ” A bond implies an obligor bound to do what it is agreed shall be done. Precincts in Nebraska are but political subdivisions of a county. They have no corporate existence, and cannot contract or be contracted with. They have no corporate officers, and can neither sue nor be sued. Certain officers are elected by the voters of precincts for political, administrative, and judicial purposes, but they are in no sense the representatives of the people of the Territory as a municipality. State n. Dodge County, 10 Neb. 20. Precincts are governed by the county commissioners, the governing board of the county, and by the appropriate officers of the State. Their relation to a county is like that of a ward to a city. Having no corporate existence, no separate municipal authority, they cannot, says again the Supreme Court of the State, in the case last cited, “ enter into contracts directly or indirectly, nor assume obligations which a court might be called on to enforce.” Hence, the precinct cannot become the obligor of precinct bonds, and we think it follows that the county, which does have a corporate existence, and can contract and be contracted with, and upon whose officers is imposed the duty not only of issuing the bonds, but of providing for the payment of them, is the political entity bound by the obligation and charged with the debt created thereby. The only difference between the two kinds of debt is, that in one all the taxable property of the county is charged with its payment, and in the other only a part. In both the mandamus to enforce the levy and collection of the necessary taxes lies to the proper officers of the county alone. This remedy is expressly provided for, and thus the presumption that might otherwise n,rise of an intention to erect the precinct into a corporation for the purpose of these obligations, because, without it, the bonds could not be enforced, is rebutted. We think, therefore, that the special bonds which the county commissioners are to issue for the precincts are, in legal effect, the special bonds of the county payable out of a special fund to be raised in a special way. Although the form of expression in the Nebraska statute VOL. xv. 16 242 Davenport v. County of Dodge. [Sup. Ct. is somewhat different from that in Missouri, which we were called on to consider in County of Cass n. Johnston (95 U. S. 360), we think the legal effect of it is the same. In Missouri it was provided that the bonds should be in the name of the county; but in Nebraska there can be no bond except it be of the county, and as a bond is to be made, it necessarily follows that the county must make it. In express terms it is stated that precinct bonds shall be the same as other bonds, that is to say, county bonds, but must contain a statement of their special nature, which confines the area of taxable property to a part rather than the whole of the county. If there is nothing else in the case, therefore, we think it comes within County of Cass v. Johnston (supraf and that an action at law will lie in the courts of the United States against the county for the recovery of the special judgment asked for. County Commissioners v. Chandler (96 U. S. 205) was upon coupons attached to some of this same issue of bonds. Judgment had been rendered against the county in the court below, and that judgment was affirmed here. No one seemed to think then that the defence now relied on was good, for it was not mentioned in this court or below. The defence then made related only to the authority of a precinct to vote aid for the building of a toll-bridge. It is contended, however, that as the statute which authorizes the creation of the liability provides a special remedy for its enforcement, this suit cannot be maintained. The remedy provided is by mandamus to compel the proper officers to levy the necessary tax. In County of Greene v. Daniel (102 U. S. 187), a case similar to this in many of its features, we said a suit to get judgment on bonds or coupons was part of the necessary machinery which the courts of the United States must use in enforcing this remedy, and that the jurisdiction of those courts is not to be ousted simply because in the courts of the State the mandamus could be granted without a judgment. In the State courts the liability may, as we understand the case of State v. Dodge County (supra), be determined in the proceedings for the mandamus. Such is not, however, the rule in the courts of the United States, where the writ of mandamus is only granted in aid of an existing jurisdiction. In those Oct. 1881.] Davenport v. County of Dodge. 243 courts the judgment at law is necessary to support the writ, which is in the nature of an execution to carry the judgment into effect. County of Greene v. Daniel, supra; Graham v. Norton, 15 Wall. 427 ; Bath County v. Amy, 13 id. 244. As the judgment asked for is special, and will only entitle the plaintiff to payment through the instrumentality of the special tax to be levied, the suit as it now stands is in reality only a way of getting the remedy the statute provides. The only execution that can issue on the judgment will be the mandamus. The Supreme Court of the. State, in State v. Dodge County (supra'), declined to issue a mandamus for the levy of taxes to pay a judgment in the Circuit Court of the United States on some of the coupons attached to this class of bonds, and in the opinion declared the judgment a nullity ; but this we must understand to mean a nullity as the foundation of any proceedings in that court for its enforcement. To enable the courts of the United States to afford the remedy which the law has specially provided, such a judgment is a necessarv preliminary. In fact, a judgment is but one of the steps in the proceeding to obtain the mandamus. The statute has given a remedy by mandamus, but has not undertaken to regulate the process by which it is to be secured. That depends on the practice established in the several tribunals from which it is to be obtained. The practice in the State courts requires one mode of proceeding, that in the courts of the United States another; but the result is the same in both, to wit, the order for the levy and collection of the requisite tax. It follows that each of the questions certified must be answered in the affirmative. Judgment reversed, and cause remanded for further proceedings in accordance with this opinion. 244 United States v. Tyler. [Sup. Ct. United States v. Tyler. 1. An officer of the army who is “ retired from active service ” is still in the military service of the United States, and, in addition to the per centum of the pay of the rank on which he was retired, is entitled to the ten per centum allowed by law for each term of five years’ service. 2. The ten per centum is to be computed on the sum primarily fixed as such reduced pay, with the increase for each five years previously earned added to that sum, when its increase for any new period of five years is to be computed. Appeal from the Court of Claims. The facts are stated in the opinion of the court. The Solicitor-General for the United States. Mr. Richard W. Tyler and Mr. Robert R. Warden for the appellee. Mb. Justice Miller delivered the opinion of the court. The question in this case is, whether the appellee, who, on the fifteenth day of December, 1870, was retired from the army of the United States with the rank of captain, on account of wounds received in battle, is entitled to the benefit of the statute which increases the pay of officers by ten per cent for every period of five years’ service. The law for this increased compensation is thus expressed in the Revised Statutes: — “ Sect. 1262. There shall be allowed and paid to each commissioned officer below the rank of brigadier-general, including chaplains, and others having assimilated rank or pay, ten per centum of their current yearly pay for each term of five years’ service. “ Sect. 1263. The total amount of such increase for length of service shall in no case exceed forty per centum of their current yearly pay of the grade as prescribed by law.” These sections are taken from the act of July 15, 1870, c. 294, and constituted the law on that subject when the appellee was retired, and their proper construction is the measure of his rights in this controversy. Sect. 1276 of the Revised Statutes was sect. 24 of the same statute, and is in the following language : “ Officers retired from active service shall receive sev Oct. 1881.] United States v. Tyler. 245 enty-five per centum of the pay of the rank upon which they are retired.” Section 1275 provides that “ officers wholly retired from the service shall be entitled to receive upon their retirement one year’s pay and allowances of the highest rank held by them, whether by staff or regimental commission, at the time of their retirement.” There is, therefore, a manifest difference in the two kinds of retirement, namely, retiring from active service and retiring wholly and altogether from the service. ■ In the latter case such reward or compensation as Congress thought proper to bestow, namely, one year’s pay and allowance, in addition to what was previously allowed, is given at once, and the connection is ended. In the former case the compensation is continued at a reduced rate, and the connection is continued, with a retirement from active service only. The question is, therefore, whether an officer thus situated is in the service within the meaning of sect. 1262. That section allows an increase of pay for every five years’ service. When the service ends, there can be no increase on that account. As long as the service continues, the increased pay applies whenever it amounts to five years. The law under which these officers are retired does not require their consent, nor does it require that the order for their retirement shall be based upon any absolute incapacity for further service. It may be based upon age, which, being fixed at a minimum of sixty-two years, by no means implies such incapacity. It may be based upon wounds received in battle, but the person retired for this cause may, for many purposes, be a very useful officer. The provisions of the statutes, and the uniform treatment of these officers, conform to this view, and necessarily imply that, while not required to perform full service, they are a part of the army, and may be assigned to such duty as the laws and regulations permit. Section 1094 of the revision designates specifically by a catalogue of twenty-eight items, of what the army of the United States consists, and the twenty-seventh item of this enumeration is “the officers of the army on the retired list.” 246 United States v. Tyler. [Sup. Ct. They are then by law a part of the army. Section 1256 enacts that “ officers retired from active service shall be entitled to wear the uniform of the rank on which they may be retired. They shall continue to be borne on the Army Register, and shall be subject to the rules and articles of war, and to trial by general court-martial for any breach thereof.” Section 1259 declares that they may be assigned to duty at the Soldiers’ Home; and sect. 1260, that they may be detailed to serve as professors in any college. It is impossible to hold that men who are by statute declared to be a part of the army, who may wear its uniform, whose names shall be borne upon its register, who may be assigned by their superior officers to specified duties by detail as other officers are, who are subject to the rules and articles of war, and may be tried, not by a jury, as other citizens are, but by a military court-martial, for any breach of those rules, and who may finally be dismissed on such trial from the service in disgrace, are still not in the military service. If Congress chose to provide for their qualified relief from active duty, and for a diminished compensation, it did not discharge them from their other obligations as part of the army of the United States. And if, because they were not required to do full service thereafter, their compensation was diminished by the statute twenty-five per cent, that is no reason why the accounting officers should add a further limitation of pay not found in any statute. We are of opinion that retired officers are in the military service of the government, and that the increased pay of ten per cent for each five years’ service applies to the years so passed in the service after retirement as well as before. We also hold that the words “current yearly pay,” in sect. 1262, require that, when the increased pay for any period of five years is to commence, the ten per cent must be counted on the regular salary added to its increase by any previous periods of five years; so that the original salary of the rank, and any additions of ten per cent previously earned for periods of five years, constitute the current yearly pay on which said ten per cent is to be calculated. Judgment affirmed. Burley v. Flint. 247 Burley v. Flint. A sale under a decree of foreclosure ordering that the mortgaged premises in Illinois be sold without any right of redemption was confirmed by the proper court. After the expiration of the time, within which the defendant was, under the statute, entitled to redeem, he, without leave, filed his bill praying that so much of the decree as excluded that right be reviewed and reversed. Held, that the bill was properly dismissed. Appeal from the Circuit Court of the United States for the Northern District of Illinois. The facts are stated in the opinion of the court. Mr. Francis H. Kales for the appellant. Mr. E. B. McCagg for the appellee. Mr. Justice Miller delivered the opinion of the court. Flint obtained, on the 19th of October, 1877, a decree foreclosing a mortgage against Kriegh, the mortgagor, Burley, his assignee in bankruptcy, and others. The decree ordered a sale according to the usual course and practice of the court, which, in the case of Brine v. Insurance Company (96 U. S. 627), we held to mean a sale without any right of redemption. Such a sale was made to Flint. An order confirming it, and for a deed, and the delivery of possession, and expressly cutting off all right of redemption, was entered by the court on the 13th of March, 1878, with a further decree against the assignee for payment, out of assets pro rata, of a balance not satisfied by the sale. On the seventeenth day of October, 1879, Burley filed in the same court, but without leave, a bill of review, seeking to reverse so much of the former decrees of the court as denied the statutory right of redemption given by the laws of Illinois in regard to the land sold under such decrees. A hearing was had on a motion to dismiss, which, by consent of counsel, as the record states, was to be treated also as a demurrer. The court dismissed the bill, from which order this appeal is prosecuted by Burley. The appellant in his bill does not seek to reverse the order of sale to satisfy the amount found due to Flint, nor ask that Oct. 1881.] 248 Burley v. Flint. [Sup. Ct. the sale thereunder be set aside, and a new sale ordered. He does not offer to redeem, by payment of the amount due on the original mortgage, or to pay the amount bid at the sale by Flint, nor tender any sum as assurance that he will do so. He simply and purely asks that so much of the decree as forecloses this statutory right to redeem may be reviewed and reversed. What will such an order avail him ? The decree and the sale under it will still stand good. The time within which a defendant can, by the statute of Illinois, redeem, has long since passed, and he has made no offer to redeem. The sale was made prior to Feb. 23, 1878, the date of the master’s report, and the present bill filed Oct. 17, 1879, twenty months afterwards, and at a time when, by the statute, both the defendant and his judgment creditors had ceased to have any right of redemption. If the appellant had appealed from the original decree to this court his remedy was plain, and the decree would have been reversed. The same result would probably have followed an appeal from the order confirming the sale and cutting off the right to redeem. He did not see proper to follow such a course, but seeks by this bill of review to let the original decree and sale stand, but to have a declaration of the court that the order foreclosing the statutory right of redemption be reversed. How can this avail him since his time for redemption had expired before he filed his bill? It would be of no use to him unless the court should go further, and make a decree that he now has the right to redeem in the same manner as if he had tendered the money within the twelve or the fifteen months which the law allowed for that purpose« We do not think the court should decree that he may now redeem on payment of the sum bid and interest. If he designed to avail himself of the right of redemption purely statutory, he should bring himself within the terms of the statute. Such is the view of a case precisely similar taken by the Supreme Court of Illinois. That court, in the case of Suitterlin v. The Connecticut Mutual Insurance Co. (90 Ill. 483), while recognizing the doctrine of the case of Brine v. Insurance Company, holds that the party Oct. 1881.] Scheffer v. Railroad Co. 249 seeking to redeem under such a decree and sale as the one before us, can do so by making the offer within the time prescribed by the statute, and cannot do so afterwards. We concur in that view. Decree affirmed. Mr. Justice Gray did not sit in this case, nor take any part in deciding it. Scheffer v. Railroad Company. By reason of a collision of railway trains in Virginia a passenger was injured, and becoming thereby disordered in mind and body he some eight months thereafter committed suicide. Held, in a suit by his personal representatives against the railway company, that as his own act was the proximate cause of his death, they are not entitled to recover. Error to the Circuit Court of the United States for the Eastern District of Virginia. The facts are stated in the opinion of the court. Mr. George A. King, with whom were Mr. Charles King and Mr. John B. Sanborn, for the plaintiffs in error. Mr. Linden Kent, contra. Mr. Justice Miller delivered the opinion of the court. The plaintiffs, executors of Charles Scheffer, deceased, brought this action to recover of the Washington City, Virginia Midland, and Great Southern Railroad Company damages for his death, which they allege resulted from the negligence of the company while carrying him on its road. The defendant’s demurrer to their declaration was sustained, and to reverse the judgment rendered thereon they sued out this writ of error. The statute of Virginia, under which the action was brought, is, as to the question raised on the demurrer, identical with those of all the other States, giving the right of recovery when the death is caused by such default or neglect as would have entitled the party injured to recover damages if death had not ensued. 250 Scheffer v. Railroad Co. [Sup. Ct. The declaration, after alleging the carelessness of the officers of the company, by which a collision occurred between the train on which Scheffer was and another train, on the seventh day of December, 1874, proceeds as follows : — “ Whereby said sleeping-car was rent, broken, torn, and shattered, and by means whereof the said Charles Scheffer was cut, bruised,’ maimed, and disfigured, wounded, lamed, and injured about his head, face, neck, back, and spine, and by reason whereof the said Charles Scheffer became and was sick, sore, lame, and disordered in mind and body, and in his brain and spine, and by means whereof phantasms, illusions, and forebodings of unendurable evils to come upon him, the said Charles Scheffer, were produced and caused upon the brain and mind of him, the said Charles Scheffer, which disease, so produced as aforesaid, baffled all medical skill, and continued constantly to disturb, harass, annoy, and prostrate the nervous system of him, the said Charles Scheffer, to wit, from the seventh day of December, A. D. 1874, to the eighth day of August, 1875, when said phantasms, illusions, and forebodings, produced as aforesaid, overcame and prostrated all his reasoning powers, and induced him, the said Charles Scheffer, to take his life in an effort to avoid said phantasms, illusions, and forebodings, which he then and there did, whereby and by means of the careless, unskilful, and negligent acts of the said defendant aforesaid, the said Charles Scheffer, to wit, on the eighth day of August, 1875, lost his life and died, leaving him surviving a wife and children.” The Circuit Court sustained the demurrer on the ground that the death of Scheffer was not due to the negligence of the company in the judicial sense which made it liable under the statute. That the relation of such negligence was too remote as a cause of the death to justify recovery, the proximate cause being the suicide of the decedent, — his death by his own immediate act.' In this opinion we concur. Two cases are cited by counsel, decided in this court, on the subject of the remote and proximate causes of acts where the liability of the party sued depends on whether the act is held to be the one or the other; and, though relied on by plain Oct. 1881.] Scheffer v. Railroad Co. 251 tiffs, we think they both sustain the judgment of the Circuit Court. The first of these is Insurance Company n. Tweed, 7 Wall. 44., In that case a policy of fire insurance contained the usual clause of exception from liability for any loss which might occur “ by means of any invasion, insurrection, riot, or civil commotion, or any military or usurped power, explosion, earthquake, or hurricane.” An explosion took place in the Marshall warehouse, which threw down the walls of the Alabama warehouse, — the one insured, situated across the street from Marshall warehouse, — and by this means, and by the sparks from the Eagle Mill, also fired by the explosion, facilitated by the direction of the wind, the Alabama warehouse was burned. This court held that the explosion was the proximate cause of the loss of the Alabama warehouse, because the fire extended at once from the Marshall warehouse, where the explosion occurred. The court said that no new or intervening cause occurred between the explosion and the burning of the Alabama warehouse. That if a new force or power had intervened, sufficient of itself to stand as the cause of the misfortune, the other must be considered as too remote. This case went to the verge of the sound doctrine in holding the explosion to be the proximate cause of the loss of the Alabama warehouse; but it rested on the ground that no other proximate cause was found. In Milwaukee St. Paul Railway Co. v. Kellogg (94 U. S. 469), the sparks from a steam ferry-boat had, through the negligence of its owner, the defendant, set fire to an elevator. The sparks from the elevator had set fire to the plaintiff’s saw-mill and lumber-yard, which were from three to four hundred feet from the elevator. The court was requested to charge the jury that the injury sustained by the plaintiff was too remote from the negligence to afford a ground for a recovery. Instead of this, the court submitted to the jury to find “ whether the burning of the mill and lumber was the result naturally and reasonably to be expected from the burning of the elevator; whether it was a result which under the circum 252 Scheffer v. Railroad Oo. [Sup. Ct. stances would not naturally follow from the burning of the elevator, and whether.it was the result of the continued effect of the sparks from the steamboat, without the aid of other causes not reasonably to be expected.” This court affirmed the ruling, and in commenting on the difficulty of ascertaining, in each case, the line between the proximate and the remote causes of a wrong for which a remedy is sought, said: “ It is admitted that the rule is difficult. But it is generally held that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” To the same effect is the language of the court in McDonald v. Snelling^ 14 Allen (Mass.), 290. Bringing the case before us to the test of these principles, it presents no difficulty. The proximate cause of the death of Scheffer was his own act of self-destruction. It was within the rule in both these cases a new cause, and a sufficient cause of death. The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months’ disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that “great first cause least understood,” in which the train of all causation ends. The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train. His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials, as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him, and his death. Judgment affirmed. Oct. 1881.] Manufacturing Co. v. Cowing. 253 Manufacturing Company v.* Cowing. The validity and the infringement of letters-patent No. 117,925, granted Aug. 8, 1871, for an improvement in gas-pumps for oil-wells, having been established, — Held, that the case being an exceptional one, inasmuch as the market for such pumps was confined to a particular region, and the demand for them was so limited that, although no other species of pump could successfully compete with them, a single manufacturer could easily and with reasonable promptness fill all orders for them, the patentee is entitled to recover the difference between the cost of the material and labor used by the infringer in making the pumps which he sold and the price which he received for them. Appeal from the Circuit Court of the United States for the Northern District of New York. The facts are stated in the opinion of the court. Mr. William F. Cogswell for the appellant. Mr. Elisha Foote for the appellees. Mr. Chief Justice Waite delivered the opinion of the court. The only questions raised on this appeal relate to the amount which the Goulds’ Manufacturing Company is entitled to recover for the infringement of letters-patent No. 117,925, dated Aug. 8, 1871, for an improvement in pumps “ specially designed for drawing off the gas from oil-wells and conducting the same to the furnace of the engine.” The validity and the infringement of the letters are not disputed here. After the letters and the infringement were established below, the case was sent to a master to ascertain the damages. He reported that 298 pumps had been manufactured and sold by the defendants, out of which a net profit of 847.71 on each pump bad been realized, that being the difference between the cost of the material and labor used in making a pump and the price at which it was sold. Upon this report the court ruled that, as the patent was only for an impi’ovement on an old pump, the profits for which the defendants were accountable must be confined to such as were realized from the manufacture of the patented improvement, and not from the whole pump as improved. For this reason a new reference was ordered to state the account on the proper basis. 254 Manufacturing Co. v. Cowing. [Sup. Ct. The second report was, in its result, substantially the same as the first. The number of pumps made and sold was the same, and the profit on each pump estimated to be 846.46. The mode of calculating the profits was also the same, that is to say, on the second reference as on the first, the defendants were charged with the price at which they sold the pump as a whole, and credited only with the cost of labor and material used in the manufacture. The master on the second reference, however, reported further as follows: — “ I find as further facts from the evidence that the plaintiffs’ pump, with their patented improvement, which they had introduced into the market, virtually controlled the market, and had superseded all the other pumps then in use for pumping gas, and the others were literally driven out of the market, as they could not be sold at the places where the plaintiffs’ pump had been introduced. The defendants went into the very market where the plaintiffs’ pump had been introduced, and where they had sold, and where plaintiffs were then supplying most of their pumps, and the defendants, in fact, went and employed Wenson, the former agent of the plaintiffs, to sell the pumps for them, and he, from being the plaintiffs’ agent in the locality, made very ready sale of the same pumps for the defendants, and had not the defendants interfered in urging the pumps which they manufactured upon this local market the plaintiffs would certainly have had the whole market to themselves, and would, beyond doubt, have secured orders and supplied the demand of the market for the same number of pumps more than they did sell, as the defendants furnished, to wit, 298 pumps. The plaintiffs were, by their agent, in the field furnishing pumps in those oil regions, and would have supplied the market demand had not the defendants intervened aud supplied to the market these 298 pumps.” This finding as to the facts is, in its general effect, supported by the evidence. Notwithstanding this, however, the court, still adhering to its holding as to the rule of estimating profits, set aside the report, and inasmuch as the company had, on the second reference, failed to show what had been realized upon the principles of accounting prescribed, a final decree was entered in its favor for nominal damages only and Oct. 1881.] Manufacturing Co. v. Cowing. 255 costs. From that decree this appeal was taken by the company. The rule applicable to this class of cases was well stated by Mr. Justice Strohg, speaking for the whole court, in Mowry v. Whitney, 14 Wall. 620. The subject-matter of that suit was a patent for an improvement in the process of manufacturing car-wheels, and in respect to the profits resulting to an infringer from the use of the patented process, it was said, p. 651: “ The question to be determined ... is, what advantage did the defendant derive from using the complainant’s invention over what he had in using other processes then open to the public, and adequate to enable him to obtain an equally beneficial result. The fruits of that advantage are his profits.” It does not necessarily follow from this that where the patent is for one of the constituent parts, and not for the whole of a machine, the profits are to be confined to what can be made by the manufacture and sale of the patented part separately. If, without the improvement, a machine adapted to the same uses can be made which will be valuable in the market, and salable, then, as was further said in that case, the inquiry is, “What was the advantage in cost, in skill required, in convenience of operation or marketability,” gained by the use of the patented improvement? If the improvement is required to adapt the machine to a particular use, and there is no other way open to the public of supplying the demand for that use, then it is clear the infringer has by his infringement secured the advantage of a market he would not otherwise have had, and that the fruits of this advantage are the entire profits he has made in that market. Such, we think, is this case. Pumps for all ordinary, and many extraordinary, uses were very old; but, in the new developments of business, something was wanted to take the gas from the casing of an oil-well, and conduct it safely to the furnace of the engine. “ With that special purpose in view,” this inventor took the well-known parts of an ordinary double-action pump, changed some of them slightly in form, added a new device, and produced something which would do what was wanted. While nominally he only made an improvement in pumps, he actually made an improved pump. For ordinary uses the improvement added nothing to 256 Manufacturing Co. v. Cowing. [Sup. Ct. the value of the old pump, but for the new and special purpose in view, the old pump was useless without the improvement. The testimony shows that there was no market for pumps adapted to this particular use, except in the oil-producing regions of Pennsylvania and Canada. The demand was limited, as well as local. Less than a thousand pumps actually supplied all who wanted them. But for that particular use no other pump could at the time be sold. If the appellant kept the control of its monopoly under the patent, it alone had the advantage of this market. Unless the appellees got the improved pump, they could not become competitors in that field; and just to the extent they got into the field they drove the appellant out. Through their infringement they got the advantage of selling the pumps that had upon them the patented improvement. Without it no such sales would have been effected. The fruits of the advantage they gained by their infringement were, therefore, necessarily the profits they made on the entire sale. This is an exceptional case. A limited locality required a particular kind of pump, to be used only in that locality for a special purpose. The market was not only limited 'to a particular locality, but it was unusually limited in demand. A single manufacturer, possessing the facilities the appellant had, could easily, and with reasonable promptness, fill every order that was made. There was no other pump that could successfully compete with that controlled by the patent. Under these circumstances it is easy to see that what has been the appellees’ gain in this business must necessarily have been the appellant’s loss, and consequently the appellant’s damages are to be measured by the appellees’ profits derived from their business in that special and limited market. This, as it seems to us, is the logical result of the rule which has been stated. By infringing on the appellant’s rights, the appellees obtained the advantage of the increased marketability of their pumps. The action of the court below, therefore, limiting the field of inquiry as to damages, cannot be sustained. We cannot agree with the master, however, in his estimate of the profits made by the appellees from what they have done. He finds that the pumps sold in the market for eighty dollars Oct. 1881.] Manufacturing Co. v. Cowing. 257 each, while the cost of manufacturing them was only $33.54. It is true there is some evidence to show that pumps could be made for the sum named, but it is clear to our minds that many things were excluded from the estimate which ought to have been included. All the material and labor of men may have been taken into account, but there is nothing for the use of tools, machinery, power, and other facilities employed in the manufacture, and nothing for wastage and expenses of marketing. One of the appellees is reported as testifying that his firm made the pumps for $31.37 each; but this must be an error, because he at the same time stated he could not say that there was any profit at all at the prices for which sales were made. Clearly this could not be, if what only cost the sum named was sold for $80. Annexed to the statement of the testimony of this witness is a detailed estimate of the cost of manufacture, which, without any allowance for general expenses, made the cost of a single pump $91.96. The appellant furnishes some evidence to contradict this estimate, but the bare fact that the pump when finished brought, as is claimed at the shop, $80, shows that the cost must have been much more than the master has reported. Down to the time of this patent the market had been supplied with some device to accomplish what this improvement did. The change in the old pump was not an expensive one. The valves were put outside of the side chambers instead of inside, and the joints had to be carefully fitted. If the old pump only cost as much as is claimed for the new, we cannot believe it would have commanded in the market anv such price as the new sold for. We must conclude, therefore, that the cost of production has been much underestimated by the master. The testimony as reported is very unsatisfactory, and we are strongly inclined to think all has not been sent here which was presented. The attention of the parties was evidently directed much more to the rule of estimating the profits than to the detail of the expense of manufacture and sale. Had there not already been two references, we should be inclined to older another. As it is, we have made the best estimate we can from the material furnished in the record, and conclude vol. xv. 17 258 Railroad Co. v. Loftin. [Sup. Ct. that a reasonable allowance for profits will be fifteen dollars on each pump, or $4,470 in all. The decree will be reversed, and the cause remanded with instructions to sustain the fifth exception to the report of the master, and enter a decree against the appellees for $4,470. and costs ; and it is So ordered. Railroad Company v. Loftin. 1. Lands in Arkansas, granted by the State to the Memphis and St. Louis Railroad Company, and held for the purpose of raising money to build its road, are not, by its charter, exempt from taxation. Railroad Company v. Loftin (98 U. S. 559) cited upon this point and approved. Quaere, Are the lands exempt which were acquired by the company in payment for its increased stock. 2. The swamp and overflowed lands donated by the United States to Arkansas are, unless sooner reclaimed, exempt from taxation for ten years after they have been sold by the State. Error to the Supreme Court of the State of Arkansas. The facts are stated in the opinion of the court. Mr. William Y. C. Humes for the plaintiff in error. Mr. Augustus H. Garland, contra. Mr. Chief Justice Waite delivered the opinion of the court. This was a suit in equity, brought by the Memphis & St. Louis Railroad Company in the Circuit Court of Jackson County, Arkansas, to restrain the collection of taxes imposed under the authority of the State upon certain lands in that county owned by the company. The Supreme Court of the State affirmed the decree of the Circuit Court dismissing the bill on demurrer. The complainant thereupon sued out this writ of error. Two questions are presented for oui' consideration : — 1. Whether the State by imposing the tax has impaired the obligation of a contract in the charter exempting the capital stock of the company from taxation; and, Oct. 1881.] Railroad Co. v. Loftin. 259 2. Whether it has impaired the obligation of a contract made with the purchasers of its swamp and overflowed lands for exemption from taxation. 1. As to the charter. The section of the charter relied on is as follows: — « Sect. 21. The capital stock of said company, with all the immunities and franchises herein specified, and all machinery, cars, engines, or carriages, belonging to said company, together with all their works and property, and all profits which shall arise from the same, shall be vested in the respective stockholders forever, in proportion to their respective shares; and the capital stock of said company, and the dividends, shall be exempted from taxation until a dividend of six per cent is realized upon the capital stock, and the road, with all its fixtures, and appurtenances, including workshops, warehouses, and vehicles of transportation, shall be exempted from taxation for the period of twenty-five years from the completion of the road, and no tax shall ever be levied on said road or its fixtures which will reduce its dividends below ten per cent per annum. Said stockholders shall not be bound or liable for any greater amount than the respective shares of stock which they or either of them own.” The averment in the complaint to bring the lands in question under this exemption is in the following words: — “ And that the said lands were acquired by the plaintiff and are now held by it for the purpose of raising money to build said road, and that it is a part of the property of said company, fully represented by its capital stock and not otherwise, and that said road has not as yet been completed, and that no dividend has as yet been realized on said capital stock, or any part thereof.” In Railway Company v. Loftin (98 U. S. 559), in passing upon a provision of the charter of the Mississippi Valley Railroad Company, substantially like the section here relied on, this court held that the exemption did not extend to lands granted by the State to the company to aid in the construction of its railroad. Such lands, it was then said, were used in lieu of capital, and to the extent they could be made available relieved the company from the necessity of raising money through stock subscriptions. Like the court below, we are 260 Railroad Co. v. Loftin. [Sup. Ct. unable to distinguish the case made by this complaint from that. The only material averment of fact in this connection is that the lands in question are held by the company for the purpose of raising money to build its road. This is entirely consistent with their use in lieu of capital. It is true the complaint alleges that the lands are fully represented by the capital stock, but that is only as a legal conclusion from what was stated before. The facts showing why the lands represented the capital must be set forth. Those which have been stated are not enough, and consequently the legal conclusion which the pleader has drawn from them in the complaint cannot be sustained. In the elaborate printed argument presented for the plaintiff in error, reference is made to facts not stated in the complaint. These we cannot consider. As the case was submitted on demurrer, only the averments in the complaint are before us. While we may take judicial notice of the several statutes of the State which are relied on, the complaint alone must be looked to for information as to the manner in which the lands were acquired and the purposes for which they are held. While it may be true, as is claimed, that, under sect. 3 of the charter of the company, lands might have been accepted in payment for increased stock, and that the lands in question were acquired in that way, it is not so stated in the complaint. Whether, if the facts as claimed in argument had been stated, the exemption contended for would follow, is not for us now to decide. Upon this branch of the case, as it comes to us, the judgment below was, in our opinion, right, and must consequently be affirmed. 2. As to the swamp lands. These were part of the swamp and overflowed lands donated by the United States to the State, and the State statute providing for their reclamation and sale contained the following:— « Sect. 14. Be it further enacted, that to encourage by all just means the progress and completion of the reclamation by offering inducements to purchasers and contractors to take up said lands, that the swamp and overflowed lands shall be exempt from taxation for the term of ten years, or until said lands are reclaimed.” Oct. 1881.] Railroad Co. v. Loftin. 261 That under this section purchasers of the lands acquired a right by contract to exemption from taxation for the stipulated time is not denied, and this court so decided in McGee v. Mathis, 4 Wall. 143. The only dispute is as to the time the exemption is to continue. The railroad company insists that it is for ten years absolutely, and thereafter until the lands are reclaimed; the State, that it is for ten years, if the lands are not sooner reclaimed, but if they are, that it ceases on the reclamation. The Supreme Court of the State, in State v. County Court of Crittenden County (19 Ark. 360), as early as January, 1858, gave the statute the construction now contended for by the State, and this decision has never been overruled. It was expressly recognized by the Supreme Court of the State in McGee v. Mathis (21 id. 40), and by this court in the same case, which came here on writ of error, and is reported in the 4th of Wallace, supra. Counsel frankly concede that the language of the statute is ambiguous, and that the grammatical construction is in accordance with what has been ruled. All such exemptions are to be construed strictly. Every doubt is to be resolved in favor of the power to tax. Under such circumstances, if the question were an open one, we should have little difficulty in reaching the same conclusion as the courts of the State have done. Manifestly, therefore, we are not now called upon to overrule what has been settled for nearly a quarter of a century. It is expressly stated in the complaint that the lands held by the company were sold by the State more than ten years before this suit was begun. Consequently they are not exempt as swamp lands. Judgment affirmed. 262 Brandies v. Cochrane. [Sup. Ct. Brandies v. Cochrane. An appeal may be perfected without an order formally allowing it. It is in legal effect allowed when the circuit judge takes the security and signs the citation. Motion to dismiss an appeal from the Circuit Court of the United States for the Northern District of Illinois. Mr. Edwin F. Bayley in support of the motion. Mr. John 8. Monk, contra. Mr. Chief Justice Waite delivered the opinion of the court. This is a motion to dismiss because the appeal was not taken within two years after the entry of the decree. It appears from the record that the decree was entered on the 2d of August, 1879, and on the same day the complainants prayed an appeal, which was allowed upon their giving bond according to law. No bond was ever given under this allowance, and the case was not docketed here at the October Term, 1879. On the first of August, 1881, the circuit judge approved a bond for an appeal from the decree and signed a citation. The bond was on the same day filed with the clerk, and the citation served on the 18th of August.. On the 8th of October the Circuit Court entered an order allowing the appeal nunc 'pro tunc as of August 1. The case was regularly docketed in this court on the 13th of October. The circuit judge, by taking the security and signing the citation, allowed an appeal. No formal order of allowance was necessary. Sage n. Bailroad Company, 96 U. S. 712; Draper v. Davis, 102 id. 370. The appeal was, therefore, taken in time. The order of October 8th was not required to give it effect. Motion denied. Oct. 1881.] United States v. Railroad Co. 263 United States v. Railroad Company. 1. The court affirms Hecht v. Boughton, supra, p. 285. 2. A writ of error or an appeal will not lie from the final judgment or decree of the Supreme Court of the Territory of Wyoming, unless the amount in controversy exceeds $1,000, or the decision be rendered upon a writ of habeas corpus involving the question of personal freedom. 3. The same provision applies to a suit where the United States is the plaintiff, unless it be brought for the enforcement of a revenue law. Error to the Supreme Court of the Territory of Wyoming.* This was a suit in replevin, brought by the United States in one of the District Courts of the Territory of Wyoming, against the Union Pacific Railroad Company to recover the possession of certain goods intended for the Indian service. It was submitted on an agreed statement of facts, from which it appears that the goods belonged to the United States; that they were intended for the Indian service; that the United States had a contract with Dwight J. McCann for their transportation from New York to the White River Agency in Colorado ; that they were put into his hands for transportation under his contract; that he agreed with the railroad company for their tranportation from Omaha to Rawlins; that the company carried them as a common carrier under this ■ agreement to the place of destination, for which its proper charges were -$496.86; that on their arrival at Rawlins they were stored in the company’s warehouses for a long time; that for this storage the proper charge was $91.30; and that he had never paid any part of these charges. On the 20th of November, 1877, the United States demanded the goods of the company, but a delivery was refused unless the charges were paid, the company claiming the right to hold the goods under a carrier’s lien. The United States thereupon replevied them without having first paid the charges. The only controversy was as to the lien, and it was agreed that if, upon the facts, the court should be of opinion the company had a lien, judgment should be entered in its favor and against the United States for the amount of the charges. If, however, it should be decided there was no lien, judgment was to be entered against the company. The court decided there 264 United States v. Railroad Co. [Sup. Ct. was a lien, and gave judgment against the United States for $588.16, which was affirmed by the Supreme Court of the Territory. To review that judgment this writ of error was brought. The Solicitor-General for the United States. Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson, contra. Mr. Chief Justice Waite, after stating the case, delivered the opinion of the court. Under the decision in Hecht v. Boughton (supra, p. 235), the case should have been brought here by appeal, and not by writ of error. There was no trial by a jury. But there is still another objection to our jurisdiction. Under sects. 702 and 1909 of the Revised Statutes, writs of error and appeals from the final judgments and decrees of the Supreme Court of Wyoming lie to this court only when the amount in controversy exceeds $1,000, or.the judgment is on a writ of habeas corpus, involving a question of personal freedom. No exception is made in favor of the United States, and this is not an action brought for the enforcement of any revenue law. Consequently the United States are not entitled to a writ of error dr appeal if the same remedy would not be afforded under similar circumstances to a private party. United States v. Thompson, 93 U. S. 586. The value of the matter in dispute is the amount of the judgment that has been recovered. This is less than $1,000. It follows that we have no jurisdiction, and the writ is Dismissed. Oct. 1881.] Keyser v. Farr. 265 James v. McCormack. An appeal, dismissed under rule 16, will not be reinstated, unless good cause therefor be shown. Motion to reinstate an appeal from the Circuit Court of the United States for the Western District of Virginia. Mr. John Ambler Smith in support of the motion. Mr. John IF. Jbhnston and Mr. John A. Campbell, contra. Mr. Chief Justice Waite delivered the opinion of the court. When the appellant was called and his appeal dismissed, the case had been nearly three years on the docket of this court. He had no brief on file, and was not present, either in person or by counsel. Under these circumstances the appellees were entitled, under Rule 16, to a dismissal. No notice of their intention to enforce the rule was necessary. The appellant has not excused himself for his default, and his case is clearly within that of Hurley v. Jones (97 U. S. 318), in which we announced our intention to enforce rigidly this salutary rule, and not to set aside defaults growing out of the neglect of counsel or parties, except for very good cause. Motion denied. Keyser v. Farr. 1. Where, after the allowance of an appeal, the required supersedeas bond was duly approved and the cause entered here, the court below had no longer any control over the decree, and its subsequent order vacating that allowance is void. 2. Goddard v. Ordway (101 U. S. 745) distinguished. Appeal from the Supreme Court of the District of Columbia. Motion on the part of the appellants for a writ of supersedeas, and on the part of the appellees to dismiss. Mr. A. C. Bradley and Mr. West Steever for the appellants. Mr. W. Hallett Phillips and Mr. William A. Maury for the appellees. 266 Keyser v. Farr. [Sup. Ct. Mr. Chief Justice Waite delivered the opinion of the court. The decree in this case was rendered on the 26th of October, 1881. The record also shows that the court on the same day entered an order allowing an appeal and fixed the amount of the bond. On the 29th and 31st of October bonds for the appeal and supersedeas were executed by all the several appellants, and approved by the Chief Justice of the court. On the last day named the case was docketed in this court, and a transcript of the record filed. Afterwards, on the 14th of November, but during the term at which the order allowing the appeal was entered, the appellees moved the court below to require additional security from the appellants, Keyser, Howard, and Smith. On the hearing of this motion the court entered an order purporting to set aside and vacate the former allowance of an appeal, but at the same time made a new allowance to take effect on that day. Upon this state of facts, the appellants, fearing that execution may issue notwithstanding their appeal docketed here, move for an order restraining the court below from proceeding to enforce the decree, and the appellees move to dismiss : 1, because the allowance of the appeal has been vacated; and, 2, because the value of the matter in dispute is less than $2,500. After the acceptance of the bonds for the appeal, and the docketing of the cause in this court, the jurisdiction of the court below was gone. From that time the suit was cognizable only in this court. In Groddard v. Ordway (101 U. S. 745), there was nothing more than the formal order of allowance entered, as in this case, with the final decree. Such an order, while in that condition, it was held, was subject to the control which every court retains over its ordinary judgments during the term. In Draper n. Davis (102 U. S. 370), however, it was decided that, after a bond had been accepted by one of the judges in accordance with such an order of allowance, the jurisdiction was transferred from the court below. Here a bond was not only accepted, but the case was actually entered in this court. In this way clearly the court below was deprived of power to make its order of November 14. It follows that the motion to dismiss, so far as it is based upon the order of the Oct. 1881.] The “ S. C. Tryon.” 267 court below vacating its allowance of the appeal, must be denied, and that the supersedeas which followed in law from the acceptance of the bond by the Chief Justice is in force. Such was our ruling in Draper v. Davis (supra), on a similar motion at the last term. The questions presented by the other branch of the motion to dismiss are important, and have not been directly settled, as we think, by any decision yet made by this court. Their further consideration is postponed until the case is heard on its merits. The “S. C. Tryon.” 1. The findings of fact which, in admiralty cases in the Circuit Court, the act of Feb. 16,1875, c. 77 (18 Stat., pt. 3, p. 315), requires are in the nature of a special verdict, and constitute a part of the record. The law arising thereon will therefore be determined here, although no exception thereto was taken. 2. A bill of exceptions is required to reserve for review the rulings below upon questions of law during the progress of the trial. 3. The court in this case, while refusing to dismiss the appeal, grants a motion to affirm the decree, it appearing from the record that the appeal was taken for delay. Motion to dismiss an appeal from the Circuit Court of the United States for the District of Maryland, with which is united a motion to affirm. The Merchants’ Steamship Company, of Charleston, South Carolina, as owner of the steamship “ Falcon,” filed its libel in the District Court of the United States for the District of Maryland, in a cause of collision, civil and maritime, against the schooner “ S. C. Tryon,” and obtained a decree. The claimants thereupon appealed to the Circuit Court, which found the following facts: — About 4.30 p. m. on Saturday, the 8th of November, 1870, the steamer “ Falcon,” then owned by the libellant, being properly officered and manned, and in every way fitted for her voyage, left the port of Baltimore on a voyage to Charleston, South Carolina, with a valuable cargo of merchandise on board. 268 The “ S. C. Tryon.” [Sup. Ct. About 9.45 P. M. on said 8th of November, the said steamer was proceeding on her proper course, S. by E. | E., down the Chesapeake Bay, about eight miles above Cove Point, at the rate of nine miles an hour. All of her lights required by law were properly hung, burning brightly, and visible the prescribed distances. Her second mate, a competent licensed pilot, was in charge of her, standing in the pilot-house, with the man at the wheel. An able seaman and competent helmsman was at her wheel; a sufficient and competent crew were on duty ; two other able seamen were vigilantly occupied as lookouts, stationed far forward in the bow, in the position most advantageous therefor. About the time last mentioned both of the lookouts saw, and one of them immediately reported, a red light about one point over the port bow of the steamer. The second mate of said steamer looked with his glasses, saw the said red light in the direction in which it had been reported, and satisfied himself that it was on board a sailingvessel, a mile and a half or two miles off, coming up the bay with a fair wind. The man at the wheel then also saw it. It turned out afterwards to be the red light on board of the schooner “ S. C. Tryon,” coming up the bay, as the second mate supposed. The night was starlight; there was a seven-knot breeze from the southward; fair for said schooner; and there was no necessity for her, then or thereafter, to change her course. If there had been no change in the course of either vessel, they would have passed each other in safety, each on the port side of the other. As a matter of precaution, however, the helm of said steamer was immediately ported, until she fell off to S., a change of points in her course, and causing said schooner to bear about 2| points over the port bow of said steamer. The second mate and lookouts of said steamer continued to watch the light of said schooner, seeing all the time only her red light, and said steamer was kept on her new course, about points farther to the westward than her original course, until said vessels were about a mile apart; only the red light of said schooner was then visible; although no further change of course Oct. 1881.] The “ S. C. Tryon.” 269 on the part of said steamer seemed then to be necessary, as a matter of further precaution her helm was again ported a little. When the said vessels were three or four hundred yards from each other, about to pass each other in safety, sufficiently far apart not to justify even the apprehensions of danger, the said schooner, being still to the port of said steamer, and showing only her red light, suddenly, and without any justification therefor, put her helm hard a-starboard, and exhibited to said steamer both of her side lights. As soon as her green light was visible to those on board of said steamer, it was seen by both lookouts of said steamer, and by one of them immediately reported to the second mate of said steamer. The helm of said steamer was thereupon immediately put hard a-port, and in a few seconds thereafter her engines were stopped; but said vessels were then so near together that there was not sufficient time to reverse said engines, and the bow of said schooner struck said steamer about midships on her port side, cutting her down to the water’s edge, and damaging her so seriously that in about ten minutes she sunk, with all her cargo on board, in water six fathoms deep. The collision was entirely the result of want of proper care,, skill, and seamanship on the part of those in charge of said’ schooner, and the improper change in her course made in consequence thereof. Those in charge of said steamer did all in their power to keep out of the way of said schooner to prevent said collision,, and to lessen the consequences thereof. The libellant and the petitioners, and those in whose behalf petitions have been filed, sustained damages by said collision largely exceeding the amount of the stipulation filed for said schooner. The court found the following conclusions of law: — It was the duty of the steamer vigilantly to watch the movements of the schooner from the time she or either of her lights was visible to those on board of said steamer, and to takeproper measures to keep out of the way of said schooner. It was the duty of the schooner not to change her course so' as to baffle the efforts of the steamer to keep out of her way. 270 The “ S. C. Tryon.” [Sup. Ct. It was the duty of the steamer, even after the schooner had improperly changed her course, to do all she could to prevent a collision, and to lessen the consequences of one, if unavoidable. The court rendered a decree in favor of the libellant, and the claimants appealed to this court. Mr. John H. Thomas and Mr. G-eorge Leiper Thomas for the appellee, in support of the motions. There was no opposing counsel. Mr. Chief Justice Waite delivered the opinion of the court. A bill of exceptions is not necessary to give this court jurisdiction of an appeal in admiralty under the provisions of the act of Feb. 16,1875, c. 77 (18 Stat., pt. 3, p. 315). That act expressly provides that the review here shall extend to the determination of the questions of law arising upon the record, and to such rulings of the court, excepted to at the time, as may be presented by a bill of exceptions, prepared as in actions at law. At law a bill of exceptions is only used to put into the record that which would not appear without. The findings which the statute requires must be stated by the court. These, therefore, become part of the record without any action of the parties, and errors of law arising on them need not be presented by exceptions. They are in the nature of a special verdict, as to which the inquiry is always open in the reviewing court, whether, when taken in connection with everything else that appears, it is sufficient to support the judgment. The motion to dismiss must, therefore, be overruled, but on looking into the record we are satisfied the appeal was taken for delay. The only question presented arises on the findings of fact. From these it appears that the collision was due solely to an unjustifiable change of course by the schooner when the vessels were in close proximity, which baffled the steamer in her efforts to pass in safety. It is so well settled that a steamer is not liable for the consequences of a collision occurring in this way, that we do not deem it proper to retain the cause for further consideration. Motion to affirm granted. Oct. 1881.] Simmons v. Ogle. 271 Simmons v. Ogle. 1. Where, in a suit involving the right to lands, the equities of the respective parties are equal, the legal title must prevail. 2. Against the United States the presumption of a party’s claim of right to a tract of public land, growing out of his mere possession of it, is but very slight, and so long as the United States retains the legal title the Statute of Limitations does not run against it, nor does any equity in his favor arise from such possession and the non-assertion of that title. 3. A. recovered in ejectment possession of lands conveyed to him by the United States. The judgment defendant thereupon filed his bill, setting up that B., under whom he claimed, had long previously to the inception of A.’s title duly entered them at the proper office, and praying that A. be compelled to convey the legal title to the complainant. Neither the receipt of the receiver to B. for the purchase-money, nor the register’s certificate of purchase entitling B. to a patent, was produced or accounted for, and the defendant’s evidence strongly conduced to show that the papers never existed and that the sale was never made. Upon the facts, — Held, that the bill should be dismissed. Appeal from the Circuit Court of the United States for the Southern District of Illinois. The facts are stated in the opinion of the court. Mr. John JU Hoss and Mr. Franklin A. Me Conaughy for the appellant. Mr. James L. D. Morrison for the appellee. Mr. Justice Miller delivered the opinion of the court. Simmons recovered, on the seventeenth day of January, 1878, a judgment in ejectment against Ogle, for the possession of the south half of the northeast quarter of section three, township one north, of range nine west, in St. Clair County, Illinois, and under the proper writ was placed in possession of it. The title on which he recovered was a patent to himself from the United States, dated June 12, 1874. Ogle thereupon instituted the present suit in chancery to compel a conveyance of the legal title thus established by Simmons to himself, on the ground that he had a superior equity, by reason of which the title in Simmons should be decreed to be held by him in trust for the benefit of Ogle. After answer, replication, and a full hearing on the evidence, the court granted the prayer of the bill, and from that decree Simmons brings the present appeal. 272 Simmons v. Ogle. [Sup. Ct. There is much conflict in the testimony. Some parts of it are irreconcilable, and the result of it in producing any very clear conviction of the true state of the case is unsatisfactory, especially in regard to the foundation of the right of complainant to be the true equitable owner of the land. The fact which he takes upon himself to establish is that, on Dec. 30, 1835, one John Winstanley bought the land of the United States, at the land-office in Edwardsville, and paid for it. The subsequent conveyances and transfers from Winstanley to Ogle are not controverted, and if the purchase and payment now stated and alleged in the bill were satisfactorily established by the evidence, the decree should be affirmed. The evidence by which this proposition is supported is of two classes. 1. The records of the Edwardsville land-office, now found in the General Land-Office at Washington, where they were removed by law. 2. The conveyances and other proceedings by which, if Winstanley ever had any right, it became vested in Ogle, and the actual possession of the land by Ogle. As regards the first of these, the records of the Edwardsville land-office show a written application by Winstanley at that office, on the thirtieth day of December, 1835, for the purchase of the land. It is numbered 13,164, and shows the quantity of the land to be 84.46 acres, and the price to be paid si.25 per acre. There is, also, an entry on the books of the office, of which the following is a copy, and which is photographed in the record: — “No. 13,164. “Dec. 30, 1835, to John Winstanley, of St. Clair County, State of Illinois, for $.J NE. | section No. 3, township No. 1 north, range No. 9 west of the third principal meridian, containing 84^0- acres, at $1.25 per acre. $105.57. “ S. H. Thompson, Register." These, it is said, being the original entries made in the records of the local land-office, are sufficient evidence of the purchase and payment for that land by Winstanley, and that no Oct. 1881.] Simmons v. Ogle. 273 successful contradiction of them is found anywhere. When to this is added the conveyance by Winstanley to William 0. Anderson of the same land, in 1837, and that Anderson’s title came to Ogle, who, in 1851, took possession of the land and held it until his removal under the action of ejectment brought by Simmons against him, the case of complainant is substantially stated. As regards the weight to be given to the possession of Ogle, it is to be considered that whether he had the equitable right or not, neither the Statute of Limitations nor the equitable doctrine of lapse of time could begin to have effect against any one until Simmons purchased of the United States and obtained his patent in 1874, for up to that time the legal title was undeniably in the United States. If this had not been so Ogle would have successfully pleaded the Statute of Limitations against Simmons in the action at law. No laches could be imputed to Simmons, who brought suit very soon after he received his patent. Nor can laches be imputed to the United States, either as a matter of law or on any moral or equitable principles. For so common is it for squatters and trespassers to settle on the lands of the United States, and so indulgent are the laws in encouraging such settlements, and so numerous are these settlements without claim of right, and such is the impossibility of resisting or ejecting the settlers, or of efficiently asserting the right of possession by the government, that the weight of the inference in favor of any claim of right, whether legal or equitable, against the United States, growing out of mere possession, is very slight indeed. Nor do the sale and conveyance by Winstanley to Anderson afford any legal evidence of his right to do so, and very little that he believed himself to have such right. He could never be made responsible for more than the purchase-money, and, knowing what entries were on the books of the local landoffice, he might well be willing to take the money and the chances. The evidence, therefore, in support of the entries on the books of the land-office do not add greatly to its force, and the complainant’s case must rest on the intrinsic probability arising from those two pieces of evidence, that Winstanley bought and paid for the land. VOL. xv. 18 274 Simmons v. Ogle. [Sup. Ct. If either of these entries had stated the purchase and payment in words, they are open to the weakness which arises from the fact that in all such completed sales two other documents of superior probative force usually attend the sale, one of them invariably, neither of which is here produced or shown ever to have existed. The most conclusive of these is the patent. There is no pretence here that any patent ever issued to any one on Winstanley's purchase. It is proved that he was a careful business man, much accustomed to dealing in lands, and as he had sold this land, and made himself liable by a warranty deed, he would naturally have made that title secure by procuring the issue of the patent. It is, however, well known that early purchasers of the public lands were careless about their patents. But as a reason for this, they attached primary importance to the paper issued when a sale was made, and delivered to the purchaser by the resister and receiver of the land-office, called a certificate of entry. This is a paper in two parts, the first of which is signed by the register, giving a description of the land, the amount paid for it, the name of the purchaser, and a statement that on its presentation at the General Land-Office a patent would be issued to the purchaser. The second, signed by the receiver, is a simple receipt for the payment of the price, and a description of the land for which it was paid. The statutes , of almost every State and Territory in which the public lands have been sold provide for the registration of this instrument, and in all actions concerning title or possession declare it to be prima facie evidence of title. See Hurd’s Rev. Stat, of Illinois, sect. 31, c. 30, p. 271, and sect. 20, c. 51, p. 508. In the estimation of the people generally, and in the practice of the courts, it became the efficient substitute or equivalent of the patent, and in regard to millions of acres of land the patent either was never issued, or if issued never delivered, but remains in the local or the general land-office, subject to the call of the owner. In the case before us there is no evidence whatever, except presumption, that this certificate of entry ever had an existence. In the absence of the patent, it is the instrument of all others Oct. 1881.] Simmons v. Ogle. 275 which it is important to produce, or if it cannot be produced, to account for its loss. The only effort to do this is an affidavit of Ogle, that he went down to John Winstanley’s and examined through all his papers and did not find it. He wrote to the son of Anderson, to whom Winstanley sold it, who replied that he could find no paper of the kind. He went to the Commercial Bank of Cincinnati, which at one time had a mortgage on the land. They said a majority of the papers of the bank had been burned. So he failed to get the certificate, or any information about it. “ I do not know where it is, nor have I ever seen it,” he says. This would have been sufficient to authorize the introduction of a copy in evidence, if any copy existed. But no copy is produced, for the reason that no human being has been found who can say that any such paper ever existed, or was ever seen by any one. When we consider the number of persons interested in the property through Winstanley, there being several mortgages and intervening conveyances between him and Ogle, and that the certificate of entry, if ever made, could only have been forty years old when this suit was brought; that many persons must have been alive who had been interested in the title; this total absence of all evidence of its existence, no one ever having seen it, nor any copy of it, nor any record of it under the Recording Acts of Illinois, — the inference that such a paper was made and delivered to Winstanley is very much shaken. When we turn to the evidence of defendant there is much positive testimony to convince us that no such paper was ever delivered, and no such sale ever made. There are in pencil mark on the page where the application of Winstanley for this land, numbered 13,164, is found, the following words: “ 13,164. Changed to NE. i of NW. i, 9, 2, N. 9, W. 3d.” The transactions of the local land-offices are forwarded regu-larly to the General Land-Office at Washington, and accurate copies or duplicates are there found of all the transactions in the local offices, and in the present case the original records of the Edwardsville office, long since closed up, are in the General Land-Office. 276 Simmons v. Ogle. [Sup. Ct. Among these are found the following: — “ No. 13,164. Land-Office at Edwardsville, III., “ December 30, 1835. “ It is hereby certified that, in pursuance of law, John Winstanley, of St. Clair County, Illinois, on this day purchased of the register of this office the lot or west half of the northwest quarter of section number nine, of township number two north, in range number nine west of the third principal meridian, containing eighty acres and hundredths of an acre, at the rate of one dollar and twenty-five cents per acre, amounting to one hundred dollars cents, for which the said John Winstanley has made payment in full as required by law. “Now, therefore, be it known that on presentation of this certificate to the Commissioner of the General Land-Office, the said John Winstanley shall be entitled to receive a patent for the lot above described. “ S. H. Thompson, Register. “No. 13,164. Receiver’s Office, Edwardsville, III., “ December 30, 1835. “ Received from John Winstanley, of St. Clair County, Ills., the sum of one hundred dollars and cents, being in full for the west half of the northwest quarter of section number nine, township number two north, range number nine west of the third principal meridian, containing eighty acres and 100, at the rate of $1.25 per acre. “ 75 B. U. States “ 25 Specie; “$100. ,---- « $100 “ B. F. Edwards, Receiver, “ By Wm. H. Rider.” It will be observed that this certificate of entry bears date the same day of Winstanley’s application for the other piece of land. That it bears the same serial number as that application throughout, up to the issue of the patent, which is very important, as though it is possible Winstanley might have entered two pieces of land on the same day, they would necessarily have been separate entries and would not have borne the same number. Upon this certificate No. 13,164 there was issued on the second day of December, 1839, to John Winstanley a patent Oct. 1881.] Simmons v. Ogle. 277 for the land there described; for the other land no patent was ever issued to him. Another circumstance confirming the truth of the pencil memorandum is found in the cash-book or register of receivers’ receipts at Edwardsville, now on file in the General Land-Office. In that book, which is kept in tabular form, it is shown that on Dec. 30, 1835, on certificate No. 13,164, there was paid to the receiver, by John Winstanley $100, for the W. 4 NW. S. 9, T. 2, R. 9, 80 acres; and as the transcript is complete for that day no other receipt of money from Winstanley is shown. The quarterly account of the receiver with the department shows precisely the same thing. So that we here have the evidence of these records that Winstanley bought and paid for another piece of land on that day, under cover of the same No. 13,164 as to application and entry; that the price was $100, and not $105.46; that no certificate of entry is known to have ever been made for the tract first applied for, no evidence that any money was paid for it, no entry on the cash-book or quarterly account of the receiver of the amount for which the land in controversy could only have been sold ; but ample evidence that on that same day, and under the same entry number, Winstanley bought and paid for another piece of land near by, at the same office, for which he received the usual certificate of entry, and for which the patent was issued. We cannot resist the conclusion, in the presence of what is positively shown by the records, and what is wanting in the evidence of complainant in regard to the existence of a certificate of entry of this land, that the pencil memorandum whenever it was made is true, that on the same day, and before the purchase was finally completed, Winstanley changed his purpose, and bought and paid for the other piece of land, and that the officers omitted to make the requisite change in the application while making the transfer and preserving the original number. If, however, this were not so clear, the appellant here has the legal title and the possession, without fraud or any unfairness. He found the land subject to entry by the records of the land-office, and he bought and paid for it and has the title. In 278 Louisiana v. Pilsbury. [Sup. Ct. such case the maxim applies in all its force, that better is the condition of the defendant. The equities of the parties being equal, the legal title must prevail. Instead of the weak case made by appellee, the position of affairs required him to make clear and satisfactory proof of his superior equity. This he has signally failed to do. Decree reversed, and cause remanded with directions to dismiss the bill. Louisiana v. Pilsbury. 1. The act of the General Assembly of the State of Louisiana, of Feb. 23,1852, entitled “ An Act to consolidate the city of*New Orleans, and to provide for the government and administration of its affairs,” is not in conflict with article 118 of the State Constitution of 1845, which declares that “every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.” Nor does section 37 of the act (infra, p. 279) violate article 127 of that Constitution (infra, p. 290), touching equality and uniformity of taxation. 2. That article applied only to State taxes, and required that all the property on which they were levied — not all property in the State — should be taxed according to its value, and conformably to some fixed rate or mode. 3. By accepting the bonds which were issued under that section, and the supplementary act passed the same day, known as No. 72, and which formed the consolidated debt of New Orleans, the creditors of the city, of the municipalities, and of Lafayette entered into a contract with the city, an essential part whereof was the pledge to levy an annual tax of a specified amount for the payment of interest and principal. Although slavery has been abolished, the obligation of the city to raise the required fund by special tax on real estate remains, and the right of the bond-holders to enforce it is not waived by having received for years without objection the stipulated interest raised in another mode than that for which the contract provides. 4. The act of the General Assembly of Louisiana of March 6, 1876, so far as-it relates to the consolidated debt, is null and void, inasmuch as it provides for exchanging the debt for premium bonds, each of the denomination of twenty dollars, dated Sept. 1, 1875, the principal and interest to be paid at a time to be determined by chance in a lottery, and prohibits the levying of the stipulated tax to pay the interest due upon that debt. It also attempts to deprive the creditor of the means of enforcing payment which existed when the debt was contracted, and it furnishes no other adequate remedy. Error to the Supreme Court of the State of Louisiana. This was a petition of the State of Louisiana, on the relation Oct. 1881.] Louisiana v. Pilsbury. 279 of the Southern Bank, a corporation created under its laws and doing business in New Orleans, to one of its District Courts, for a mandamus to compel the municipal authorities of that city to levy a special tax to pay certain coupons on outstanding bonds issued under an act of the State in 1852, and to purchase the bonds with any surplus remaining of the moneys collected. The history of the issue of the bonds is as follows: The city of New Orleans was originally incorporated by an act of the legislature in 1805, and its charter continued in force until the 8th of March, 1836. An act was then passed which divided the city into three municipalities, each of which was created a distinct corporation, with “ such rights, powers, and capacities as are commonly incident” to municipal bodies. This division continued until Feb. 23, 1852, when, by an act known as act No. 71 of that year, and entitled “An Act to consolidate the city of New Orleans and to provide for the government and administration of its affairs,” the three municipalities were again united into one. The act of 1836 provided that a proportionate part of the debt of the city should be paid by each municipality, the quota being fixed upon the basis of the amount of taxes and other revenue accruing to it. The separate municipalities subsequently created debts; and the act of Feb. 23, 1852, provided for the issue of bonds for the payment of those debts, and also for the debt of the old city. The thirty-seventh section, which dealt with this subject, is as follows : — “ Sect. 37. Be it enacted, &c., that the debt of the general sinking fund, commonly called the old city debt, and the debts of the three municipalities, whether in the form of bonds, notes, interest coupons, cash warrants, or other s'pecies of obligation whatever, shall be assumed and paid by the city of New Orleans, and said city is hereby declared liable therefor. The mayor, comptroller, and treasurer, and chairmen of the finance committees of the two boards of the common council, shall constitute a commission, to be called the commissioners of the consolidated debt of New Orleans; and they shall have power to issue bonds of the city of New Orleans, having not more than forty years to run, with interest payable at such place as may be agreed on between said commissioners and the parties to whom the bonds are issued, in semi-annual coupons, 280 Louisiana v. Pilsbury. [Sup. Ct. in exchange for any bonds, obligations, or debts of the old corporar tion, or of any of the old municipalities, whether matured or not, or to sell the new bonds and apply the proceeds to the payment of the matured debts of the old corporation or of the municipalities, but to no other purpose. The bonds thus issued shall form a stock to be called thg consolidated debt of New Orleans. At the time this act goes into operation, an exact and detailed statement of the indebtedness of the old corporation and of each municipality shall be filed in the office of the comptroller, by the secretary of the board of liquidators and the municipal comptrollers respectively, when the commissioners of the consolidated debt shall proceed to divide the debt of the old corporation between the several municipalities, in proportion to the assessed value of real estate within the limits of each, according to the State assessment roll for 1851. The amount thus apportioned to each, together with its individual indebtedness at the time this act goes into operation, shall constitute the separate debt of each municipality, and shall be known as thè debt of municipality No. one, No. two, No. three. The common council shall, annually, in the month of January, pass an ordinance to raise the sum of six hundred thousand dollars, by a special tax, on real estate and slaves, to be called the consolidated loan tax, and the rate per cent of said tax, in each municipality, shall be in proportion to the indebtedness of each. All ordinances, resolutions, or other acts passed by said council, after the first day of January in each year, shall be null and void, unless the ordinance imposing the consolidation loan tax shall have been previously passed. At the end of each and every year, any surplus of the consolidated loan tax remaining in the treasury, after the payment of all the interest and the expenses of the management of said debt, shall be applied to the purchase, from the lowest bidder, of such bonds issued under this act, as have the shortest period to run ; and the common council shall have the right of rejecting all bids demanding more than the face of the bonds ; for which purpose, public notice shall be given by the comptroller in the official gazette for thirty days, inviting proposals from bondholders for the sale, to the city, of the bonds herein described. From and after the passage of this act no obligation or evidence of debt of any description whatever, except those herein authorized, shall be issued by the city of New Orleans or under its authority ; nor shall any loan be contracted, unless the same be authorized by a vote of a majority of the qualified voters of said city, which shall be taken in the manner prescribed by the city council, after ten days proclamation by the mayor, in the news Oct. 1881.] Louisiana v. Pilsbury. 281 paper chosen by the common council; and no ordinance creating a debt or loan shall be valid, unless such ordinance shall prescribe ways and means for the punctual discharge at maturity of the capital borrowed or debt incurred; and such ordinances shall not be repealed until principal and interest of the capital borrowed or the debt incurred are fully paid and discharged.” By a supplementary act approved on the same day, known as No. 72 of the year, the adjacent city of Lafayette was added to the city of New Orleans, and provision was made for the assumption and payment of its debt. The fifth section of the act is as follows: — “ Sect. 5. Be it further enacted, &c., that the debt of the city of Lafayette shall be assumed and paid by the city of New Orleans, and the said city of New Orleans is hereby declared liable therefor; and the amount of said debt shall be ascertained, and its payment provided for and made in the same manner as the debt of each municipality of New Orleans is ascertained and provided for in the act to which this act is a supplementand in raising annually the consolidation loan tax for the payment of the debt of New Orleans, an additional sum of fifty thousand dollars shall be raised for the purpose of providing for the debt of the city of Lafayette, now added to that of New Orleans, so that the whole amount of the annual levy of taxes for the payment of the debt of New Orleans shall be six hundred and fifty thousand dollars.” Under these acts, No. 71 and No. 72, the commissioners of the consolidated debt issued bonds of the city of New Orleans, known as consolidated bonds, to the amount of ten million dollars, in exchange for the bonds, obligations, and debts of the old city, of the three municipalities, and of the city of Lafayette. Of this amount bonds exceeding five million dollars have been paid by funds received under the tax levied pursuant to the provisions of the thirty-seventh section of act No. 71 and of the fifth section of act No. 72, beyond what was necessary to meet the annual interest. There remain outstanding bonds for more than four million dollars, with interest since 1876. Of these bonds, with unpaid coupons, the relator owns upward of six hundred, each for the sum of one thousand dollars. 282 Louisiana v. Pilsbury. [Sup. Ct. The petition refers to the acts No. 71 and No. 72 of 1852, and cites at length the sections mentioned. It also alleges that the bonds issued under them were negotiable securities ; that by reason of the law providing for the payment of the interest and the gradual reduction of their number through a sinking fund, they were negotiated at their par value or above it, and distributed in the markets of Europe and of the United States in the due course of business as a secure, permanent, and trustworthy investment ; that the free banks of the State were compelled to invest in them to secure the circulation of their bills, and that individuals and corporations did likewise with confidence in the provisions of sect. 37 of act No. 71, and sect. 5 of act No. 72, for the maintenance and enforcement of which the public faith of the State of Louisiana and of the city of New Orleans was inviolably pledged. The petition then alleges that, in violation of the provisions of law mentioned, which constitute a contract with the bondholders, binding both upon the State of Louisiana and the city of New Orleans, the legislature of the State, on the 12th of March, 18.74, passed an act entitled “ An Act to postpone the levy and collection by the city of New Orleans of a tax for a sinking fund for the purchase of its bonds, to authorize thé administrators of the city to modify the last budget and tax levy, and to repeal conflicting laws and penalties, the object of which was to relieve the authorities of the city until December, 1876, from the duty of estimating, levying, and collecting any tax for a sinking fund for the purpose of purchasing any of the bonds issued under the acts mentioned. The petition also alleges that, in further violation of the provisions of the act of 1852, and of the contract with the holders of the bonds, the legislature, on the 6th of March, 1876, passed another act, designed, as stated in its title, to adjust, regulate, and provide for the bonded debt of the city of New Orleans, and authorize the exchange of its bonds for other bonds to be issued on the plan known as the premium bond plan, the avowed object of which was to impair, if possible, the obligation of the contract between the bondholders and the city, and divest the rights acquired by them under it, by prohibiting the city authorities from levying a tax in any year under the pro Oct. 1881.] Louisiana v. Pilsbury. 283 visions of the acts of 1852, by shackling the judicial tribunals in the issue of process, and by repealing the provisions of that act. The seventh section is as follows: — “ Sect. 7. Be it further enacted, ^c., that no tax for the payment of bonds or interest on bonds other than that authorized by the preceding sections [the premium bonds], shall be levied either for the year 1876, or any year or years thereafter, by the city of New Orleans, and that all existing laws requiring or authorizing the city council to levy any tax whatsoever for bonds or interest on bonds, other than said premium bonds, be and the same are hereby repealed; and it shall be hereafter incompetent for any court to mandamus the officers of said city to levy and collect any interest tax other than that provided in this act, or in case of such mandamus, by a receiver or otherwise, to direct the levy and collection of any such tax.” The petition then avers that these acts of the legislature of Louisiana are in conflict with the Constitution of the United States, in that they impair the obligation of the contract between the bondholders and the city; that nevertheless the authorities of the city, its mayor and administrators, in disregard of the provisions of the acts of 1852, and in contempt of their duties and of the rights of the relator and other bondholders similarly situated, have refused to perform the duty imposed upon them by those acts for the years 1874, 1875, 1876, and 1877, to levy a special tax for the payment of the matured coupons and the purchase of bonds; that they have levied upon the property subject to the levy of such special tax for the payment of the consolidated bonds, other taxes to meet other bonds issued by the city in disregard of the prohibitory clauses of sect. 37 of the act of 1852, and the moneys collected have been applied to the payment of those bonds, and other illegal purposes; that the authorities of the city have been notified to levy the special tax required for the years mentioned, but they have refused to discharge their duty in that particular, and, in place thereof, have sought by all sorts of frivolous and unfounded technicalities to contest the validity and integrity of the consolidated bonds ; that the relator has demanded payment of the matured coupons 'held by it, which 284 Louisiana v. Pilsbury. [Sup. Ct. was refused, the city authorities answering that there were no funds out of which they could be paid ; and that the city and the taxable real estate within its limits are liable for the payment of the matured coupons and for the purchase of said bonds to the extent of $650,000 per annum, for the years 1874, 1875, 1876, and 1877, less coupons paid for 1874 and 1875. The petitioner, therefore, prays for a mandamus and an injunction; the former, commanding the city authorities to levy the special tax of $650,000 for the years named; and the latter, enjoining them from levying any other tax on real estate within the limits of the city which is subject to the special tax for the consolidated debt, until the special tax has been levied. Upon the petition, an alternative writ of mandamus was issued, requiring the city authorities to show cause why they should not comply with its prayer. The authorities appeared on the return-day and excepted to the jurisdiction of the court to grant the writ, on the following grounds: — 1st, That by the provisions of the acts of the legislature — No. 5 of the extra session of 1870, and No. 31 of 1876 — the courts of the State were prohibited from issuing a writ of mandamus to compel the respondents to pay any debt not liquidated by judgment, or to levy and collect any interest tax other than that provided in act No. 31 of 1876 (the premium bond act). 2d, That the duty of the respondents, by the city charter and the sixth section of the act No. 31 of 1876, was limited to the levy and collection of a tax on the assessed value of all property subject to taxation within the city, at a rate not exceeding one and one-half per cent on the dollar, to meet all expenses of the city government, and to pay the interest on its bonded debt. 3d, That the respondents are expressly forbidden, by said act No. 31 of 1876, from levying the tax demanded for the year 1876, or for any year afterwards. 4th, That the legislature, by act No. 53 of 1874, had suspended the levy and collection of any tax for the sinking fund under the act of 1872 until December, 1876, which, the re- Oct. 1881.] Louisiana v. Pilsbury. 285 spondents charge, was passed with the assent of the Southern Bank. And if the exceptions should be overruled, the respondents, reiterating and pleading the matters contained in them as part of their answer, further add: — 5th, That the provisions of the thirty-seventh section of act No. 71 of 1852 are unconstitutional and void, because their object is not expressed in the title of the act, as required by art. 118 of the Constitution of 1845, in force at the time. 6th, That the tax provided by the section mentioned is unconstitutional and void, and in violation of sect. 127 of the Constitution of 1845, and art. 123 of the Constitution of 1852; because, first, it is to be assessed on real estate and slaves, and not on personal property; and, secondly, because the rate per cent of the tax in each municipality is to be in proportion to the indebtedness of each. By a supplementary answer the respondents reiterated the same objections to the writ in more ample terms. Various parties, including the State of Louisiana, holders of premium bonds, owners of real estate in the city, and taxpayers, were allowed to intervene under the practice which obtains in Louisiana, and various exhibits produced by them were made part of the case. In March, 1878, the District Court gave judgment granting a peremptory writ of mandamus as prayed, and denying the injunction. On appeal to the Supreme Court of the State this judgment was reversed, and judgment entered that the demand of the relator be dismissed, with costs, in both courts. To review this judgment the case is brought to this court. Mr. John A. Campbell and Mr. Edward Bermudez, with whom was Mr. Daniel H. Chamberlain and Mr. William B. Hornblower, for the plaintiff in error. Mr. Benjamin F. Jonas and Mr. Henry C. Miller for the defendant in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. As will be seen by the statement of the case, the petition for the mandamus proceeds upon the theory that the transac 286 Louisiana v. Pilsbury. [Sup. Ct. tion, authorized by the thirty-seventh section of the act of 1852, and the fifth section of the supplementary act of the same day, when consummated by the issue of the bonds of the city of New Orleans, and their exchange for the obligations of the old city, of the three municipalities, and of the city of Lafayette, constituted a contract between the city and the bondholders, the obligations of which could not be subsequently impaired by State legislation; and that the provision pledging the levy and collection of an annual tax of $600,000, increased by the supplementary act to $650,000, for the payment of the interest on the bonds, and their gradual retirement, was an essential part of that contract. On the other hand, the city authorities, the respondents here, deny the validity of the act of 1852, on two grounds: 1st, that its object is not sufficiently expressed in its title, under the Constitution of 1845 ; and, 2d, that in providing for a tax to be levied upon real estate and slaves, to the exclusion of personal property, and in proportion to the indebtedness of each municipality, it violates the Constitution of 1845, which requires equality and uniformity of taxation throughout the State. And they also invoke against the issue of the writ the subsequent legislation of the State limiting the taxes which shall be levied upon property in the city, prescribing the purposes to which they shall be applied, prohibiting the levy and collection of any other tax, and depriving the courts of the State of the power to issue a mandamus to compel them to pay any debt not liquidated by judgment, or to levy and collect any interest tax other than that provided by the premium bond act of 1876. Assuming for the present that the act of 1852 is not invalid, for the reasons stated, the first inquiry is as to the character of the transaction authorized by it and the supplementary act. Did it, when consummated, amount to a contract between the city and parties subsequently taking the bonds; and did the pledge to levy the annual tax named form a part of the contract? Unless both of these questions can be answered in the affirmative, it will be to no purpose to inquire into the subsequent legislation of the State respecting the tax, as no inhibition would rest upon its power over the subject. Oct. 1881.] Louisiana v. Pilsbury. 287 The acts of 1852 consolidated the three previously existing municipalities within the limits of New Orleans into one, and added to it the adjacent city of Lafayette. The new corporation took all the property and interests of the municipalities, and of Lafayette, and consequently became subject to their obligations. The advantages which accrued from the possession of their property were accompanied with the burdens of their debts. This liability was not, however, left to rest upon any general principles of corporate liability in such cases. The legislature recognized its existence, and in consolidating the municipalities and the corporation of Lafayette, declared that the debts of the old corporation, of the municipalities, and of that city, should be assumed and paid by the city of New Orleans, which was declared to be liable therefor. The first of the acts appointed commissioners of the debt thus consolidated, and authorized them to issue new bonds of the city having forty years to run, with interest coupons payable semiannually, in exchange for the obligations and debts of the old corporation, and of the municipalities, to which the debts of Lafayette were subsequently added by the Supplementary act. To meet the interest it provided that the common council of the city should annually, in the month of January, pass an ordinance to raise the sum of $600,000, increased to $650,000 by the supplementary act, by a special tax on real estate and slaves, to be called the consolidated loan tax. It also provided that any surplus remaining at the end of each year, after payment of the interest on these bonds, and the expenses of managing the debt, should be applied to the purchase of such of the bonds as might have the shortest period to run. These provisions, until the bonds were accepted, were in the nature of proposals to the creditors of the old city, of the municipalities, and of Lafayette. The State in effect said to them : The city will give these bonds, running for the period designated, and drawing interest, in exchange for your demands ; and as security for the payment of interest, and the gradual redemption of the principal, the city shall annually, in January, levy a special tax for that purpose to the amount of $650,000. The provisions were designed to give value to the proposed bonds in the markets of the country, and necessarily operated 288 Louisiana v. Pilsbury. [Sup. Ct. as an inducement to the creditors to take them. When the bonds were issued and taken by the creditors, a contract was consummated between them and the city as fully as if all the provisions had been embodied as express stipulations in the most formal instrument signed by the parties. On the one hand, the creditors surrendered their debts against the former municipalities; and, on the other hand, in consideration of the surrender, the city gave to them its bonds, which carried the pledge of an annual tax of a specified amount for the payment of the interest on them, and ultimately of the principal. The annual tax was the security offered to the creditors; and it could not be afterwards severed from the contract without violating its stipulations, any more than a mortgage executed as security for a note given for a loan could be subsequently repudiated as forming no part of the transaction. Nearly'all legislative contracts are made in a similar way. The law authorizes certain bonds to be issued, or certain work to be done upon specified conditions. When these are accepted, a contract is entered into imposing the duties and creating the liabilities of the most carefully drawn instrument embodying the provisions. Von Hoffman v. City of Quincy, 4 Wall. 535; Hartiaan N. G-reenhow, 102 U. S. 672; People v. Bond, 10 Cal. 563; Brooklyn Park Company n. Armstrong, 45 N. Y. 235. There were other provisions in the act of 1852 besides those stated, which, though not essential to the obligatory form of the contract, were designed to inspire the creditors with confidence in the punctual payment of the interest and principal. It declared that all ordinances, resolutions, or other acts passed by the council after the first day of January of each year should be null and void, unless the ordinance imposing the consolidated loan tax should have been previously passed. It also declared that after its passage no obligation or evidence of debt of any description whatever, except those therein authorized, should be issued by the city or under its authority. Whatever legal force may be ascribed to them, they were intended as solemn asseverations that the pledge of the annual tax should never be violated. > The question then arises, Was the act of 1852 valid? Its Oct. 1881.] Louisiana v. Pilsbury. 289 invalidity is asserted, as stated above, on two grounds; the first of which is that its object is not expressed in its title, as required by article 118 of the Constitution of 1845. The title of the act is “ An Act to consolidate the city of New Orleans, and to provide for the government and administration of its affairs.” The article of the Constitution declares that “ every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title.” A similar provision is found in several State Constitutions. Its object is to prevent the practice, common in all legislative bodies where no such provision exists, of embracing in the same bill incongruous matters, having no relation to each other, or to the subject specified in the title, by which measures are often adopted without attracting attention, which, if noticed, would have been resisted and defeated. It thus serves to prevent surprise in legislation. But it was not intended to forbid the union of several different provisions in the same bill, if they are germane to the general subject indicated by its title. A bill to incorporate a city and provide for its government may, without conflicting with the constitutional clause, contain provisions relating to the various subjects upon which municipal legislation may be required for the preservation of peace, good order, and health within its limits, the promotion of its growth and prosperity, and the raising of revenue for its government. So here, under the title of the act in question, provisions might be enacted, not merely relating to the union of the different municipalities and the government of the city, but to all the varied details into which the general administration of its affairs might lead. The municipalities were in debt at the consolidation, and this was well known to the legislature. A change in their government, and in the administration of their affairs, required some disposition to be made of their debts. Whatever interests were possessed by them were the proper subjects of legislation in the act which took them out of existence as separate municipalities and created a new corporation in their place, with power to deal with their affairs. We hold, therefore, that the act of 1852 was not invalid, on the ground that its object is not sufficiently expressed in its title. VOL. XV. 19 290 Louisiana v. Pilsbury. [Sup. Ct. The second ground of objection to the validity of the act of 1852 is, that the tax prescribed is to be levied upon real estate and slaves to the exclusion of personal property, and in each municipality in proportion to its indebtedness ; which, as contended, violated the rule of equality and uniformity required by the Constitution of 1845. The language of the act is, that “ The common council shall annually, in the month of January, pass an ordinance to raise the sum of $600,000, by a special tax on real estate and slaves, to be called the consolidated loan tax, and the rate per cent of said tax in each municipality shall be in proportion to the indebtedness of each.” This amount, as already stated, was, upon the annexation of the city of Lafayette, increased to $650,000. On the passage of this act, —Feb. 23, 1852, — the Constitution of 1845 was in force. The Constitution of 1852 was not adopted until July of that year. Article 127 of the Constitution of 1845 is as follows: “ Taxation shall be equal and uniform throughout the State. After the year 1848, all property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value on which taxes shall be levied ; the legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade, or profession.” This article has been frequently before the Supreme Court of the State for construction, and until the decision of the present case the requirement of equality and uniformity in the tax has been held to apply only to taxes levied for State, and not to those levied for municipal, purposes. The first case was Second Municipality of New Orleans v. Duncan^ 2 La. Ann. 182. That municipality had passed an ordinance imposing a special tax of one per cent on all real estate within its limits, for the purpose of paying its debts and providing for the support of schools; and objection was taken to its constitutionality on two grounds: 1st, that the power of taxation was vested exclusively in the legislature, and could not be delegated to the municipality; and, 2d, that the taxation authorized impinged upon the rule that no one species of property should be unduly assessed. Both grounds were supposed to derive support from Oct. 1881.] Louisiana v. Pilsbury. 291 the article of the Constitution in question, — the first, because, as contended, the equality and uniformity required throughout the State were only obtainable by confining the exercise of the power of taxation to the legislature, whose authority was coextensive with the territorial limits of the State; and the second, from the inhibition against taxing one species of property higher than another. But the court replied, speaking through its Chief Justice: “The article by its terms applies to State, and not to municipal, taxes. It provides for equality and uniformity of taxation throughout the State. . . . The framers of the Constitution had before them the condition of the municipalities of New Orleans, with their debts, their abuses, and their wants; and their corporate existence is recognized and continued, as to certain public rights, by an express provision. The jurisprudence under which thé present system of taxation had grown up was before them, and the power of remedying the evils of misgovernment was left in statu quo, with the legislature ; and the convention confined itself to providing for the State government, leaving the municipal bodies, as it is believed sound policy justified, under legislative control.” And referring to the admission made in the record that there was no special ordinance of the municipality assessing taxes on personal property, the court added: “We know of no reason imperative on the municipality to impose their taxes in any particular form, or to include any other species of property in an ordinance imposing a tax on real estate. It constitutes no objection, under any view of the subject, to the validity of this tax, that personal property was not also taxed by special ordinance.” This case was decided in 1847, and it is objected that it arose before that part of the article went into effect, which declares that “ no one species of property shall be taxed higher than another species of property of equal value on which taxes shall be levied.” It is doubtful whether this objection be correct in point of fact, but assuming it to be so, the requirement of equality and uniformity was in force ; and the part cited does not require that taxation shall be universal. It simply requires that when different kinds of property are taxed, the rate of taxation shall be the same on all. The construction 292 Louisiana v. Pjlsbury. [Sup. Ct. given was afterwards affirmed by the same court in City of Lafayette v. Cummins (3 La. Ann. 673), decided in 1848. There the question was as to the validity of a municipal tax on the trade and occupation of the defendant as a butcher, levied under an ordinance of the city passed in 1847. There were other trades and occupations not embraced in the ordinance, and, consequently, not taxed. It was, therefore, contended that the imposition of the tax was contrary to that clause of the article of the Constitution which provides for the equality and uniformity of taxation throughout the State. But the court replied that “ in the case of Duncan v. Second Municipality, this question, after very thorough argument, was determined by this court, and the article was held applicable only to State, and not to municipal, taxes.” It is said in answer to this decision that the language of the court was a mere dictum. We do not so regard it. The point of contention in the case was whether the equality and uniformity applied to taxation on occupations and trades as well as on property. The answer which met the objection to the taxation on real property exclusively was held to meet the objection to taxation on certain occupations to the exclusion of others. The Constitution of 1852 contained a similar clause, — identical in language, omitting the words “ after the year 1848,” — and with one exception, subsequently reversed, it has received a similar construction from the Supreme Court of the State. The case referred to was that of Municipality No. 2 v. White and Others, which arose in 1854. 9 La. Ann. 446. The municipality had imposed a tax on the owners of property contiguous to a newly opened street, to pay the expenses of opening it, under a law which authorized the apportionment of the cost in such cases upon the owners of adjacent property, according to the benefit derived from the improvement. The court was of opinion that the law was liable to the objection that the tax was not equal and uniform, as required by the clause in question, and held it to be unconstitutional. The decision was in conflict with that in Duncan’s case, but it was rendered by a divided court; and in Yeatman n. Crandall, which arose in 1856, it was overruled. In the latter case, the plaintiff sought to enjoin the collection of a levee tax, which ^was imposed on Oct. 1881.] Louisiana v. Pilsbury. 293 certain alluvial lands, on the ground that the statute authorizing it was unconstitutional, in that it violated the rule of equality and uniformity prescribed by the article in question. But the court said: “ This article refers to State taxation, in its proper sense, for general or State purposes. When it says that taxation shall be equal and uniform throughout the State, it points directly to its object, which is to regulate the mode of filling the State treasury. It does not take away the power of making local assessments for local improvements, upon the equitable principle that he who reaps the benefit must bear the burden. ... It is notorious that an acre of land pays twice as great a tax for local purposes in one parish as an acre of equal value pays in another parish. Yet no one thinks the Constitution infringed by such a state of things.” 11 La. Ann. 220. By this decision the doctrine of the earlier cases, upon the clause in the Constitution of 1845, was re-established ; and one of the judges, who had concurred in the decision in the White case, stated that he had been led to reconsider his opinion, and that he yielded his former impressions on this point the more readily, because the Supreme Court which sat under the Constitution of 1845, and five of the seven judges with whom he had sat upon the bench, had concurred in holding that the article in question was not intended to apply to municipal or local taxation for local improvements. The doctrine of this case was affirmed the same year in Surgi v. Snetchman (11 La. Ann. 387), and again in 1859 in Wallace v. Shelton, 14 id. 498. In its opinion, in the latter case, the court said that the questions in the Yeatman case were decided upon full consideration, after having the aid of the arguments of learned counsel in that case, and also in another case then under consideration on a rehearing, and were subsequently affirmed in the two cases mentioned; and added that, “ after these decisions, which were in conformity with those under the Constitution of 1845, we had hoped the question would be considered as at rest.” The objection to the want of equality and uniformity in the taxation authorized by the act of 1852, in that it was to be levied on the property of the different municipalities in pro 294 Louisiana v. Pilsbury. [Sup. Ct. portion to the indebtedness of each, does not strike us as possessing much force. The debts created by the municipalities were separate and different in amounts, and before the consolidation the taxes upon the property in them must necessarily have been assessed at different rates. There was no obligation upon the legislature to relieve either of them from the unequal burdens consequent upon the different amounts of their indebtedness. The subject was one resting in its discretion. Nor was it an unreasonable provision, when authorizing the city to issue its bonds for the indebtedness of them all, to require that taxation to raise the funds for their payment should be thus apportioned. From the extended reference to the adjudications of the Supreme Court of Louisiana, upon the Constitution of 1845, requiring uniformity and equality in taxation, there can be no serious question as to the validity of the act of 1852, so far as the consolidated bonds of the city of New Orleans are concerned, and the provisions made by it and the supplementary act for the annual levy of a tax of $650,000 to pay the interest and reduce the principal. The decisions upon the clause of the Constitution of 1852 are corroborative of the correctness of the construction originally placed upon the clause of the Constitution of 1845. Whether such a construction was a sound one is not an open question in considering the validity of the bonds. The exposition given by the highest tribunal of the State must be taken as correct so far as contracts made under the act are concerned. Their validity and obligation cannot be impaired by any subsequent decision altering the construction. This doctrine applies as well to the construction of a provision of the organic law, as to the construction of a statute. The construction, so far as contract obligations incurred under it are concerned, constitutes a part of the law as much as if embodied in it. So far does this doctrine extend, that when a statute of two States, expressed in the same terms, is construed differently by the highest courts, they are treated by us as different laws, each embodying the particular construction of its own State, and enforced in accordance with it in all cases arising under it. Christy v. Pridgeon, 4 Wall. 196, and Shelby v. Gruy, 11 Wheat. 361. The statute as thus Oct. 1881.] Louisiana v. Pilsbury. 295 expounded determines the validity of all contracts under it. A subsequent change in its interpretation can affect only subsequent contracts. The doctrine on this subject is aptly and forcibly stated by the Chief Justice in the recent case of Douglass v. County of Pike, 101 U. S. 677, 687. “ The true rule,” he observes, “is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of a legislative enactment.” See also Grelpcke v. City of Dubuque, 1 Wall. 175; Havemeyer v. Iowa County, 3 id. 294; Thomson v. Lee County, id. 327 ; Lee County v. Rogers, 7 id. 181; Chicago v. Sheldon, 9 id. 50; Olcott v. The Supervisors, 16 id. 678; Fairfield v. County of Gallatin, 100 U. S. 47. We refer to this doctrine, not from any doubt as to the correctness of the construction of the article of the Constitution of 1845 given by the Supreme Court of the State, but in answer to the objections of counsel and the position of the court below. We are of opinion that the construction given was correct. It is impossible to apply to the varying wants of a municipality the rule invoked with reference to taxation for State purposes on property throughout the State, without producing the very inequality which that rule was designed to prevent. There would often be manifest injustice in subjecting the whole property of a city to taxation for an- improvement of a local character. The rule that he who reaps the benefit should bear the burden must in such cases be applied. The same construction of a similar clause in the constitutions of other States has been adopted by their highest courts. The Constitution of Virginia of 1850 prescribed that “ taxation shall be equal and uniform throughout the Commonwealth, and all property, other than slaves, shall be taxed in proportion to its value, which shall be ascertained in such manner as may be prescribed by law; ” 296 Louisiana v. Pilsbury. [Sup. Ct. and the Court of Appeals of the State held that the provision related solely to taxation for purposes of State revenue, and did not apply to taxes by counties and corporations for local purposes. Grilkeson v. The Frederick Justices, 13 Gratt. (Ya.) 577. The Constitution of Arkansas of 1836 provided that “all property subject to taxation shall be taxed according to its value, — that value to be ascertained in such manner as the General Assembly shall direct, — making the same equal and uniform throughout the State ; ” and the Supreme Court of the State held that the provision was intended to apply to State revenue, and was not applicable to taxes levied for county purposes. Washington v. The State, 13 Ark. 752. See also McGehee n. Mathis, 21 id. 40. That taxation for State purposes, to be equal and uniform within the meaning of the Constitution of 1845, need not have been universal, is a proposition which calls for no argument. It was only necessary that all property on which taxes were levied — not all property in the State — should be taxed according to its value, and in conformity with some fixed rate or mode. State v. Lathrop, 10 La. Ann. 398; New Orleans v. Commercial Bank, id. 735. The validity of the consolidated debt of New Orleans, and the obligation of the city to provide for the payment of the interest and the redemption of the principal, were never questioned by the legislative department of the State until 1876, but were repeatedly and in the most emphatic manner recognized and affirmed. In fourteen acts of the legislature passed prior to that yeai' the consolidated bonds are referred to as valid obligations Of the city, though in one of them, it is true, a different mode of raising the tax from that specified in the act of 1852 is required, and in another the levy and collection of the tax are postponed for two years. Thus the act passed in 1856 amending the charter provides that the common council shall in each year levy an equal and uniform tax upon all property in the city, real and personal, but that said tax, added to the consolidated loan tax and other taxes designated, shall not in the aggregate be more than one dollar and a half on one hundred dollars of valuation, except in case of invasion, “ provided it be sufficient to pay the interest on the consolidated debt and Oct. 1881.] Louisiana v. Pilsbury. 297 railroad bonds issued by the city of New Orleans.” In the mode thus prescribed the amount stipulated by the act of 1852 was annually raised and applied until 1874, without objection from the bondholders. Hence it is contended that they waived their right to the special tax mentioned. But no such inference can be justly drawn from their silence. They could not complain so long as the amount prescribed was raised and applied as stipulated. Had the requisite funds been given to the city, and then applied to pay the interest on the bonds, and to purchase with the residue such of them as had the shortest time to run, the bondholders would have been equally without cause of complaint, and would as little have waived by their silence the right to insist upon the special tax if a resort to it should become necessary. Nor is their right in that respect affected by the fact that since 1852 slavery has been abolished, and that there are no longer slaves upon whom taxation can be levied. The obligation of the city to raise the required fund by special tax on real estate still remains. That is no more lessened than it would be by the destruction of any other portion of the taxable property; although the rate of taxation on what is left might be thereby increased. The act of 1874, which postponed the levy and collection of the tax for a sinking fund for the purchase of bonds of the city until December, 1876, also declared that the act should in no wise be construed to hinder, delay, or affect the prompt payment of the interest on them as they matured. The validity of the consolidation bonds was “ recognized in all its integrity, it being the object of the act to afford temporary relief to the taxpayers of New Orleans in the embarrassed condition of its affairs, and not to detract from or impair the rights of the holders of said bonds.” But notwithstanding this declaration of the validity of the consolidated debt, and the inviolability of the provisions for its payment, no tax was subsequently raised to pay the interest, or to retire the principal. And before the time arrived to which the postponement of a levy was made, new light respecting the obligations of the city and the rights of the bondholders had dawned upon the city authorities. Although for twenty-two years all departments of the State government had recog 298 Louisiana v. Pilsbury. [Sup. Ct. nized the validity of the bonds, and the annual interest had been regularly paid, and more than half of them retired, it was then for the first time discovered that the act of 1852, authorizing the issue of the bonds, was invalid, that its object was not sufficiently stated in the title, that the tax prescribed was neither equal nor uniform, and therefore was in conflict with the Constitution. The outcome of these new notions was the Premium Bond Act of March 6, 1876, passed by the legislature at the solicitation of the municipal authorities. This act is a most remarkable piece of legislation. So far as the consolidated bonds are concerned, it amounts to little less than open repudiation of the city’s faith. It admits that the debt of the city as established by law is so large as to require for its liquidation taxation on property within its limits at the rate of at least five per cent, and yet authorizes a tax of only one and a half per cent to pay the expenses of the city government, and to meet the obligations which are offered in exchange for those bonds. It recites in its preamble that the total debt of the city, bonded and floating, exceeds $23,000,000 ; that the taxable property of the city has become so reduced in value as to require a tax at the rate of at least five per cent per annum to liquidate thewdebt; that the levying of a tax at so exorbitant a rate will render its collection impossible ; that the continuation of a tax beyond the ability of the property to pay would lead to a further destruction of the assessable property of the city and to ultimate practical bankruptcy ; and that the council of the city have adopted a plan for the liquidation of its indebtedness, looking to the payment of its creditors in full, “ obtaining thereby the indulgence necessary for the public well-being and the maintenance of the public honor.” The plan proposed was to exchange all recognized and valid bonds of the city of New Orleans, and of the cities of Jefferson and Carrollton, for bonds to be known as premium bonds of the city; the latter to be of the denomination of twenty dollars, and dated Sept. 1, 1875, each bearing five per cent interest from July 15 of that year, the interest and principal to be paid at the same time and not separately, and that time to be determined by chance in a lottery. One million of these Oct. 1881.] Louisiana v. Pilsbury. 299 bonds was to be divided into ten thousand series of one hundred bonds each. The ten thousand series were to be placed in a wheel, and, in April and October of each year, as many series were to be drawn as were to be redeemed, according to a certain schedule adopted. The bonds composing the series thus drawn were to be entered for payment three months thereafter, principal and interest, and were to be receivable for all taxes, licenses, and other obligations of the city. At the expiration of the three months the bond numbers of the drawn series were to be placed in a wheel and 1,176 prizes, amounting to $50,000, were to be drawn and distributed. Under this plan the city was to be released from payment of the principal and interest of its debt, except such portion as might be drawn in the lottery each year. Under this arrangement it would depend upon the turn of a wheel and the drawing of a fortunate number whether a creditor would be paid in one year or in fifty years. The plan completely disregards all the conditions upon which the consolidated bonds were issued, and postpones indefinitely the payment of interest and principal, or rather leaves the time of payment within fifty years to be determined by chance. The act of 1852, as we have stated, declares that the city council shall, in January of every year, pass an ordinance for the levy and collection of a special tax to be applied to the payment of the interest on the consolidated bonds and to retire the principal. The act of 1876 declares that no tax shall be levied by the city council that year or any year afterwards to pay the principal or interest on those bonds, or on any other than the premium bonds. The act of 1852 declares that all ordinances, resolutions, and acts of the city council of any year, shall be null and void, unless the ordinance imposing the special tax designated shall have been previously passed. The act of 1876 declares that all laws requiring or authorizing the city council to levy any tax for bonds or interest on bonds other than premium bonds are repealed; and, as if that was not sufficient evidence of the repudiation of former obligations, it forbids the courts to issue a mandamus to the officers of the city to levy and collect any interest tax other than for those bonds. 300 Louisiana v. Pilsbury. [Sup. Ct. To meet the interest on them and for all other purposes of the city, the act further provides that a tax of only one and one-half per cent per annum shall be levied; and this limitation of the taxing power of the corporation is “ declared to be a contract not only with the holder of said premium bonds, but also with all residents and tax-payers of said city, so as to authorize any holder of said premium bonds to legally object to any rate of taxation in excess of the rate herein limited.” If the provisions of this act nullifying the pledges of the act of 1852 are valid, the consolidated bonds are virtually destroyed ; no taxation is allowed to raise funds for them ; their payment, therefore, would be so uncertain as to render them practically valueless. The chance with premium bonds offered in their place of a favorable turn of the wheel in a lottery would be a poor substitute for the levy of an annual tax for the payment of interest and principal. We shall not waste words upon the scheme thus developed to evade the just obligations of the city. Notwithstanding' the declaration in its preamble, that the act seeks from the creditors the indulgence necessary “ for the public well-being and the maintenance of the public honor,” it is, so far as the consolidated bonds are concerned, tainted with the leprosy of repudiation. It says to the creditors : “ Take these premium bonds, and trust for payment within fifty years to your fortune in the lottery we offer; no other way is left open to obtain a possible payment. No tax can be levied for your benefit. Np compulsory writ can issue from the courts. Take these bonds or take nothing.” The primal duty of the city authorities to fulfil punctually their obligations and maintain good faith is thus proclaimed to be no duty at all. We do not deny that the power of taxation belongs exclusively to the legislative department of the government, that the extent to which it may be delegated to municipal bodies is a matter of discretion, and that in general the power may be revoked at the pleasure of the legislature. But, as we said in the case of Wolff v. New Orleans, decided at the last term, legislation revoking the power is subject to this qualification, which attends all State legislation, that it “ shall not conflict with the prohibitions of the Constitution of the United States, Oct. 1881.] Louisiana v. Pilsbury. 301 and, among other things, shall not operate directly upon contracts of the corporation, so as to impair their obligation by abrogating or lessening the means of their enforcement. Legislation producing this latter result, not indirectly as a consequence of legitimate measures taken, as will sometimes happen, but directly by operating upon those means, is prohibited by the Constitution, and must be disregarded — treated as if never enacted — by all courts recognizing the Constitution as the paramount law of the land. This doctrine has been repeatedly asserted by this court when attempts have been made to limit the power of taxation of a municipal body, upon the faith of which contracts have been made, and by means of which alone they could be performed. . . . However great the control of the legislature over the corporation while it is in existence, it must be exercised in subordination to the principle which secures the inviolability of contracts.” The case of Von Hoffman v. City of Quincy, reported in 4th Wallace, is a leading one on this subject. The court there said, “ that when a State has authorized a municipal corporation to contract, and to exercise the power of local taxation to the extent necessary to meet its engagements, the power thus given cannot be withdrawn until the contract is satisfied. The State, and the corporation, in such cases, are equally bound.” The inhibition upon the courts of the State to issue a mandamus for the levy of a tax for the payment of interest or principal of any bonds except those issued under the premiumbond plan was a clear impairment of the means for the enforcement of the contract with the holders of the consolidated bonds. When the contract was made, the writ was the usual and the only effective means to compel the city authorities to do their duty in the premises, in case of their failure to provide in other ways the required funds. There was no other complete and adequate remedy. The only ground on which a change of remedy existing when a contract was made is permissible without impairment of the contract is, that a new and adequate and efficacious remedy be substituted for that which is superseded. Here no remedy whatever is substituted for that of mandamus. 1 he holders are denied all remedy. Louisiana n. New Orleans, 102 U. S. 203-207. 302 Louisiana v. Pilsbury. [Sup. Ct. Legislation of a State thus impairing the obligation of contracts made under its authority is null and void, and the courts in enforcing the contracts will pursue the same course and apply the same remedies as though such invalid legislation had never existed. The act of March, 1876, cannot, therefore, be permitted to restrict the power of the city authorities to levy the tax stipulated by the act of 1852 to pay the interest on the consolidated bonds issued thereunder, and to retire the bonds. It follows from the views expressed that the judgment of the Supreme Court of the State of Louisiana must be reversed, and the cause be remanded to that court with instructions to reinstate the same and to remand it to the Third District Court of the Parish of Orleans, or its successor, to carry into effect the provisions of the thirty-seventh section of the act of the legislature approved Feb. 23,1852, and the fifth section of the supplementary act approved the same day, embraced in Nos. 71 and 72 of the acts of that year, as containing a valid contract between the city of New Orleans and the creditors holding the bonds issued under them; and to direct the District Court to issue a mandamus to the city of New Orleans and its authorities, annually to levy and collect the tax of $650,000 directed by the acts, and to apply the same in the following order: First, to the payment of the current interest of the year; secondly, to the payment of arrearages of interest of former years until all the arrearages are satisfied; and, thirdly, to the purchase of bonds having the shortest period to run. Judgment to this effect, and that the defendants pay the costs in this court and in the Supreme and District Courts of Louisiana, will be entered. . Oct. 1881.] Russell v. Stansell. 303 Russell v. Stansell. Where the land within a particular district was assessed for taxation, each owner being liable only for the amount wherewith he was separately charged, and the bill of complaint, filed by a number of them, praying for an injunction against the collection of the assessment, was dismissed, and they appealed here, — Held, that the several amounts cannot be united to make up the sum necessary to give this court jurisdiction. Motion to dismiss an appeal from the District Court of the United States for the Northern District of Mississippi. Mr. H. T. Ellett in support of the motion. There was no opposing counsel. * Mr. Chief Justice Waite delivered the opinion of the court. Stansell, the appellee, obtained a decree in the District Court of the United States for the Northern District of Mississippi, in June, 1879, against the Levee Board of Mississippi, District No. 1, for $71,623.67. This decree being unsatisfied, he instituted summary proceedings in the same court, under the provisions of the statute creating the levee board, to obtain an assessment and collection of the charge which was imposed on the lands in the district for its payment. On the 7th of February, 1880, the court entered an order which resulted in an assessment by commissioners appointed for that purpose. In this order it was provided that any person conceiving himself aggrieved by the action of the commissioners might, by petition to the court, present his grievance and obtain such redress as he should fairly be entitled to. On the 1st of February, 1881, D. M. Russell, W. H. Stovall, and H. P. Reid appeared, and as individuals and members of an executive committee appointed at a mass meeting of the several owners of the lands charged with the payment of the assessment, asked an injunction against the collection of the assessment that had been made, setting forth in their petition why the proceedings were illegal and unjust. The amount with which the petitioners, as individuals, were severally charged was as follows: Russell, $7.58; Stovall, $205.14; and Reid, who was assessed only as an 304 Russell v. Stansell. [Sup. Ct agent or attorney, $229.29. No single individual among all the parties represented by the committee could in any event be made liable for an amount exceeding $2,500. On the presentation of the petition the court granted a preliminary injunction, but on final hearing that injunction was dissolved and the petition dismissed. From the last order this appeal was taken, which the appellee now moves to dismiss because the amount in dispute between him and any one of the several persons charged with the payment of the assessment is less than $5,000. While the appellants, and those whom they have been chosen to represent, are all interested in the question on which their liability to the appellee depends, they are separately charged with the several amounts assessed against them. There is no joint responsibility resting on them as a body. The proceeding on his part was to require each of the several landowners in the levee district to pay his separate share of the debt that had been established against the district. The recovery was against each owner separately. While the appellants were permitted, for convenience and to save expense, to unite in a petition setting forth the grievances of which complaint was made, their object was to relieve each separate owner from the amount for which he personally, or his property, was found to be accountable. An injunction, if granted, would necessarily be to prevent the appellee from collecting from each owner the amount for which he was separately liable. It is clear that under the rulings in Paving Company v. Mulford (100 U. S. 147), Seaver v. Bigelows (f> Wall. 208), Rich v. Lambert (12 How. 347), Stratton v. Jarvis (8 Pet. 4), and Oliver v. Alexander (6 id. 143), such distinct and separate interests cannot be united for the purpose of making up the amount necessary to give us jurisdiction on appeal. Although the amount due the appellee from the levee district exceeds $5,000, his claim on the several owners of property is only for the sum assessed against them respectively. Any owner can relieve himself and his property from all further liability for the district by paying his part of the assessment. Appeal dismissed. Oct. 1881.] Supervisors v. Stanley. 305 Supervisors v. Stanley. 1. The provisions of the statute of 1866 of New York, providing for the assessment and taxation of the stockholders of a bank or banking association on the value of their shares of stock, are in conflict with the act of Congress, so far as they do not permit a stockholder of a national bank to deduct the amount of his just debts from the assessed value of his stock, while by the laws of the State the owner of all other personal taxable property can deduct such debts from its value. 2. The statute is not, however, rendered void by reason of such conflict, nor is the assessment thereunder of the chares of stock in national banks of no effect. If the stockholder has no debts to deduct, the prescribed mode of assessment is valid, and he cannot recover the tax paid pursuant thereto; if he has debts, the assessment excluding them from computation is voidable, but the assessing officers act within their authority until they are duly notified that he is entitled to deduct such debts. 3. If the assessing officers proceed after such notice, and act in violation of the act of Congress, he may take the requisite steps to secure that deduction, and, when secured, the residue of the statute remains valid. Error to the Circuit Court of the United States for the Northern District of New York. The facts are stated in the opinion of the court. Mr. Rufus JU Peckham and Mr. Wheeler H. Peckham for the plaintiffs in error. Mr. George P. Edmunds and Mr. Matthew Hale for the defendant in error. Mr. Justice Miller delivered the opinion of the court. Stanley recovered a judgment against the Board of Supervisors of the County of Albany, for taxes exacted and paid under legal process on shares of the stock of the National Albany Exchange Bank. A large number of the shareholders of the bank who had paid this tax made an assignment of their claims to him, and the judgment was for the sum of $61,991.20, with interest and costs. The ground of this recovery was that the statute of New York, under which the shares were assessed, was void, because it did not permit the shareholder to make deduction of the amount of his debts from the valuation of his shares of stock, in ascertaining the amount for which they should be taxed. VOL. XV. 20 306 Supervisors v. Stanley.' [Sup. Ct. The pleadings in the case set out the sums paid by the stockholders and their names, and their assignment to Stanley, the payment under compulsion of legal process, and a demand for the repayment on the Albany County authorities. The case was submitted to the court on a waiver of trial by jury, and on the finding of facts and conclusions of law thereon by the court, judgment was rendered for plaintiffs. The facts found by the court are thus stated: — “ First, That the allegations of the complaint in regard to the citizenship of the plaintiff, the citizenship and powers and liabilities of the defendant, the organization and capital of the National Albany Exchange Bank, the ownership of the shares of capital stock of the National Albany Exchange Bank, the assessment of the stockholders in said bank, named in said complaint, by the board of assessors of the city of Albany, the names and residences of said stockholders, the collection of taxes from said stockholders, and the payment of the same to the county treasurer of the county of Albany, and the demand made by Chauncey P. Williams, before the commencement of this action of the treasurer of the county of Albany, are true as therein set forth. “ Second, That the amounts collected from the said stockholders and paid to the treasurer of the county of Albany, and the times when the said amounts were so paid to said treasurer, were as follows, to wit: — $907 90 paid ..... 127 84 paid . . . . August 11, 1874 1,868 06 paid .... May 1, 1875 1,409 33 paid .... May 27, 1876 1,202 32 paid ..... 1,336 60 paid .... April 17, 1878 1,473 02 paid . . . . . .... April 22, 1879 11,604 75 paid .... May 1, 1875 8,147 26 paid .... May 27, 1876 7,822 34 paid .... May 3, 1877 7,357 94 paid .... April 16, 1878 6,243 20 paid . . . . . .... April 21, 1879 “ Third, That the sums above named were not paid voluntarily by said stockholders, but were forcibly collected by the Oct. 1881.] Supervisors v. Stanley. 307 marshal of the city of Albany, under a warrant issued to such marshal by the receiver of taxes of said city, pursuant to a warrant issued to said receiver of taxes by the board of supervisors of the county of Albany, by levying upon the property of the said stockholders respectively, as alleged in said complaint. “ Fourth, That the said assessments were made and said amounts collected and received by the treasurer of the county of Albany, as above stated, under color of an act of the legislature of the State of New York, entitled ‘An Act authorizing the taxation of stockholders of banks, and surplus funds of savings banks,’ passed April 23, 1866, being chapter 761 of the laws of 1866, and not otherwise. “ Fifth, That the allegations of the complaint with reference to the assignments by the respective stockholders of said bank of their claims against the county of Albany, by reason of the matters alleged in the said complaint, are true as set forth in said complaint, and that the plaintiff, at the time of the commencement of this action, was the holder and ownei' of all claims against the county of Albany, or against the defendant, arising out of the matters alleged and set forth in said complaint. “ Sixth, That the said act of the legislature of the State of New York, chapter 761 of the laws of 1866, did not permit the deduction of debts owing by the owners of stock in banks or banking associations, in the assessment thereof for taxation, although such deduction of debts of the owner was, at the time of the assessments alleged in the said complaint, permitted and required by the laws of the State of New York to be made from the value of every kind of personal property and moneyed capital, other than bank stock, in assessing the same for the purpose of taxation. “ Seventh, That the allegations in the fourth count of said complaint, as to the presentation to the said board of assessors by said Chauncey P. Williams of the affidavit of his indebtedness, and the request by him for a reduction of his assessment on his bank stock, and the refusal of said board of assessors to make such reduction, and the application by said Williams to the Supreme Court of the State of New York for a writ of 308 Supervisors v. Stanley. [Sup. Ct. mandamus, and the subsequent legal proceedings thereon, including the decision of the Supreme Court of the United States, are true, as set forth in said fourth count.” It does not appear by this finding of the court that any shareholder, for whose payment of taxes this suit is brought, made affidavit or other application in regard to his indebtedness, that it might be deducted from his assessment, or that he owed anything to be deducted from the assessed value of his shares, ex-cept the seventh finding of facts in regard to C. P. Williams. Unless, therefore, the other shareholders who paid the tax on the shares of their stock were entitled to recover back the sum paid without any evidence that they had made affidavit of the amount which they would be entitled to deduct from the assessment of their shares, if the same rule had been applied to assessment of bank shares as to other personal property, and without any evidence that they owed anything whatever to be deducted from any assessment of their personal property, including bank shares, the judgment in this case cannot be supported. The judge who decided the case on the circuit found as a conclusion of law that the assessment of all shares of national banks was void, because the statute of New York, under which the assessments were necessarily made, was void, as being in conflict with the act of Congress on that subject, and he declares, in an opinion delivered in the case of The National Albany Exchange Bank v. Hills, Receiver of Taxes, in a chancery suit, that the assessments in this class of cases are absolutely void, the assessors having acted without any jurisdiction. If this view of the subject be sound,—if the officers who assessed and collected this tax were utterly without authority to collect any tax whatever, or, if there was no law by which in any case they could assess and collect a tax on shares of national banks, — then it is of no consequence to inquire of anything beyond the fact that plaintiff’s assignors did pay such a tax under legal compulsion. On the other hand, if the law is for any p rpose a valid law, and if it can be held to furnish the rule of taxation as to any class of owners of national bank shares, then the onus is on plaintiff to show that his assignors are not of that class. Oct. 1881.] Supervisors v. Stanley. 309 The question here to be decided arises under two statutes of the State of New York in regard to taxation. The first of these is the act of 1850, relating to the assessment and collection of taxes in the city of Albany. The sixth section of the act requires the board of assessors to prepare an assessment-roll, in which there shall be set opposite the name of each taxpayer, (1) All his real estate liable to taxation and its value ; (2) The full value of all his personal property after deducting the just debts owing by him. Section 9 of the act is as follows : — “ If any person shall at any time before the assessors shall have completed their assessments make affidavit that the value of his real estate does not exceed a certain sum, to be specified in such affidavit, or that the value of the personal estate owned by him, after deducting his just debts, and his property invested in the stock of any corporation or association liable to be taxed therefor, does not exceed a certain sum, to be specified in the affidavit, it shall be the duty of the board of assessors to value such real or personal estate, or both, as the case may be, at the sum specified in such affidavit, and no more.” In 1866 the State enacted a law concerning the taxation of bank shares, which was evidently intended to meet the requirements of the act of Congress in relation to State taxation of the shares of national banks, and the provision of this statute related only to taxing stockholders in banks, and to the capital invested in individual banks. The first section of this act reads as follows, and it contains no other provision for deductions as the basis of taxation, except what is found in this section-: — “No tax shall hereafter be assessed upon the capital of any bank or banking association organized under the authority of this State or of the United States, but the stockholders in such banks and banking associations shall be assessed and taxed on the value of their shares of stock therein; said shares shall be included in the valuation of the personal property of such stockholder in the assessment of taxes at the place, town, or ward where such bank or banking association is located, and not elsewhere ; whether the said stockholder reside in said place, town, or ward, or not, but not at a greater rate than is assessed upon other moneyed capital in 310 Supervisors v. Stanley. [Sup. Ct. the hands of individuals in this State. And in making such assessment there shall also be deducted from the value of such shares such sum as is in the same proportion to such value as is the assessed value of the real estate of the bank or banking association, and in which any portion of their capital is invested in which said shares are held to the whole amount of the capital stock of said bank or banking association. And providedfurther, that nothing herein contained shall be held or construed to exempt from taxation the real estate held or owned by such bank or banking association ; but the same shall be subject to State, county, municipal, and other taxation to the same extent and rate and in the same manner as other real estate is taxed.” In the case of People v. Dolan (36 N. Y. 59), the question was whether, taking these two statutes together, an owner of shares of stock in a national bank was entitled to deduct from the assessed value of his shares the just debts owing by him. It was argued that into this act of 1866 for the taxation of bank shares there should enter, as part of it, the provision of the act of 1850 which allowed this deduction as to all personal property, and that nothing in the act of 1866 forbade this or was inconsistent with it. It was also insisted that unless the act of 1866 was so construed it would violate the act of Congress which only permitted the shares of national banks to be taxed at the same rate as other money capital of the citizens of the State. But the Court of Appeals overruled both propositions, and held that the true meaning of the act of 1866 was that no such deduction should be made, and that as thus construed it vas not in conflict with the act of Congress on that subject. In a subsequent case, Williams, a shareholder in the National Albany Exchange Bank, made the afiidavit required by sect. 9 of the act of 1850, and presenting it to the board of assessors of the county, demanded a reduction in accordance with it, from the valuation of his bank shares. On the refusal of the assessors to comply with this request, a proceeding was commenced in the courts of the State, in which the Court of Appeals reaffirmed the principles of the case of People v. Dolan. That case coming into this court by writ of error, it was here held that while we were bound to accept the decision of the Oct. 1881.] Supervisors v. Stanley. 311 highest court of the State in construction of its own statute the act of 1866 as thus construed was in that particular in conflict with the act of Congress, because it did tax shares of the national banks at a higher rate than other moneyed capital in the State. It is reported in 100 U. S. 539, and there are no words which declare the act of 1866 to be void, but the careful language of the decision is, that “ in refusing to plaintiff the same deduction for debts due by him from his shares of national bank stock that it allows to others who have moneyed capital otherwise invested, it is in conflict with the act of Congress.” p. 546. Accepting, therefore, as we must, the act of 1866, as construed by the Court of Appeals of New York, as not authorizing any deduction for debts by a shareholder of a national bank, is it for that reason absolutely void ? This cannot be true in its full sense, for there is no reason why it should not remain the law as to banks or banking associations organized under the laws of the State, or as to private bankers, of which there no doubt exists a large number of both classes. What is there to render it void as to a shareholder in a national bank, who owes no debts which he can deduct from the assessed value of his shares ? The denial of this right does not affect him. He pays the same amount of tax that he would if the law gave him the right of deduction. He would be in no better condition if the law expressly authorized him to make the deduction. What legal interest has he in a question which only affects others ? Why should he invoke the protection of the act of Congress in a case where he has no rights to protect? Is a court to sit and decide abstract questions of law in which the parties before it show no interest, and which, if decided either way, affect no right of theirs ? It would seem that if the act remains a valid rule of assessment for shares of State banks, and for individual bankers, it should also remain the rule for shareholders of national banks who have no debts to deduct, and who could not, therefore, deduct anything if the statute conformed to the requirements of the act of Congress. It is very difficult to conceive why the act of the legislature should be held void any further than when it affects some 312 Supervisors v. Stanley. [Sup. Ct. right conferred by the act of Congress. If no such right exists, the delicate duty of declaring by this court that an act of State legislation is void, is an assumption of authority uncalled for by the merits of the case, and unnecessary to the assertion of the rights of any party to the suit. The general proposition must be conceded, that in a statute which contains invalid or unconstitutional provisions, that which is unaffected by these provisions, or which can stand without them, must remain. If the valid and invalid are capable of separation, only the latter are to be disregarded. In Railroad Companies v. Schutte (103 U. S. 118), decided at the last term, this point was pressed upon us with much earnestness, and its decision was necessary to the judgment of the court. “ It is contended,” said the court, “ that as the provision of the act in respect to the execution and exchange of the State bonds is unconstitutional, the one in relation to the statutory lien on the property of the company is also void and must fall. We do not so understand the law.” And yet this was a case in which the scheme of exchanging the bonds of the State for the bonds of the company, in order that the company might get the benefit of the better credit of the State, was accompanied by a mortgage created alone by the statute in favor of the State as her security; and the court, while holding that the exchange of bonds was void, as being in conflict with the Constitution of the State of Florida, held that the mortgage which secured the bonds of the company, and which was only a mortgage by operation of the same statute, was valid. This court, in the two cases cited in the brief, United States v. Reese (92 id. 214) and Trade-Mark Cases (100 id. 82), concedes the general principle that the whole of a statute is not necessarily void because a part of it may be so. Said the court in the latter case: “ While it may be true that when one part of the statute is valid and constitutional, and another part is unconstitutional and void, the court may enforce the valid part where they are distinctly separable, so that each may stand alone, it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear.” The first case also implies that Oct. 1881.] . Supervisors v. Stanley. 313 there may be unconstitutional provisions which do not vitiate the whole statute or even a single section, because the argument is to show that in that case there could be no separation of the good from the bad. It is also to be observed that in both these cases it 'was a statute creating and punishing offences criminally which was to be construed in regard to the limited constitutional power of Congress in criminal matters. Case of the State Freight Tax (15 Wall. 232) arose out of a statute of Pennsylvania which attempted to impose a tax on commerce forbidden by the Constitution of the United States. The act imposed a tax upon every ton of freight carried by every railroad company, steamboat company, and canal company doing business within the State. The railroad companies, who contested the tax, presented a statement which separated the freight transported by them between points solely within the State and limited to such destination, and that which was received from or carried beyond those limits. This court held the latter to be void as a tax on inter-state commerce, and did not declare the whole tax or the whole statute void. It said: “ It is not the purpose of the law, but its effect, which we are now considering. Nor is it at all material that the tax is levied upon all freight, as well that which is wholly internal as that embarked in inter-state commerce. ... The conclusion of the whole is that, in our opinion, the act of the legislature of Pennsylvania of Aug. 25,1864, so far as it applies to articles carried through the State, or articles taken up in the State and carried out of it, or articles taken up without the State and brought into it, is unconstitutional and void.,J The same language is repeated in Erie Railway Co. v. Pennsylvania (id. 282), decided at the same time. Both cases were remanded to the State court for further proceedings in conformity with the opinion, which could only mean to enforce the tax on transportation limited to the State and not on inter-state commerce. This is a clear case of distinguishing between the articles protected by the Constitution of the United States and those which were not, though nothing in the language of the statute authorized any such distinction. But in a review of the cases in this court on this subject, Austin v. The Aidermen (fl Wall. 694) will be found most 314 Supervisors v. Stanley. . [Sup. Ct. nearly to resemble the one before us. It related to the same matter of the invalidity of a statute of a State taxing shares of the national banks as being in conflict with the act of Congress. That act said that such taxes might be assessed at the place where said bank was located, and not elsewhere. The statute directed the assessment and taxation of the shares at the place where the owner resided. Austin, having contested the tax on his shares in the courts of the State unsuccessfully, brought the case here by writ of error. This court declined to enter upon the question of the validity of the statute, because the case did not show that he was taxed on his shares in any other place than that where the bank was located. The argument of counsel in the case before us is that any tax, or a tax on any person on account of his bank shares, is void because the whole of the New York statute is void. If the argument is sound, it was equally applicable to Austin’s case, in which the statute, which made no limitation of taxation to the place where the bank was located, must have been held void under any principle which would wholly invalidate the statute of New York, because the latter did not allow the deduction of the owner’s indebtedness from his shares. And if in that case the Massachusetts statute was utterly void as to national bank shares, then the tax on Austin’s shares in Boston was void, and he had a right to be protected against the unconstitutional statute. The court evidently went upon the principle that the statute was only void as against the act of Congress, in cases where some one was injured by the particular matter in which there was such conflict. The case seems to us directly in point. To the same effect are the cases of People v. Cassity, 46 N. Y. 46; Gordon v. Comes, 47 id. 608; In the Matter, ^c., Village of Middleton, 82 id. 196. If we examine the statute before us on principle, we shall find but little reason to hold it to be wholly void as regards bank shares. If the statute stood alone, there is nothing in it in conflict with the act of Congress. It is only when we look to the other statute, which permits the deduction of debts from the entire value of personal property, that we discern the dis Oct. 1881.] Supervisors v. Stanley. 315 crimination against bank shares. The act declares that bank shares shall be taxed according to their value, after deducting the real estate and other property on which the bank itself pays tax. This is eminently just. It provides for a mode of ascertaining their value, the officers who shall do it, and how the tax shall be collected. In all this the law is valid, except that it does not authorize a deduction for debts of the shareholder. This is a distinct and separable principle. When the shareholder has no debts to deduct, the law provides a mode of assessment for him, which is not in conflict with the act of Congress, and the law in that case can be held valid. Under the decision in Austin v. The Aidermen, it is valid as to him. If he has debts to be deducted, the case of People v. Weaver (100 U. S. 539) shows that in taking the steps which this court has held he may take, he can secure that deduction, and when secured the rest of the law remains valid. In other words, in such a case, so much of the law as conflicts with the act of Congress in the given case is held invalid, and that part of the State law which is in accord with the act of Congress is held to be the measure of his liability. There is no difficulty here in drawing the line between those cases to which the statute does not apply and to those to which it does, between the cases in which it violates the act of Congress and those in which it does not. There is, therefore, no necessity of holding the statute void as to all taxation of national bank shares, when the cases in which it is invalid can be readily ascertained on presentation of the facts. It follows that the assessors were not without authority to assess national bank shares ; that where no debts of the owners existed to be deducted the assessment was valid, and the tax paid under it a valid tax. That in cases where there did exist such indebtedness, which ought to be deducted, the assessment was voidable but not void. The assessing officers acted within their authority in such cases until they were notified in some proper manner that the shareholder owed just debts which he was entitled to have deducted. If they then proceeded in disregard of the act of Congress, the assessment was erroneous, and the case of People v. Weaver (supra) shows how that error could be corrected. 316 Supervisors v. Stanley. [Sup. Ct. The case before us shows no error in any case but that of Williams, and in that case he has obtained the judicial decision of this court, that the tax he paid was illegally exacted from him. Nor do the facts of his case raise the question whether in a case where the debts of the shareholder do not equal the assessors’ value of his shares, the tax is wholly erroneous, or only so much as represent the assessment of his indebtedness that should have been deducted, for his affidavit was that his debts equalled the value of his bank shares. Nor do the findings of fact raisethe question whether, without making affidavit and demand on the.assessors, a suit can be maintained to recover, when such indebtedness actually existed; for he did make affidavit and demand, and no other taxpayer has shown any such notice or demand, or that he had any indebtedness to be deducted. There is neither finding of fact nor averment in the pleadings on either point as to any other assignors of plaintiff than Williams. It results from these considerations that the judgment of the Circuit Court will be reversed, and that on the finding of facts judgment will be rendered for the plaintiff on the fourth count for the amount of the tax paid by Williams, with interest, and on all the other counts for defendants. It is so ordered. Mr. Justice Bradley dissented. Mr. Justice Miller delivered, at a subsequent day of the term, the further opinion of the court. Since the opinion in this case was delivered a suggestion has been made to modify the order of the court for judgment so far as to permit a trial in the Circuit Court on issues not decided by that court in the former trial. The conclusions of law found by the Circuit Court, if sound, disposed of the whole case, and the facts found were sufficient to meet that view. As our opinion differed in one important point from that on which the Circuit Court acted, it became a question whether the facts found were still sufficient to dispose of the whole case. In a bill of exceptions, signed by the judge and found in the Oct 1881.] Supervisors v. Stanley. 817 record, it is said: “ There was evidence given in the case upon the subject of other allegations contained in the complaint, but the court did not pass upon such allegations, as the following admission and the decision of the court herein duly show.” Then follows a stipulation, signed by counsel for each party, that the case was decided solely upon the invalidity of the New York statute, and that other allegations contained in the complaint had not been passed on. Under these circumstances we should have little difficulty in directing the court below to grant a new hearing as to such issues, if we could find in the record any material issue in regard to which the court made no finding. Attention has been called to the following language, which is a part of each count in the complaint: — “ And the plaintiff also says, upon information and belief, that the assessment of said shares of stock in said banking association by said board of assessors was at a greater rate than was assessed by said board of assessors upon shares of stock in a bank organized under the laws of the State of New York, located in said sixth ward, and was at a greater rate than was assessed by said board upon other moneyed capital in the hands of individual citizens of the State of New York, and that for these reasons said assessment of said shares of stock, and the levy of tax thereunder, were illegal and void.” If this is a sufficient allegation of a distinct ground of recovery, it seems just that the plaintiff should have a hearing on it, as the defendant took issue on it and it has not been disposed of. We have, however, much difficulty in finding a solid ground of recovery in this statement. It is divisible into two parts: 1. That the shares of the national bank were assessed at a greater rate than was assessed on shares of a bank organized under the laws of the State of New York, located in said sixth ward. We are quite clear that the shares of the plaintiff are not relieved from taxation because a single bank of the State has been favored by mistake or by intention. For errors of this kind the statutes of New York provide the correction, which should be taken in time, and we should 318 Supervisors v. Stanley. [Sup. Ct. be very reluctant to hold that, when it has been shown that a single bank or a single individual has been taxed less than he should be, all other taxes, however just, are thereby invalidated. That the assessment of the shares of the Exchange Bank “ was.at a greater rate than was assessed upon other moneyed capital in the hands of individual citizens of the State of New York.’’ If by this it is supposed that a few individual instances may be shown of partial assessments favoring citizens as compared with the national banks, we think it is erroneous. But if it is intended to allege that apart from the question of the right of the shareholder to deduct for his debts — a question which, in this case, was disposed of and was in issue — it can be proved that the assessors habitually and intentionally, or by some rule prescribed by themselves, or by some one whom they were bound to obey, assessed the shares of the national banks higher in proportion to their actual value than other moneyed capital generally, then there is ground for recovery, and a hearing as to that should be granted. As we have said, it may be well doubted if plaintiff intended to allege this, or to rely on proving it. v But as it is a question of pleading under the New York code, and as no injustice can occur by leaving the matter to the court below, the judgment will be so far modified as to permit the court below, in its discretion, to hear evidence on that point, and, if necessary, to allow an amendment of the pleading to present it properly; and it is So ordered. Oct. 1881.] Hills v. Exchange Bank. 319 Hills v. Exchange Bank. 1. Supervisors v. Stanley {supra, p. 305) cited and approved. 2. A national bank may, on behalf of its stockholders, maintain a suit to enjoin the collection of a tax which has been unlawfully assessed on their shares by the State authorities. 3. Where, under the statute of New York, such stockholder has presented to the proper board of assessors his affidavit, by showing that his personal property subject to taxation, including such shares after deducting therefrom his just debts, is of no value, and they refuse on his demand to reduce the assessment of the shares, an injunction should be awarded to restrain them from collecting the tax. 4. Where, in a suit by the bank, it is entirely clear from the proofs that all affidavits and demands of the other stockholders for a deduction from the assessed value of their respective shares, by reason of just debts which they owe, would, for purposes of taxation, be disregarded, and the assessors have evinced a fixed purpose to reject every such deduction, this court, in reversing the case, permits an amendment of the pleadings to allow each stockholder to show the amount of the deduction to which he is entitled. Appeal from the Circuit Court of the United. States for the Northern District of New York. The facts are stated in the opinion of the court. Mr. Rufus W. Peckham and Mr. Wheeler H. Peckham for the appellants. Mr. Wager Swayne and Mr. Julien T. Davies for the appellee. Me. Justice Miller delivered the opinion of the court. This appeal presents very much the same questions that were decided in Supervisors v. Stanley, supra, p. 305. That was a common-law action to recover for taxes unlawfully exacted for years prior to 1879 on shares of the National Albany Exchange Bank. The present suit to enjoin the appellants from collecting a similar tax assessed and yet unpaid for that year, was brought by that bank, suing in right of and as representing all the stockholders. The Circuit Court made a decree perpetually enjoining the collection of all taxes on shares of the bank. Several questions are raised, or rather suggested, which we think have heretofore been decided by this court, such as the right of the bank to maintain a suit on behalf of its shareholders. This was established by the cases of Cummings y. National Bank, 101 U. S. 153 ; Pelton y. National Bank, id. 320 Hills v. Exchange Bank. [Sup. Ct. 143. There is, also, an attempt to show that there was a settled rule or purpose on the part of the assessors to value the shares of the appellee bank higher in proportion to their real value than in the case of other banks, bankers, and moneyed corporations. We think the proof fails to establish this in a manner to justify the interference of a court of equity. National Bank v. Kimball, 103 id. 732. The bill, however, in its main feature, asserts the right to an injunction, on the ground that the act of 1866, under which the bank shares were assessed, is absolutely void because it makes no provision for deduction from the assessed value of these shares, of the debts honestly owing by the shareholders. And the court, proceeding upon the idea that both the statute and the assessment made under it are absolutely void, decreed relief accordingly.. Under the ruling just made on that subject this decree must of course be reversed, because as to the larger number of the shareholders whose taxes are enjoined there is no evidence that they owed any debts whatever at the time the assessment was made. The allegations of the bill on this subject are: First, That one shareholder owning five hundred and thirty-two shares of the stock made affidavit that the value of personal estate owned by him, including said bank shares, after deducting his just debts and other investments not taxable, did not exceed one dollar, and presented said affidavit to the board of assessors, with a demand that they should reduce the assessment of his shares accordingly, which was refused. The evidence shows this to have been Chauncey P. Williams. Second, That other shareholders were indebted to an amount equal to or in excess of the personal property owned by them, including their bank shares, but omitted to make affidavit and demand the proper reduction, because they knew such demand would be refused by the board, both from information of their refusal in other cases, and from knowledge of the decisions of the Court of Appeals of New York that they had no authority to make such deduction. This allegation is also supported by the evidence of four or five shareholders who are represented in this action. While the decree of the court enjoining the collecting officers as to all the tax assessed on the shares of this bank must be Oct. 1881.] Hills v. Exchange Bank. 321 reversed, the question arises, what shall be done with the cases in which it appears that there are shareholders taxed who owed just debts entitled to deduction. With regard to the case of Williams, we have no doubt that there should be an injunction to the amount of his tax. He made the requisite affidavit and the proper demand for deduction, and his affidavit shows that no assessment should be made on his shares. He has not yet paid the money, and is entitled to relief by injunction. A more difficult question is presented in regard to those who made no affidavit or demand for deduction, but who have shown that they would have been entitled to deduction if the demand had been properly made. That question is, whether the fact clearly established that their demand would have been unavailing, dispensed with the necessity of making the affidavit and demand. It is a general rule that when the tender of performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary, when it is reasonably certain that the offer will be refused, — that payment or performance will not be accepted. Such is the doctrine established by this court in repeated decisions in regard to another branch of the law concerning the collection of taxes. Bennett v. Hunter, 9 Wall. 326 ; Tacey v. Irwin, 18 id. 549; Atwood v. Weems, 99 U. S. 183. Without elaborating the matter we are of opinion that, considering the decision of the Court of Appeals of New York, the action of the assessors in the case of Williams, and their own testimony in this case, it is entirely clear that all affidavits and demands for deduction which could or might have been made would have been disregarded and unavailing, and that the assessors had a fixed purpose, generally known to all persons interested, that no deductions for debts would be made in the valuation of bank shares for taxation. It is, therefore, not now essential to show such an offer when it is established that there were debts to be deducted and when the matter is still in fieri, the tax being unpaid. And we are of opinion that it is open to the court below when this case returns to permit such amendment of the pleadings as will enable the complainant to make proper allegations on that subject, or by reference to a VOL. XV. 21 322 Evansville Bank v. Britton. [Sup. Ct. master to allow each shareholder to establish the amount of deduction to which he was entitled at the time of the assessment, and to enjoin the collection of a corresponding part of the tax. But as the assessment is not void, but only voidable, it must stand good for all of the assessment in each case which is not shown to be in excess of the just debts of the shareholder that should be deducted. Decree reversed,, and cause remanded for farther proceedings in accordance with this opinion. Evansville Bank v. Britton. Britton v. Evansville Bank. 1. The taxation of national bank shares by the statute of Indiana, without permitting the owner of them to deduct from their assessed value the amount of his bona fide indebtedness, as he may in the case of other investments of moneyed, capital, is a discrimination forbidden by the act of Congress. 2. Supervisors v. Stanley (supra, p. 805) and Hills n. Exchange Bank (supra, p. 319) cited, and the rulings there made approved. 3. The points of difference between the New York statute there considered, and the Indiana statute applicable to this case pointed out. Appeals from the Circuit Court of the United States, for the District of Indiana. The facts are stated in the opinion of the court. The case was argued by Mr. Asa Iglehart and Mr. Thomas A. Hendricks for the bank, and by Mr, Jacob 8. Buchanan and Mr. Benjamin Harrison for Britton. Mr. Justice Miller delivered the opinion of the court. These are cross-appeals from a decree rendered in a suit in chancery, in which the Evansville National Bank was complainant, and Britton, as treasurer of Vanderburgh County, Indiana, was defendant. The case is in all essential points analogous to that of Hills v. Exchange Bank, supra, p. 319, just decided. The principal question of law is the same as that discussed Oct. 1881.] Evansville Bank v. Britton. 323 and decided in Supervisors v. Stanley, supra, p. 305. In fact, the three cases were advanced out of their order, and heard consecutively, because they involved important questions concerning taxation by State statutes of the shares of national banks; and the argument, able and exhaustive throughout, has been almost wholly directed, on the part of the banks, to establish the proposition that, where the law of the State either makes or permits a discrimination operating only against a particular class of holders of national bank shares, in the manner of assessing those shares as regards other moneyed capital in the State, all the laws for such assessments are void, and all such assessments are absolutely void, and no tax on national bank shares can be collected in the State. The brief of counsel in this case in various forms repeats the idea that the bill was brought, not so much to assert the rights of stockholders who may have been injured by the enforcement of the statute, as to obtain a judicial declaration of this court that the act is void, and the attempt to tax the shares of the bank equally so. Having, in Supervisors v. Stanley, rejected this proposition, and given our reasons for it, we shall not repeat them here. The objection made to the Indiana statute is the same as that made against the New York statute ; namely, that it permits the taxpayer to deduct from the sum of his credits, money at interest, or other demands, the amount of his bona fide indebtedness, leaving the remainder as the sum to be taxed, while it denies the same right of deduction from the cash value of bank shares. A distinction is attempted to be drawn between the Indiana statute and the New York statute, because the former permitted the deduction of the taxpayer’s indebtedness to be made from the valuation of his personal property, while in Indiana he can only deduct it from his credits. And undoubtedly there is such a difference in the laws of the two States. But if one of them is more directly in conflict with the act of Congress than the other, it is the Indiana statute. In its schedule the subject of taxation from which the taxpayer may deduct his bona fide indebtedness is placed under two heads, as follows : — 324 Evansville Bank v. Britton. [Sup. Ct. “ 1. Credits or money at interest, either within or without the State, at par value. “ 2. All other demands against persons or bodies corporate, either within or without this State. “ Total amount of all credits.” The act of Congress does not make the tax on personal property the measure of the tax on bank shares in the State, but the tax on moneyed capital in the hands of the individual citizens. Credits, money loaned at interest, and demands against persons or corporations are more purely representative of moneyed capital than personal property, so far as they can be said to differ. Undoubtedly there may be much personal property exempt from taxation without giving bank shares a right to similar exemption, because personal property is not necessarily moneyed capital. But the rights, credits, demands, and money at interest mentioned in the Indiana statute, from which bona fide debts may be deducted, all mean moneyed capital invested in that way. It is unnecessary to repeat the argument in People v. Weaver (100 U. S. 539) on this point. We are of opinion that the taxation of bank shares by the Indiana statute, without permitting the shareholder to deduct from their assessed value the amount of his bona fide indebtedness, as in the case of other investments of moneyed capital, is a discrimination forbidden by the act of Congress. There is in the bill of complaint in this case the usual allegation, apart from the special matters we have just considered, that the assessing officers habitually and intentionally assess the shares of the national banks higher in proportion to their actual value than other property generally, and especially shares in other corporations. It is denied in the answer, and unsupported by proof. It is also alleged that the bank is taxed a considerable sum for its real estate, and that in assessing the value of the shares no deduction is made on that account. The positive testimony of the assessor shows that such deduction was made. It is alleged that the capital of the bank is almost entirely invested in the bonds and treasury notes of the United States, and the shares only represent this untaxable investment. Van Oct. 1881.] Evansville Bank v. Britton. 325 Allen v. The Assessors (3 Wall. 573) settles the principle that under certain limitations the shares of the national banks are taxable with exclusive reference to their value and without regard to the nature of the property held by the bank as a corporation. The very point here made was expressly overruled, in that case. Acting upon these principles the Circuit Court decreed a perpetual injunction as to those shareholders who had proved in the case that at the time of the assessment they owed debts which should rightfully have been deducted. These were four in number, and the appeal of the collector, Britton, is from this injunction. The decree in that respect was right, and must be Affirmed. The bank appeals from that part of the decree which dismissed the bill as to all the other shares. This was because no evidence was given that any other shareholders except the four above referred to owed any debts which could have been deducted from the value of the shares. In the case of Hills v. Exchange Bank we authorized the court on return of the case to permit the bank to show what shareholders had such indebtedness in some appropriate form. It is not necessary to consider whether this case ought to be reversed at the instance of the bank to enable that to be done now, for it is stated by the counsel of the bank in their printed brief that the offer was made to them to have a reference to a master to take testimony on this point .before final decree, and they declined to accept the privilege. That branch of the decree is, on the appeal of the bank, Affirmed. Mr. Chief Justice Waite, Mr. Justice Bradley, and Mr. Justice Gray dissented. Mr. Chief Justice Waite, with whom concurred Mr. Justice Gray. I cannot agree to so much of the judgment in this case as affirms that part of the decree below appealed from by Britton, the treasurer. “ Credits ” are but 326 Evansville Bank v. Britton. [Sup. Ct. one of a number of kinds of moneyed capital. They represent, in the classification of taxable property, the ordinary debts due to a person ; and it has been common for so long a time in the States to measure their taxable value by their excess over like debts owing to the same person in the same right, that I cannot believe it was the intention of Congress in its limitation on the power of taxing national bank shares to require a deduction of debts from the value of shares, when such a deduction was only allowed to other persons from this one kind of moneyed capital. The law of Indiana expressly prohibits deductions from the value of any other property than credits. Ample provision is made for the taxation of all other moneyed capital at its value without deduction, the same as national bank shares. In Hepburn v. The School Directors (23 Wall. 480) this court said “it could not have been the intention of Congress to exempt bank shares from taxation because some moneyed capital was exempt.” In that case, a tax on bank shares was sustained when, by law, mortgages, judgments, recognizances, and moneys owing on articles of agreement for the sale of lands were not taxable. I am unable to distinguish this case in principle from that. The exemption here is partial only, as it was there. Mr. Justice Beadle'S. I dissent from the judgment of the court in these and the two preceding cases, for the reason that, in my opinion, the State laws authorizing the capital stock of national banks to be taxed, without allowing any deduction for the debts of the stockholders, where such deduction is allowed in relation to other moneyed capital, are void in toto so far as relates to national banks. To hold the laws valid except as to those who are actually indebted, and actually claim the benefit of the deduction, and actually set it up in a suit brought by the bank for relief, is practically to render the condition of the act of Congress nugatory, and to deprive of its protection the national banks and their stockholders. The tax though laid on the stockholders is required to be paid by the bank itself, which must pay without deduction unless the shareholders give the bank notice of the amount of their debts. This is a most ingenious expedient to avoid such deductions altogether. The Oct. 1881.] Evansville Bank v. Britton. 327 probability that not one in ten of the shareholders will ever have notice of the assessment in time to make the claim, and the natural reluctance they would have (if they had notice) to lay the amount of their debts before a board of bank officers, will effectually secure the State from claims for deduction. And that was, no doubt, the object of the law. But this unequal operation of it, in its practical effect, might not be sufficient to render it void. It is void, in my judgment, because it makes no exception, but is general in its terms, subjecting to taxation the capital stock of national banks without the privilege of deducting debts. Denying to it operation and effect as to those who desire to claim the benefit of the deduction, and giving it effect as to all others, is to tear a portion of the law out by the roots. It is not like the case where a portion of a law, which may be separated from the rest, can be declared invalid without affecting the remainder of the law ; nor like the case of a general law which the legislature has power to make, but from the operation of which some individuals may have a legal or constitutional exemption, which they can plead in their defence^; but it is wrong in form, wrong in toto. The legislature had no authority or power to make the capital of national banks taxable except in the same manner as other moneyed capital of the State. The practical iniquity of the law is seen in this, that it affects the value of all the stock, whoever holds it. As the law stands, it acts as a prohibition against the purchase of the stock by those who owe debts, and they constitute a considerable portion of every community. It does not help the validity of the law for us to declare that it is pro tanto void, and, in fact, make a new law for the State. Its validity must be decided by its actual form and terms. If these cannot stand, the law is void. 328 Insurance Co. v. Bruce. [Sup. Ct. Insurance Company v. Bruce. 1. Where a city having by statute authority to make an unconditional subscription to the stock of a railroad company, and to deliver its bonds in advance of the construction of the road, issued them, representing in effect by their recitals that they conformed to the statutory requirements, and that its liability thereon was complete, — Held, that the bonds are valid in the hands of a bona fide holder for value, and that the city is estopped from showing that it had imposed certain conditions upon its liability, although the statute declares that in such an event the bonds should not be binding until such conditions were performed. 2. Town of Eagle v. Kohn (84 Ill. 292) commented upon and distinguished. Error to the Circuit Court of the United States for the Northern District of Illinois. The facts are stated in the opinion of the court. The case was argued by Mr. Henry Hazlehurst for the plaintiff in error, and by Mr. Philip Phillips for the defendant in error. Mr. Justice Harlan delivered the opinion of the court. This action involves the liability of the town of Bruce, in the State of Illinois, upon sundry interest coupons, attached to bonds, in the ordinary form of negotiable municipal bonds. On the first day of December, 1870, they were delivered by the constituted authorities of the town to the Plymouth, Kankakee, and Pacific Railroad Company in payment of a subscription to the capital stock of the Kankakee and Illinois River Railroad Company. The latter company, after organization, became consolidated with the former, and hence the delivery to the consolidated company. The bonds upon their face recite that they are “ issued by virtue of the law of the State of Illinois, entitled ‘ An Act to incorporate the Kankakee and Illinois River Railroad Company,’ approved April 15,1869, and ‘An Act to fund and provide for paying railroad debts of counties, townships, cities, and towns, in force April 16, 1869; ’ and we, the supervisor and town clerk of the township of Bruce, do hereby certify that a special election was held in said township on the seventh day of September, 1869, at which special election a majority of the legal voters, participating at the same, voted ‘ for subscription ’ to the capital stock of the Kankakee and Illinois River Railroad Company in the sum of $25,000, Oct. 1881.] Insurance Co. v. Bruce. 329 and to issue bonds of said township therefor; and said special election was by the proper authorities then and there duly declared carried ‘ for subscription,’ and that all the other requirements of the law in relation to said special election were duly complied with.” The act of April 15, 18,69, is the charter of the railroad company. By the sixteenth section thereof it is made the duty of the supervisor or clerk of any town or township, declaring by a majority of its voters in favor of subscription to the capital stock of the railroad company, to make the subscription, receive the proper certificates, and execute bonds therefor, which shall be delivered to the president or secretary of said railroad company for the use of said company, and shall be a pledge upon the revenue of said territories respectively. Sess. Laws Ill., 1869, vol. iii. p. 1. The coupons in suit, before their maturity, to wit, on the 19th June, 1871, together with the bonds to which they are severally attached, were purchased by the American Life Insurance Company, the plaintiff in error, from one Alexander Whillden, the lawful and bona fide holder thereof, for the sum of 89,500 cash in hand paid. Neither Whillden nor the insurance company had any notice, at the time, of any irregularity, invalidity, or informality in the making, issuing, or delivery of the bonds. It is not seriously disputed, either in the pleadings or in argument, that the acts of assembly referred to in the bonds gave ample authority for subscription by the town to the capital stock of the Kankakee and Illinois River Railroad Company, to be paid for in bonds of the town, provided a majority of legal voters, at an election previously called and held for that purpose, expressed their approval of such subscription and its payment in that mode. But the contention of the town is: 1st, That by the seventh section of the act of April 16, 1869, it is provided that “ any county, township, city, or town shall have the right, when making any subscription or donation to any railroad company, to prescribe the conditions upon which such bonds and subscriptions or donations shall be made, and such bonds, subscriptions, or donations shall not be valid and binding until such conditions precedent 330 Insurance Co. v. Bruce. [Sup. Ct. shall have been complied with: ” 2d, That, in pursuance of the authority thus given, the town voted to make a subscription of $25,000, to be paid for in bonds, subject to the following conditions, distinctly set forth in the notice under which the election was held, and assented to by the railroad company, viz.: that the road be so constructed as to pass through the town, making Streater a point in a northwesterly direction, towards Bureau Junction; that a depot be located and maintained in the town of Bruce; that the bonds be delivered in sums of $1,000 for every mile of road graded, as the work progresses, and $1,000 for every mile of ties laid, and the balance when the road-bed is ready for the iron ; and that no further calls or assessments shall be made upon the town or upon the subscription to stock over the .amount aforesaid; provided, nevertheless, that the subscription be void and of no effect unless an agreement by the railroad company for said iron and rolling-stock with responsible parties shall be made on or before one year from the day of the election, and the railroad company shall have formed satisfactory arrangements to connect said railroad with some eastern terminus : 3d, That the conditions thus prescribed have never been complied with in these respects; more than one year elapsed after the election and yet no agreement had been made on or before Sept. 7, 1870, by the original or consolidated company, with any party for the iron or the rolling-stock of the railroad; the road was never so constructed as to pass through the town of Bruce; it was not constructed when the bonds were issued, and has never been constructed at any time since ; no depot has ever been located or maintained in the town ; the ties were never laid for any one mile of the railroad within the town; and no part of the railroad for the line of railroad of the Kankakee and Illinois River Railroad Company, or of the original line of the original Plymouth, Kankakee, and Pacific Railroad, has ever been constructed. These facts are set out in detail in the special plea of the town. Do they constitute a defence against a bona fide holder, for value, of the bonds and their coupons ? Or to state the question more distinctly, can the town, aftet the bonds have been signed, sealed, and delivered by its constituted Oct. 1881.] Insurance Co. v. Bruce. 331 authorities to the railroad company, and have passed into the hands of bona fide holders for value, escape liability by showing that the conditions or some of them imposed by popular vote have not been complied with upon the part of the railroad company ? The statute did not make it obligatory on the town to impose conditions upon the performance of which its liability should depend. It conferred simply the right to do so, leaving the town at liberty to prescribe conditions or to make an unconditional subscription. Consistently with the statute the town could issue and deliver bonds for the subscription in advance of the construction of any part of the road. But when conditions were prescribed, good faith, and the obligations which everywhere arise out of negotiable securities, required — if the town intended to rely upon them — that the public, who were expected to buy the bonds or to advance money upon them, should be informed by their recitals that the town had exercised its statutory right to impose conditions upon its liability. The officers both of the town and the railroad company knew, however, that bonds could not have been negotiated in the market had their recitals disclosed the fact that payment depended upon conditions thereafter to be fulfilled by the railroad corporation. To the end, therefore, that money might be raised for the construction of the proposed road, or in reliance upon the performance by the railroad company of the conditions imposed, the constituted authorities of the town, and the officers or agents of the company, co-operated in putting out bonds negotiable in form and with recitals that gave no intimation even that the subscription was conditional. The fact that conditions had been prescribed was omitted in recitals, full of everything necessary to induce the public to buy the bonds. The statement, on the face of the bonds, that they were issued by virtue of the statutes of April 15, 1869, and April 16, 1869, — the first of which contains an absolute requirement that the bonds be issued and delivered upon the subscription being voted, while the second gives the right, but does not make it imperative, to impose conditions, — and the further statement that the people had voted for subscription and to issue township bonds therefor, fairly imported that nothing 332 Insurance Co. v. Bruce. [Sup. Ct. remained to be done in order to make the bonds binding obligations upon the town in the hands of bona fide purchasers. Under these circumstances, the town, by every principle of justice, is estopped, as against a bona fide holder, to plead conditions, the existence of which was withheld from the public, either to facilitate the negotiation of the bonds in the markets of the country, or because it had full confidence that the railroad company would meet the prescribed conditions. It should not now be heard to make a defence inconsistent with the representations contained in the recitals upon its bonds, or upon the ground that the conditions imposed, of which purchasers had no notice, have not been performed. But this conclusion, it is contended, is in the face of the express declaration in the act of April 16, 1869, that subscriptions or donations made and bonds issued, upon conditions, “ shall not be valid and binding until such conditions precedent shall have been complied with.” And in support of that contention counsel cite Town of Eagle v. Kohn (84 Ill. 292), in which case one of the justices dissented and another did not sit. That case involved the liability of the town of Eagle upon certain coupons of bonds issued to the same railroad company. The defence was there, as here, non-compliance with certain conditions which had been attached by popular vote to the subscription. The court, construing that act, held that there was no want of’power to make the subscription and issue bonds; that, if the town so willed, the subscription could be made and bonds issued in advance of the compliance with any condition imposed by the popular vote; that, aside from the statute, innocent purchasers for value would enjoy the protection accorded to bona fide holders of negotiable paper, and would not be affected by non-compliance with such conditions; that such holders could not be required to take notice of the conditions or of any resolution relating to them upon the records of the railroad company ; but that, in view of the express provision of the statute that the bonds should not be “ valid and binding until such conditions precedent shall have been complied with,” non-compliance therewith is a good defence, even against purchasers in good faith for value. The decision in that case was made Oct. 1881.] Insurance Co. v. Bruce. 333 several years after the bonds had been put on the market, but being a construction of a local statute, it is insisted that the Federal court is bound to accept it as controlling in the present case. We waive discussion as to the soundness of the conclusion reached by the State court, or any extended examination of the authorities bearing upon the general question whether the Federal court is concluded by the construction given by the State court to a local statute, under which rights have accrued to citizens of other States before that construction was given. We do this because the present case is distinguishable from Town of Eagle v. Kohn in this, that it does not appear, from the report of the latter case, that the town had, by the recitals in its bonds, estopped itself from asserting, as against a bona fide holder, the non-performance of conditions imposed by popular vote. Had the town of Eagle represented, in express words, upon the face of the bonds, that no conditions whatever were prescribed by the people, or that the subscription was unconditional, the State court would not, we suppose, adjudge that the town, as against a bona fide holder, could take shelter behind the statutory provision in question. In the present case, the town of Bruce did not make, in express terms, a representation of that character. But, in effect, by the recitals in its bonds, it did represent to the public that the bonds were issued in all respects in conformity to law, and that nothing remained to be done which was essential to its liability thereon. The town having power, under the statute, to make an unconditional subscription, and to issue and deliver its bonds in advance of the construction of the road, what was said in Brooklyn v. Insurance Company (99 U. S. 362) may be repeated here: “ It is now too late for the town to claim exemption, as against bona fide purchasers, upon the ground that the railroad company disregarded its promise to construct the road, or upon the ground that its own officers delivered the bonds in violation of special conditions, of which the purchasers had no knowledge or notice, either from the statute or otherwise.” Judgment reversed, with directions for further proceedings in conformity with this opinion. Mr. Justice Matthews and Mr. Justice Gray did not sit in this case, nor take any part in deciding it. 334 Sullivan v. Burnett. [Sup. Ct. Sullivan v. Burnett. 1. By the laws of Missouri in force in 1866 an alien was capable of taking by descent lands in that State, and of holding and alienating them, if he either resided in the United States, and, by taking the oath prescribed by the act of Congress, had declared his intention to become a citizen, or resided in Missouri, although the ancestor through whom he claimed was, at the time the descent was cast, an alien, who, by reason of his non-residence, was incapable of inheriting. 2. The statute of 1855, which gave to a non-resident alien the right within a limited period to sell and convey the lands whereof the intestate died seized, applied only where at the time of his death there was no person capable of taking them by descent. 3 The statute of March 30, 1872 (infra, p. 336), has no retrospective operation. Error to the Circuit Court of the United States -for the Eastern District of Missouri. This action, under the local law equivalent to an action of ejectment, involves the title to certain real estate in the city of St. Louis, of which Edward Sullivan, a naturalized citizen of the United States, who died intestate in the year 1866, was seized in fee at the time of his death. Both parties claimed under him. The court below specially found that Emily Sullivan, one of the plaintiffs, was his sister, and that Jeremiah Sullivan, the other plaintiff, was a son of his deceased brother. It was admitted on the trial that the plaintiffs were .then, and always had been, non-resident aliens, and that neither had made a declaration of intention to become a citizen of the United States. The court below held that under the laws of Missouri in force at the death of Edward Sullivan, the plaintiffs were incapable of acquiring the real estate in dispute, especially as there were several aliens resident in this country who had declared their intention to become citizens, and also a resident alien in Missouri, to whom the real estate would descend subject to the limitations mentioned in those laws. Under the foregoing view of the case, the court found it unnecessary to pass upon the other facts and questions of law presented by the defendants. Oct. 1881.] Sullivan v. Burnett. 335 Judgment was rendered for the defendants, and the plaintiffs sued out this writ. The remaining facts are stated in the opinion of the court, and the statutes therein mentioned are as follows: — “General Statutes of Missouri, 1865. Title XXVIII. Chapter 110. “ Sect. 1. All aliens residing in the United States, who shall have made a declaration of their intention to become citizens of the United States, by taking the oath required by law, and all aliens, residents of this State, shall be capable of acquiring real estate in this State, by descent or purchase, and of holding and alienating the same, and shall incur the like duties and liabilities in relation thereto, as if they were citizens of the United States. “ Sect. 2. It shall be lawful for every alien, who, except for his alienage, would be capable of acquiring real estate by devise or descent from any person thereafter dying, capable of holding, at the time of his death, real estate in this State, to sell and convey, in the manner provided by law for the conveyance of real estate, any real estate which he may acquire by virtue of this section, to any other person capable of holding real estate by virtue of the laws of this State; and such sale and conveyance, when executed and delivered in the manner provided, shall have the effect to pass all the title to any real estate which such alien may have acquired to the same, by descent or devise. “ Sect. 3. All such sales and conveyances shall be null and void, unless made in good faith within three years next after the final settlement of the estate of the ancestor or devisor: Provided, that if such real estate be in litigation between such alien and any other person, then such real estate, or so much thereof as shall have been in litigation, shall be sold and conveyed within three years after the termination of such litigation. “Chapter 129, id. “ OF descents and distributions. “Sect. 1. When any person having title to any real estate of inheritance, or personal estate undisposed of, or otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary, to his kindred, male and female, subject to the payment of his debts and the widow’s dower, 336 Sullivan v. Burnett. [Sup. Ct. in the following course : First, to his children or their descendants in equal parts ; second, if there be no children or their descendants, then to his father, mother, brothers, and sisters and their descendants in equal parts; third, if there be no children or their descendants, father, mother, brother, or sister, nor their descendants, then to the husband or wife ; if there be no husband or wife, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts ; fourth, if there be no children or their descendants, father, mother, brother, sister, or their descendants, husband or wife, grandfather, grandmother, uncles, aunts, nor their descendants, then to the great-grandfathers, great-grandmothers and their descendants in equal parts; and so on in other cases without end, passing to the nearest lineal ancestors and their children and their descendants in equal parts.” « Sect. 8. In making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate is, or has been, an alien. “Act of March 30, 1872. “Sect. 1. Aliens shall be capable of acquiring, by purchase, devise, or descent, real estate in this State, and of holding, devising, or alienating the same, and shall incur the like duties and liabilities in relation thereto as if they were citizens of the United States, and residents of this State. “Sect. 2. Any female born in the United States, owning real estate or any interest therein in this State, who shall marry an alien and reside in a foreign country, may,- at any time, notwithstanding such marriage or residence, convey such real estate, or any interest therein, by deed, or may at any time devise the same by last will: Provided, the same be done in either case in conformity with the general laws of this State concerning the conveyance of real estate by deed and the making of wills. “ Sect. 3. Chapter one hundred and ten of title twenty-eight of the General Statutes of Missouri, being chapter five of Wagner’s Missouri Statutes, and an act entitled * An Act to amend chapter one hundred and ten of title twenty-eight of the General Statutes concerning real property and its alienation,’ approved March 13, 1867, are hereby repealed. “ Sect. 4. This act shall take effect on the fourth day of March, in the year eighteen hundred and seventy-two.” Oct. 1881.] Sullivan v. Burnett. 337 Mr. Leroy B. Valliant and Mr. Willoughby A-. Smith for the plaintiffs in error. Mr. Gustavus A. Finkelnburg for the defendants in error. Mr. Justice Harlan delivered the opinion of the court. At the death of the intestate, as well as at the commencement of this action, the plaintiffs — his sister and the son of his deceased brother — were residents of Ireland and subjects of the United Kingdom of Great Britain and Ireland. The defendants, it is sufficient to say, hold whatever title passed to a female lunatic, foreign born and a first cousin of the intestate, residing, at his death, in Maryland, but who, so far as the record discloses, never made a declaration of her intention to become a citizen of the United States ; also, whatever title passed to the children of Annie Murta and Mary Murta, foreign-born first cousins, who, like the plaintiffs, resided, at his death, in Ireland, and were subjects of the United Kingdom of Great Britain and Ireland. But their children, also foreign born, were, at his death, naturalized citizens of the United States, one of them a resident of the State of Missouri. The controlling question relates to the claim of the plaintiffs to an interest in the property in controversy. The statutes to which, as bearing upon the case, our attention has been called, are chapter 110 of the Revised Statutes of Missouri, 1865, sections 1 and 8 of chapter 129 of the same revision, and an act of the General Assembly of that State, approved March 30, 1872. The first section of chapter 110 is a reproduction of statutory provisions which had been in force from a very early period after the admission of Missouri into the Union. Rev. Stat. Mo., 1825, p. 126; id. 1835, p. 66 ; Rev. Code of Mo., 1845, p. 113. It conferred upon two classes of aliens the same capacity of acquiring by descent or purchase real estate in Missouri, and of holding and alienating it, as is enjoyed by citizens of the United States, — those residing in this country who had made a declaration of intention to become citizens of the United States, by taking the required oath, and those, whether they had made such declaration or not, who resided in that State. Aliens not belonging to one o o vol. xv. 22 338 Sullivan v. Burnett. [Sup. Ct. . or the other of those classes were left subject to the operation of the common-law rule — recognized as in force in Missouri — that an alien, for the want of inheritable blood, could not take land by descent. Wacker v. Wacker, 26 Mo. 426; 2 Bl. Com., 249; Orr v. Hodgson, 4 Wheat. 453. The second and third sections, as to their substantial provisions, are brought forward from an act approved Feb. 22, 1855, which declares it to be “ lawful for every alien who, except for his alienage, would be entitled to any real estate by devise or inheritance from any person hereafter dying, capable at the time of his death of holding real estate situate in this State, to legally sell, for his own use, and convey the title thereof to any person capable of holding real estate situate within this State: Provided, he make such sale and conveyance within three years next after the death of him from whom he shall claim such devise or inheritance.” When the minor is an alien, his guardian is authorized to make such sale and conveyance. Sess. Laws Mo., 1855, p. 4. It is quite clear that, upon the death of Edward Sullivan, neither of the plaintiffs took by descent any interest in his real estate, for the reason suggested by the very words of the statute, and fortified by the policy which dictated its enactment, that they were and are alien non-residents of the United States. This construction must be adopted, unless the object of the act of 1855 was, for purposes of descent, to obliterate all distinction between aliens residing in, and those residing out of, the United States. But no such interpretation is admissible, especially in view of the fact that the statute of 1855, upon this general subject, as well as that enacted previously thereto, was embodied in the same chapter of the general revision of 1865. The section declaring it lawful for an alien to sell and convey, within a prescribed time, to one capable of holding, real estate which, except for his alienage, he would have been capable of acquiring by devise or descent, has reference to cases not embraced by the first section of chapter 110; that is, to cases in which the property would vest at once in the State for the want of some person who could, at common law or under the statute, inherit. Aliens of the class described in the first section of chapter 110 could not Oct 1881.] Sullivan v. Burnett. 839 inherit at common law, but by statute they were permitted to take by descent or purchase, holding, or selling and conveying, as it suited their convenience to do the one or the other. In all those respects, aliens embraced by that section were placed upon the same footing of equality with citizens of the United States. But to an alien who did not have capacity to inherit by virtue of residence in Missouri, or of residence in the United States accompanied by a formal declaration, under oath, of intention to become a citizen, the right was given by the act of 1855, continued and enlarged in section 2 of chapter 110 (not to inherit and hold, as a native or naturalized citizen could, but), to take and sell and convey to one who could hold. Until the law of 1855 was enacted, the right of the State to take the real estate of one who left no person in existence capable of acquiring it, by descent, accrued immediately upon the death of the owner. Impelled by a sense of justice, or to meet the hardships of cases likely to arise in a new State receiving large accessions to its population from Europe, Missouri, as a partial waiver or suspension of its rights, and for no other purpose, declared by the act of 1855 that an alien who did not reside in Missouri, or in this country with an intention to become a citizen of the United States, and who could not, therefore, inherit, might, within a limited period, sell and convey to one who could take and hold. That statute, plainly, had no reference to those aliens upon whom had already been conferred, by statute, the capacity to inherit and hold, or to sell and convey, in the same manner as citizens of the United States. But the contention of counsel for the plaintiffs is, that the-children of Annie and Mary Murta could not take this prop-erty, nor any interest in it, because their alien non-resident mothers, through whom they traced relationship to the deceased, were alive at his death ; and since the parents were incapable of taking, for the reasons we have given, their children could not take. Upon the basis of that conclusion, counsel advance to the further proposition, that, if neither the plaintiffs nor the Murta children could take by descent, the property upon the death of the intestate escheated to the State, and the right of the plaintiffs to take as the nearest of kin was subsequently rec 340 Sullivan v. Burnett. [Sup. Ct. ognized and established by the first section of the act of March 30, 1872. Although that statute was enacted within three years after the final settlement of Edward Sullivan’s estate, and although its object was, undoubtedly, to remove the disabilities of aliens of every class, whether resident or non-resident, to acquire real estate in Missouri by purchase, descent, or devise, we are of opinion that neither of the propositions just stated can be successfully maintained. The Murta children, we have seen, were naturalized citizens of the United States, one of them being also a resident of Missouri. At the time descent was cast they were the nearest of kin of the class of aliens who, by the first section of chapter 110, were capable of acquiring real estate in Missouri by descent or purchase. Their right to take by descent was not, as we think, affected by the fact that their respective mothers were, when the intestate died, alive, and alien non-residents of this country, incapable themselves of inheriting the estate. The eighth section of the chapter (129) on descents and distributions declares that “ in making title by descent it shall be no bar to a demandant that any ancestor through whom he derives his descent from the estate is or has been an alien.” This language would seem to embrace as well the case of one whose alien progenitor, through whom is traced relationship to the intestate, was living when descent was cast, as the case where such progenitor was then dead. This view is controverted by the plaintiffs, on the authority of Creery's Lessee v. Somerville (9 Wheat. 354), where this court had occasion to determine the meaning of the statute of 11 & 12 William III. c. 6, which, it is claimed, is, upon the present point, identical with the foregoing section in the Missouri statute of descents and distribution. It was there ruled that the English statute (in force in Maryland, from which State the case came) removed the common-law disability to claim title through an alien ancestor, but did not apply to a living alien ancestor, so as to create a title by heirship, where none would exist by the common law if the ancestor were a natural-born subject. We remark, in reference to that case, that the English statute is not accurately quoted in the opinion of the court, as an examination of 10 British Stat, at Large, 319 Oct. 1881.] Sullivan v. Burnett. 341 (Pickering’s ed.), will show. But without deciding that the words omitted ought to have produced a judgment different from that rendered, we are of opinion that the present case is not governed by McCreery's Lesseev. Somerville. The statute of Missouri which permits the demandant to inherit from an intestate, notwithstanding his ancestor, through whom he derives his descent, is or has been an alien, must be interpreted with reference as well to other provisions conferring upon aliens the capacity to inherit real estate, as to the public policy which manifestly induced such legislation. These provisions, in terms, make an alien resident in Missouri, or an alien resident elsewhere in this country, intending to become a citizen, capable of inheriting real estate by descent or purchase. In making title by descent it may be that his ancestor is or was an alien, without inheritable blood, either at common law or by statute. That fact would ordinarily constitute an insuperable difficulty in the way of his taking or holding the estate. But the statute elsewhere interposes in his behalf, and says that he shall not be barred in tracing his descent from the intestate, by reason of the fact that any ancestor either is or has been an alien, — language broad enough, as we have suggested, to include a living as well as a dead progenitor. Unless the statute be so construed, it would result that, while an alien residing in Missouri, having no purpose to become a citizen of the United States, could, under the then existing law, if the nearest of kin, inherit and hold as fully as if he were a citizen of the United States, a naturalized citizen, actually residing in Missouri, would be barred from taking and holding by the fact— wholly unimportant in view of the policy of the State — that his parent or ancestor, through whom he must trace relationship to the intestate, was', when descent was cast, alive and an alien non-resident of the country, or a resident of the United States, outside of Missouri, with no intention to become a citizen. We are not satisfied that such an interpretation of the statute would be consistent with the intention of the legislature, and we therefore reject it as unsound. But should we be in error in this construction, there is 842 Ottawa v. National Bank. [Sup. Ct. another ground upon which the claim of the plaintiffs must be denied. We have ruled that, when descent was cast, neither.of the plaintiffs had capacity to inherit, and if, as contended, the Murta children were also barred by the fact that their respective alien mothers were then living, it would result, as counsel concede, that the property escheated to the State immediately upon the death of Edward Sullivan. This upon the ground that the legal title could not be in abeyance. 2 Fearne, 20. In that contingency, neither the plaintiffs nor the defendants could claim any interest in the property, by virtue of the act of 1872. Tire Constitution of Missouri forbids the General Assembly from passing any law retrospective in its operation. Art. 1, sect. 28. And if that inhibition does not prevent the State from releasing, under the authority of a statute and for the benefit of individuals, any right of property it may have acquired by escheat, it is sufficient to say that the act of 1872 contains no language clearly indicating an intention to make it retrospective. It is, consequently, applicable alone to future acquisitions by aliens of real estate in Missouri. Judgment affirmed. Ottawa v. National Bank. 1. Hackett v. Ottawa (99 U. S. 86) cited, and the doctrines therein set forth reaffirmed. 2. Municipal bonds in Illinois, payable to a person therein named or bearer, are transferable by delivery without indorsement, and the holder may sue in his own name to recover their contents. 3. Where, without express legislative authority, they are payable at a place in another State, quaere, What law should govern in determining the rights of the holder who claims them by delivery only. Error to the Circuit Court of the United States for the Northern District of Illinois. The facts are stated in the opinion of the court. Mr. C. B. Lawrence for the plaintiff in error. Mr. Ci. S. Eldredge for the defendant in error. Oct. 1881.] Ottawa v. National Bank. 343 Mb. Justice Hablan delivered the opinion of the court. The bonds in suit constitute a portion of the issue of $60,000 referred to in Hackett v. Ottawa, 99 U. S. 86. Like those held by Hackett, they were purchased before maturity, and without notice of any circumstances or facts impeaching their validity. As in that case, so here, the bonds recite that they are issued in virtue of the power conferred by the charter of the city, upon its council, — the majority of voters, attending at an election for that purpose, assenting, — to borrow money on its credit and to issue bonds, pledging its revenue for the payment thereof; and also, in pursuance of two ordinances of the city council, one, passed June 15, 1869, entitled “ An Ordinance to provide for a loan for municipal purposes,” duly ratified by popular vote, and the other, entitled “ An Ordinance to carry into effect the ordinance of June 15, 1869, entitled ‘An Ordinance to provide for.a loan for municipal purposes.’” The defence in the Hackett case was, that the bonds were not issued to effect a loan for municipal purposes, but were issued and delivered as a donation to one Cushman or to the Ottawa Manufacturing Company, a private corporation, to be used in aid of a merely private enterprise, and not for legitimate municipal purposes. Upon that ground, it was contended that they were void for the want of authority to issue them. Waiving any direct decision of the question, much elaborated by counsel, as to what, under the Constitution of the State, as interpreted by the Supreme Court of Illinois in numerous cases, is to be regarded as a municipal or corporate purpose, for which the city can lawfully exercise the power of borrowing money and issuing bonds, we there adjudged the defence to be insufficient, for these reasons: The city council had power, the voters consenting, to issue negotiable securities for certain municipal purposes; if the purchaser, under some circumstances, would have been bound to take notice of the provisions of the ordinances whose titles were recited in the bonds, he was relieved from any responsibility or duty in that regard by reason of the representation, upon the face of the bonds, that the ordinances provided for a loan for municipal purposes ; such a representation, by the constituted authorities of 344 Ottawa v. National Bank. [Sup. Ct. the city, would naturally avert suspicion of bad faith upon their part, and induce purchasers to omit an examination of the ordinances themselves; and, consequently, the city was estopped, as against a bona fide holder for value, to say that the bonds were not issued for legitimate or proper municipal or corporate purposes. Upon these grounds, the main defence in this suit must, also, be adjudged insufficient. There is, however, one question raised in this case which was not made or determined in Hackett v. Ottawa. The bonds in suit are made payable at the St. Nicholas National Bank in the city of New York to W. H. W. Cushman or bearer, and, without his written assignment or indorsement, were taken by the First National Bank of Portsmouth, New Hampshire, the defendant in error. The city paid the interest maturing on the second days of August, 1870 and 1871. The contention of counsel is that an assignment or indorsement of the bonds by the payee named therein, although they are also made payable to bearer, is, by the laws of Illinois, where the original contract was made, a prerequisite to pass the legal title, and to authorize a suit by the holder in his own name. This precise question arose in Roberts v. Bolles (101 U. S. 119), involving the validity of certain municipal bonds, payable to a railroad company or bearer, and on which there appeared no assignment or indorsement by the company. Upon examination of the decisions of the Supreme Court of Illinois, we there reached the conclusion that, by the repeated adjudications of that learned tribunal, municipal bonds payable to bearer, or to some named person or bearer, were excepted from the rule announced in Hilborn v. Artus (4 Ill. 344) and Roosa v. Grist (17 id. 450), in which it was, in effect, held that notes payable to a person or bearer could not be transferred or assigned by delivery only, so as to authorize the holder to sue in his own name. Counsel in the present case insist that our ruling in Roberts v. Bolles resulted from a misapprehension of the settled course of decisions in the State court; and we are asked to reconsider the question in connection with some cases in that court to which our attention was not then- called. Those specially relied on to establish the error of our conclusion in that case are Oct. 1881.] Ottawa v. National Bank. 345 Garvin v. Wiswell, 83 Ill. 215, and Turner v. Peoria $ Springfield Railroad Co., 95 id. 134. The first of those cases related to a county order executed by a board of supervisors, directing the treasurer of the county, on a day named, to “ pay to John Murphy or bearer ” a certain sum “ out of the funds appropriated for bounties to volunteers, with interest at the rate of eight per cent per annum from this date, upon the presentation of the annexed coupons,” — an instrument of writing not negotiable, in the sense of the law merchant, so as to exclude defences or evidence of invalidity, even when held by a bona fide purchaser. Wall v. County of Monroe, 103 U. S. 74. The case in 95 111. relates to a certificate of indebtedness issued by a receiver appointed in a suit against a railroad company, and which certificate, the State court expressly held, did not possess the qualities of negotiable or commercial paper. It also appears, in that case, that the certificate was made payable to a named person “ or bearer,” when the order of court, printed thereon, directed it to be made payable to such person “ or "order.” The language of those two cases must be construed in connection with the particular kind of instrument to which the court referred. While in each may be found general statements which seem to justify the position of counsel, we do not understand those cases to determine anything necessarily inconsistent with the conclusion reached in Roberts v. Bolles, viz. that by the law of Illinois municipal bonds, whether payable to bearer, or to some person or bearer, are negotiable by delivery, so that the holder, even in the courts of Illinois, can sue thereon in his own name, although they have not been previously assigned or indorsed by the named payee. Notwithstanding the criticism by counsel of the opinion in Johnson v. County of Stark (24 Ill. 75), we are not satisfied that the Supreme Court of Illinois has intended, in any subsequent case, to qualify what was there said by Walker, J., in leference to municipal bonds and coupons issued to railroad companies: “ It seems to be the well-settled doctrine that State, county, city, and other bonds and public securities of this character are negotiable by delivery only, without in 346 Ottawa v. National Bank. [Sup. Ct. dorsement, in the same manner as bank-bills, especially when they are payable to bearer.” In that case, the coupon was not payable either to order or to bearer, but the promise was to pay the amount named “ on this coupon.” The court ruled that the holder of the coupon could sue and recover in his own name. The bonds in suit, it will be observed, are payable at a bank in New York. According to the general rules of commercial law, as recognized in that State, the holder of negotiable securities, payable to a named person or bearer, whether they are indorsed or not by such payee, acquires, by delivery merely, the legal title, and the consequent right to sue thereon in his own name. 3 Kent, Com. 78; Brush v. Administrators of Reeves, 3 Johns. (N. Y.) 439 ; Dean v. Hall, 17 Wend. (N. Y.) 214. Whether the nature and extent of the rights acquired by the bank are determinable by the law of New York, the place of performance, or whether the general rule that a contract is to be expounded by the law of the place where it is to be executed (6 Pet. 200; 13 id. 77; 1 How. 169), can be applied to an Illinois municipal corporation whose bonds, without express legislative authority, have been made payable elsewhere than at «its own treasury (19 Ill. 406; 22 id. 151 ; 24 id. 91; 31 id. 531; 68 id. 535), are questions which need not be now determined. It is sufficient in this case to say that the ground first alluded to, upon which the plaintiff denies the right of the bank, the holder for value of its bonds, to sue in its own name, cannot be maintained. Judgment affirmed. Oct. 1881.] Manchester v. Ericsson. 347 Manchester v. Ericsson. It is error to withdraw from the jury the determination of a disputed fact in issue. So held, where, in a suit against a city for damages sustained by a party who fell at night from a causeway erected within the city limits by an incorporated bridge company, but which was not provided with a proper guard or protection, although it extended from the company’s bridge to the level of a street, the question of fact as to whether the city had treated the causeway as a street, and assumed such a control of the locus in quo as to incur a liability for its condition, was withdrawn from the jury, and the court instructed them that if the injury was caused by the absence of such a guard or protection the city was liable. Error to the Circuit Court of the United States for the Eastern District of Virginia. The facts are stated in the opinion of the court. Mr. Christopher C. McRae and Mr. William A. Maury for the plaintiff in error. Mr. Charles V. Meredith and Mr. Greorge K. Macon for the defendant in error. Mr. Justice Miller delivered the opinion of the court. Ericsson recovered a judgment against the city of Manchester, Virginia, for injuries received by a fall from a'public way, of which the city had been negligent, in regard to protecting the sides of a high embankment. The laws of the State authorize a recovery in such a case. The chief controversy on the trial was whether the city or a bridge company was responsible for the condition of the stieet in such a manner as to incur liability for negligence in the care of it. That part of it where the accident occurred constituted also the approach to a bridge across the James River, between Manchester and Richmond, and both the bridge and this approach to it had been built, at least nominally, by an incorporated company called the James River Bridge Company, and the contention of the defendant below was that this corporation, and not the city, was the responsible party. That point was much' pressed in argument before us, and it seemed to be assumed that if the company was liable, the city 348 Manchester v. Ericsson. [Sup. Ct. was not. We do not think that this necessarily follows, for the company may be liable for negligence in regard to the locus in quo as an approach to and part of their bridge, while the city may also be liable for like negligence regarding it as a street for the care of which it is responsible. The question in this case is whether the city is liable. This depends, in our opinion, not so much on the question whether the place where the injury occurred was, by law, placed under the exclusive control of the city, as whether the city authorities had so far assumed the care of it as one of the streets of the town as to incur an obligation to be diligent and watchful in the performance of that duty. The judge, in his charge to the jury, attached much importance to the fact that the bridge was built by money advanced by Richmond and Manchester, and assumed that the company was a mere matter of form, and though chartered by the legislature, was only an agency of the two municipal corporations to connect them by a bridge spanning the river which runs between them. We are not satisfied of the soundness of this view, though it appears that the two cities owned all the stock and advanced the money. It still remains that the compan'y was the legal entity which owned the bridge; that if it had borrowed money, or created debts, the cities would not have been liable for them without an express agreement to that effect. And if the negligence by which plaintiff suffered was solely the negligence of the bridge company and its officers, the city of Manchester would not have been liable because of the stock held by it in the company or the money advanced to it. But testimony was submitted to the jury tending to show that after the bridge and this approach to it had been built, or commenced, the limits of the city of Manchester had been extended so as to include this part of the bridge or approach, and that the city did work on it as a street, or extension of the street into which it ran, and in many ways assumed such control of it as it did of other streets. This testimony is in the record, and was proper evidence to sustain the proposition that the city authorities had so acted in regard to this part of the highways of the city as to make it Oct. 1881.] Manchester v. Ericsson. 349 responsible for a more careful attention to the dangerous condition of it than was given by them. The counsel of defendant prayed several instructions in regard to the sufficiency of this evidence, which was refused by the court, and instead of those asked it gave the following: — “ There are three questions for the jury, namely: — “ 1st, Whether a proper guard or protection had been provided at the point where the accident to the plaintiff occurred; if there was not — “ 2d, Whether the accident was in consequence of the absence of such proper guard or protection ; and, “ 3d, If so, whether damage ensued to the plaintiff, and what amount of money shall be allowed as the measure of damage to him. “ If the jury believe from the evidence that a proper guard or protection to the highway was not provided, that the accident occurred in consequence, and that damage ensued to the plaintiff from the accident, then the court instructs the jury that the city of Manchester is liable for the damage, unless it proves that the plaintiff sustained his injury through his own negligence or want of care.” It will be seen that the court here takes from the jury entirely the question whether the city was responsible for the want of the guard or protection which was absent, and instructs them peremptorily that if such protection was wanting, and the accident was caused by its absence, the city was liable. We think it was for the jury to decide whether the city had made itself responsible. The evidence on this subject had been properly submitted to the jury. Whether the city had assumed such control of the locus in quo as to make it responsible was an inference of fact to be drawn from all the testimony by the jury, and not a question of law for the court. This evidence consisted of various things done by order of the authorities of the city of Manchester, such as paying the money on condemnation of the land for the use of the bridge, regulating the grade of the approach to the bridge and of the neighboring streets, continuing the pavement of the* street into and upon this approach, depositing cinders on it, building 350 Insurance Co. v. Foley. [Sup Ct. a fence on the side of it, and otherwise expending money on it. In our opinion, though strongly persuasive of the proposition that the city had assumed charge of the place, the evidence was not necessarily conclusive. The inference was one of fact and not of law, and was to be made, if at all, by the jury, under such proper instructions on the matter as the court should give, and not by the court alone. It was a mixed question of law and fact, proper for the jury, aided by the court. For this error the judgment of the Circuit Court will be reversed, and the case remanded with instructions to set aside the verdict and grant a new trial ; and it is So ordered. Insurance Company v. Foley. 1. When sued upon a life policy, the company set up that in applying for it the insured did not make true answers to questions touching his habits. The evidence in regard to them was conflicting. The court refused to charge the jury that when “witnesses testify, from their qwn knowledge of the party and his habits, that he was not of temperate habits, their testimony is entitled to greater consideration by a jury than witnesses who testify otherwise, because they have not seen or known of such habits as are testified to by those who declare that he was not a person of temperate habits.” Held, that the refusal was proper. 2. If the habits of the insured in the usual, ordinary, and every-day routine of his life were temperate, his representations that he was and always had been a man of temperate habits were not untrue, within the meaning of the policy, although he may have had an attack of delirium tremens from an exceptional over-indulgence. Error to the Circuit Court of the United States for the District of South Carolina. In January, 1872, Foley obtained from the Knickerbocker Life Insurance Company of the city of New York a policy of insurance for $5,000, on the life of one Badenhop, his debtor to that amount. The premium required at the time and the stipulated annual premiums were paid. The profits arising upon them entitled the assured, in May, 1873, to a further insurance on the life of his debtor, to the amount of $36.03; Oct. 1881] Insurance Co. v. Foley. 351 and in June, 1874, to the amount of $39.36; and policies for these sums were issued to him. Badenhop died in January, 1875; but the assured, being ignorant of the fact, paid the next annual premium. The present action, to recover the amount of the policies and of the premium overpaid, with interest, was commenced in a court of the State, and, upon application of the company, removed to the Circuit Court of the United, States. The complaint alleges the issue of the policies, the interest in them of the plaintiff, the death of Badenhop, the proof thereof furnished to the company, the fulfilment by the plaintiff and the deceased of “all the conditions ” of the policies, the amount due, and its non-payment. It also alleges the payment of the annual premium after the death of the insured. A copy of the policies is annexed to the complaint. The first policy declares that it is issued upon the express condition that the application on file in the office of the company is an express warranty of the truth of the answers and statements contained in it, and that, if they are in any respect untrue, the policy is to be void and of no effect to any one. The additional policies declare that they are subject to the same conditions as the first. In its answer the company sets up, among other things, as a defence, that the plaintiff and the insured did not make true and correct answers and statements to certain questions contained in the application for the first policy, in this, that to the questions, “Is the party of temperate habits? Has he always been so?” the answers given were “Yes,” — when, in fact, he was a man of intemperate habits, thus concealing by the answer his true habits, and making a false statement concerning them ; whereby the policy became void. On the point thus raised, whether the answers given as to the habits of the insured were true or false, the testimony offered was conflicting. On the part of the company, one witness'testified that in 1871 and in the early part of 1872 he was the family physician of Badenhop; that at that time Badenhop was drinking hard; that during that year he had attended him for delirium tremens, and once or twice for indisposition, produced, “ as he thought,” from the excessive use of intoxicating drink; and that he “ regarded ” him as a man of 352 Insurance Co. v. Foley. . [Sup. Ct. intemperate habits. But, on his cross-examination, he admitted that he did not know Badenhop intimately, had no relations with him other than professional, and saw him only when he attended him professionally, or met him occasionally in the street. Two other witnesses testified for the company, — one, that he was intimate with Badenhop; the other, that he had known him for several years, and that he was a very intemperate man; that they had frequently seen him under the influence of liquor; but neither of them stated when his acquaintance commenced, whether before or after the policy was issued. On the part of the plaintiff several witnesses were called, who had known Badenhop intimately for many years, their acquaintance with him commencing before the policy was issued and continuing afterwards, and one of whom had been his partner in 1869 and 1870; and they all testified unqualifiedly to his being a man of temperate habits. The defendant requested the court, among other things, to instruct the jury, “ That where, in a question whether the party assured is one of temperate habits at the time when he seeks to be insured, and has always been so, witnesses testify, from their own knowledge of the party and his habits, that he was not of temperate habits, their testimony is entitled to greater consideration by a jury than witnesses who testify otherwise, because they have not seen or known of such habits as are testified to by those who declare that he was not a person of temperate habits.” This instruction the court refused to give, and an exception was taken. The court, among other things, instructed the jury that all the representations in the application for the policy of insurance are warranties that such representations are true, and that if they find from the evidence that the habits of the insured, at the time of, or at any time prior to the application, were not temperate, then the answers made by him to the questions, “ Are you a man of temperate habits ? “Have you always been so?” were untrue, and the policy is void; but that if they find that his habits in the usual, ordinary, and every-day routine of his life were temperate, then such representations were not untrue within the meaning of Oct. 1881.] Insurance Co. v. Foley. 353 the policy, although they may find that he had an attack of delirium tremens, resulting from an exceptional indulgence in drink prior to the issue of the policy ; and that the burden of proof is upon the defendant to show the breach of any warranty in the policy. To the charge the defendant excepted. The jury found for the plaintiff, and, upon the verdict, judgment was entered ; to review which the case is brought to this court on a writ of error. Mr. A. Gr. Magrath for the plaintiff in error. Mr. J. P. K. Bryan for the defendant in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. The instruction requested by the defendant, treating it as applicable to the case at bar, and not as containing a mere abstract proposition of law, is open to several objections. In the first place, it assumes that there was a difference in the sources of knowledge of the witnesses in the case ; which was not the fact. All of them testified from their observation of the conduct of the deceased; and the jury would properly give weight to the testimony, not according to the positiveness of the averments of the witnesses as to their knowledge, but, other considerations being equal, according to their opportunities of observation of the deceased’s conduct, and the manner in which those opportunities had been improved. No witness testified, from his own knowledge, that the deceased was of intemperate habits at the time he applied for the insurance, and that he had always been so. No instruction should be given which thus assumes, as a matter of fact, that which is not conceded or established by uncontradicted proof. New Jersey Mutual Life Insurance Co. v. Baker, 94 U. S. 610. In the second place, the instruction requested does not present the law with entire accuracy. Whether the testimony of the persons alleging knowledge is entitled to greater consideration than that of persons asserting opinions, mainly depends upon the subjects with respect to which the testimony is given. If the subject be, as in this case, the habits of a party, affirmations of knowledge will be weighed with reference to the opportunities of the witnesses to obtain the knowledge they vol. xv. 23 354 Insurance Co. v. Foley. [Sup. Ct. assert. If they are not intimate with him, and see him only occasionally, the assertion of knowledge of his habits, however strong, will amount to no more than the assertion of an opinion, and will not be entitled to equal weight with less positive testimony of other witnesses founded upon a more extended acquaintance. In the third place, the instruction requested omits the consideration of the character of the witnesses, as an element in determining the weight to be given to their testimony. The force of testimony often depends as much upon the intelligence and judgment of the witnesses, disclosed by their manner of testifying, as upon confidence in their general veracity. The charge given by the court, as stated above, correctly presented the law of the case. The question was as to the habits of the insured. His occasional use of intoxicating liquors did not render him a man of intemperate habits, nor would an exceptional case of excess justify the application of this character- to him. An attack of delirium tremens may sometimes follow a single excessive indulgence. Ray, in his treatise on Medical Jurisprudence, says, that, though it most commonly occurs in habitual drinkers, after a few days of total abstinence from spirituous liquors, it' may be the immediate effect of an excess or series of excesses in those who are not habitually intemperate as well as in those who are. Sect. 545. In the American Encyclopaedia, under the head of “ Delirium Tremens,” it is stated that it “ sometimes makes its appearance in consequence of a single debauch; ” though commonly it is the result of protracted or long-continued intemperance. Vol. v. p. 782. When we speak of the habits of a person, we refer to his customary conduct, to pursue which he has acquired a tendency, from frequent repetition of the same acts. It would be incorrect to say that a man has a habit of anything from a single act. A habit of early rising, for example, could not be affirmed of one because he was once seen on the streets in the morning before the sun had risen ; nor could intemperate habits be imputed to him because his appearance and actions on that occasion might indicate a night of excessive indulgence. The court did not, therefore, err in instructing the jury that if Oct. 1881.] Bennecke v. Insurance Co. 355 the habits of the insured, “ in the usual, ordinary, and everyday routine of his life, were temperate,” the representations made are not untrue, within the meaning of the policy, although he may have had an attack of delirium tremens from an exceptional over-indulgence. It could not have been contemplated from the language used in the policy that it should become void for an occasional excess by the insured, but only when such excess had by frequent repetitions become a habit. And the testimony of the witnesses, who had been intimate with'him for years, and knew his general habits, may well have satisfied the jury that, whatever excesses he may at times have committed, he was not habitually intemperate. Judgment affirmed. Bennecke v. Insurance Company. A party whose life was insured died at a place south of a certain parallel of latitude, his visit to which at that season of the year, without the consent of the company, worked a forfeiture of the policy. A relative, ignorant of his death, paid the customary price for a permit to go South to the local agent of the company, who transmitted to its State agents the money, and requested them to obtain the permit and forward it to him. It was not issued, and the agent, shortly after hearing of the death of the insured, tendered the money he had so received. Held, that the facts did not constitute a waiver of the forfeiture, and if they did, it was not, under the circumstances, binding. Error to the Circuit Court of the United States for the Southern District of Illinois. This was an action of assumpsit brought by Amelia Bennecke to recover of the Connecticut Mutual Life Insurance Company the sum of $2,000 upon a policy of life insurance. The parties having waived a jury, the issues, both of fact and law, were submitted to the court, which made a special finding, from which the following facts appear: — On Jan. 29, 1878, Adolph Bennecke procured from the Connecticut Mutual Life Insurance Company, through John Ansley, its agent at Bloomington, Ill., a policy of insurance 356 Bennecke v. Insurance Co. [Sup. Ct. on his life, for $2,000, for the benefit of Amelia Bennecke, his wife. It was an ordinary life policy, and contained, among other conditions, the following : — “ 3d, That the said insured is under this policy freely permitted to reside in any civilized abode in the western hemisphere, lying north of the thirty-second parallel of north latitude in the United States, and lying south of said thirty-second parallel, excepting from the first day of July to the first day of November, and in the eastern hemisphere lying north of the forty-second parallel of north latitude and west of the fortieth meridian of longitude east from Greenwich, and he may also pass as a passenger by usual routes and means of public conveyance to and from any port or place within the foregoing limits; but if he shall, at any time during the continuance of this policy, pass beyond or be without the foregoing limits without the consent of this company previously given in writing in each or either of the foregoing cases, then this policy shall become and be null and void. “ 4th, That in every case in which this policy shall cease and determine, or shall be or become null and void, all premiums paid in respect to the same shall be forfeited to the company.” After the signatures of the secretary and vice-president of the company and on the margin at the bottom of the policy appears the following: — “ M®“ Agents of the company have no authority to make, alter, or change any condition of the policy, nor to waive forfeiture thereof.” The annual premium of $46.24 required by the terms of the policy was duly and fully paid. Bennecke left his home at Bloomington, Ill., on Sept. 26,1878, and went to New Orleans, La., where he remained until his death, which occurred Oct. 15,1878. He died of yellow fever. Ansley had been the agent of the Connecticut Mutual Life Insurance Company, at Bloomington, Ill., from 1863, up to and including October, 1878. On Oct. 16, 1878, he first heard that Bennecke had gone to New Orleans. On October 17, he called on Haker, the assured’s brother-in-law, to whom he stated that he had heard that Bennecke was then in New Orleans, and that on account of this violation of the condition Oct. 1881.] Bennecke v. Insurance Co. 357 of the policy the insurance was forfeited. He advised Haker to pay, on behalf of Bennecke, twenty dollars, the price of a Southern permit. Haker at first said he knew nothing about it, and refused to pay the money. He then said he would look into the matter. The same day, after a consultation with Mrs. Bennecke, he went to Ansley’s office, paid him twenty dollars, and took from him a receipt, as follows: — “ $20. Agency at Bloomington, III., Oct. 17, 1878. “Received from Christ. Haker, twenty dollars, being the amount required for a southern permit on policy of Adolph Bennecke in the Connecticut Mutual Life Insurance Company, of Hartford, Conn., No. 52,242. “ Amount of policy $2,000. “John Ansley, Agent” At the time of taking this receipt, neither Haker, Ansley, nor Bennecke’s wife or friends knew that Bennecke was dead. Ten dollars per thousand was the customary price fixed by the company as the extra premium for a permit to go south of the thirty-second parallel between the 1st of July and the 1st of November. Ansley recollected having received money for three or four such permits, possibly more, at that rate. In such cases he simply received the money for the permits, forwarded it to the State agents of the insurance company at Chicago, and requested them to get permits from the insurance company at Hartford, Conn., and send them to him for delivery. He enclosed the twenty dollars received from Haker to the State agents of the insurance company at Chicago, in the following letter, the receipt of which they acknowledged: — “ Agency at Bloomington, Oct. 17,1878. “Messrs. Stearns, Dickinson, & Co. “ Gents, — Herein please find draft for $20, less ex., for which please get and send me a southern permit for A. Bennecke, insured by policy 52,242; amount $2,000. He went to New Orleans about ten days ago, and will probably remain there during the balance of the month. Please give this immediate attention, and get permit here as soon as possible. This twenty dollars paid this day. “Yours truly, John Ansley.” 358 Bennecke v. Insurance Co. [Sup. Ct. Ansley never received a permit from the insurance company for Bennecke. On the 6th of November, 1878, he having become satisfied that Bennecke was dead at the time the money was paid for the permit, of his own motion took twenty dollars of other money belonging to the company and tendered it to Haker, stating as a reason therefor that Bennecke was dead at the time the money was paid. Haker refused to receive it. Ansley had no authority to issue policies of insurance, but after they were issued he turned them over to the parties on payment of the premium. He received no word from the company or the State agents about Bennecke’s death up to the time he tendered the money to Haker. On the 26th of October he addressed a letter to those agents, in which he informed them that Bennecke had died on October 17, in New Orleans, of yellow fever. From all that appears this was the first information received by them of Bennecke’s death. Ansley knew what was the' price required for a permit, and had never applied for one without getting it. But he never applied for one when yellow fever was prevailing in the forbidden region. Proofs of loss, dated the 6th of December, 1878, were furnished the insurance company, and on the trial it offered to return the money received by Ansley for the permit. Suit on the policy was begun in the Circuit Court of McLean County, Illinois, on the eighteenth day of April, 1878, by a declaration on the policy. The general issue only was pleaded, and on the petition of the defendant the case was transferred to the Circuit Court of the United States. It was admitted by the company that there was no other defence in the case than what arose from the forfeiture of the policy by reason of the fact that Bennecke had gone south of the thirty-second parallel of latitude between the first of July and the first of November, without the consent of the company previously given in writing ; and on the foregoing facts it occurred as a question whether the forfeiture had been waived by the company, on which question the judges were opposed, and the presiding judge being of opinion that the forfeiture had not been waived, judgment was entered for the defendant. Whereupon, and on motion of the defendant, by its counsel, Oct. 1881.] Bennecke v. Insurance Co. 359 it was ordered that the state of the pleadings, and the facts found, and the question on which the judges differed, be certified according to the request of the defendant, and the law in that case made and provided, to this court to be finally decided. The cause has accordingly been brought to this court by writ of error. J/r. William A. McKenney for the plaintiff in error. Mr. Edward S. Isham for the defendant in error. Mr. Justice Woods, after stating the case, delivered the opinion of the court. It is not disputed by the plaintiff, that, upon the facts found, the policy of insurance had been forfeited. It is not insisted that the company by its agent formally waived the forfeiture, or issued any permit to Bennecke, from which such waiver could be inferred. But the plaintiff contends that, after the forfeiture of the policy, Ansley, the agent of the company at Bloomington, having on October 17 received the sum usually charged for a permit to reside south of the thirty-second parallel, between the 1st of July and the 1st of November, and sent it on the same day to the agents of the company at Chicago, its receipt by them, and the fact that they never returned it to the person by whom it was paid, are sufficient to establish the company’s waiver of the forfeiture. It does not appear from the findings that either the agent at Bloomington, or those at Chicago, had any direct authority to waive a forfeiture. But even if it were shown that they had such authority, and had waived the forfeiture, or that the company itself had waived it, the waiver would not, under the circumstances of this case, be binding on the company. A waiver of a stipulation in an agreement must, to be effectual, not only be made intentionally, but with knowledge of the circumstances. This is the rule when there is a direct and precise agreement to waive the stipulation. A fortiori is this the rule when there is no agreement either verbal or in writing to waive the stipulation, but where it is sought to deduce a waiver from the conduct of the party. Thus, where a written 360 Bennecke v. Insurance Co. [Sup. Ct. agreement exists and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for a written agreement, he must clearly show not merely his own understanding, but that the other party had the same understanding. Darnley (JEarl) v. London, Chatham, £ Dover Railway Co., Law Rep. 2 H. L. 43. The same rule applies to the ratification by the principal of the unauthorized acts of his agent. “ It is perfectly well settled that a ratification of the unauthorized acts of an agent, in order to be effectual and binding on the principal, must have been made with a full knowledge of all material facts, and that ignorance, mistake, or misapprehension of any of the essential circumstances relating to the particular transaction alleged to have been ratified will absolve the principal from all liability by reason of any supposed adoption of or assent to the previously unauthorized acts of the agent.” Combs n. Scott, 12 Allen (Mass.), 493. And it has been declared by this court that “ no doctrine is better settled, both upon principle and authority, than this: that the ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material facts. If the material facts be either suppressed or unknown, the ratification is treated as invalid, because founded on mistake or fraud.” Owings n. Hull, 9 Pet. 607. See also Diehl v. Adams County Mutual Insurance Co., 58 Pa. St. 443; Bevin v. Conn. Mutual Life Insurance Co., 23 Conn. 244; Viall v. (renessee Mutual Insurance Co., 19 Barb. (N. Y.) 440. There is no pretence in this case that the company was advised of the material facts, when its supposed waiver of the forfeiture of the policy and its ratification of the acts of its agent took place. The contention of the plaintiff is that a forfeiture was waived when the company was totally ignorant that it existed. And the waiver is inferred from a permit, which is itself deduced from the fact that an agent, himself ignorant of the material facts, agreed to apply to the company for it, and received and forwarded the money to pay therefor. Oct. 1881.] Bennecke v. Insurance Co. 361 The very purpose for which a permit was asked shows that both parties'were ignorant of the facts which should have been communicated to the company and its agents before any effect could be given to its alleged waivter of the forfeiture. Permission was asked that Bennecke might reside and travel south of a certain parallel. This implied that he was living and able to travel. But the findings show he was dead when the permit was applied for. If the company had given him a formal permit in writing to reside and travel south of the thirty-second parallel, he being dead at the time, and the company ignorant of the fact, it would be a complete non sequitur to hold that this amounted to a waiver of a forfeiture of the policy unknown to the company, and consequent upon his doing the act for which a permit was asked, and which was in violation of a condition of the policy. The case may be thus stated: The right of the plaintiff to a recovery rests on a waiver by the insurance company of the forfeiture of the policy. But there has been no direct waiver. The waiver is deduced from the permit. But there has been no formal permit. The permit is inferred from the fact that Ansley, a local agent, who had no knowledge of the death of Bennecke, applied for a permit to other agents also ignorant of the death of Bennecke, and remitted to them the money therefor which they retained, but which Ansley tendered back, using for the tender other moneys of the company; the company itself, the principal of these agents, being all the time ignorant that Bennecke had forfeited his policy by a violation of its conditions, or that he had died in consequence of such violation, or that after his death a permit to allow him to reside and travel in the forbidden region had been applied for, or that any money had been handed to its agent to be paid over as the consideration for such permit. The case of the plaintiff is not aided by the facts found by the court in relation to the retention by the agents of the company of the money paid for the permit. It is unnecessary to decide what inference might be drawn if the company or its agents, with full knowledge of the death of Bennecke, had retained the money and never tendered it back. It does not appear that Ansley was informed of the death of Bennecke 362 Asylum v. New Orleans. [Sup. Ct. until October 26. On November 6, eleven days thereafter, he tendered back to Haker the money advanced by him to pay for the permit. Under the circumstances of this case we do not think this lapse of time sufficient to show that Ansley intended to waive the forfeiture of the policy, even if he had been clothed with authority to do so. If the company was bound by the act of Ansley in receiving the money for the permit, it was entitled to the benefit of his act in tendering it back. One tender was sufficient. That made by Ansley was never disavowed by the company. On the contrary, the company renewed it upon the trial of the cause in the Circuit Court. Under the circumstances of this case, the contention that the insurance company waived the forfeiture of the policy is .without support. Judgment affirmed. Asylum v. New Orleans. * An institution in the city of New Orleans for the relief of destitute females and helpless1 children of all religious denominations was incorporated April 29, 1853, by an act of the General Assembly of the State of Louisiana, which declares that from and after its passage all the property, real and personal, belonging to the institution “ is hereby exempted from all taxation either by the State, parish, or city in which it is situated, any law to the contrary notwithstanding.” By means of donations the institution erected an asylum, and has always fulfilled the objects for which it was established. In the year 1874 certain property — a cotton-press — was devised to it, the revenues of which have been faithfully applied to enable it to carry on its work. Under a statute enacted in pursuance of article 118 of the State Constitution of 1868 (infra, p. 364), the city in 1876 imposed upon that property a tax, the validity of which was sustained by the court below. Held, 1. That imposing the tax without granting any compensation or indemnity was not a legitimate exercise of the power of dissolving corporations which is reserved in a provision of the Code of Louisiana. 2. That the statute and the provision, as they were construed and applied to the circumstances of this case, are in violation of the tenth section of the first article of the Constitution of the United States. Erbor to the Supreme Court of the State of Louisiana. The facts are stated in the opinion of the court. Oct. 1881.] Asylum v. New Orleans. 363 Mr. Edwin T. Merrick and Mr. Greorge W. Race for the plaintiff in error. Mr. Henry C. Miller, contra. Mu. Justice Bradley delivered the opinion of the court. This case comes before us for the purpose of reviewing the judgment of the Supreme Court of the, State of Louisiana, which sustained the validity of a certain tax imposed by the authorities of the city of New Orleans upon the property of the plaintiff in error, the “ St. Anna’s Asylum for the relief of destitute females and helpless children of all religious denominations,” a charitable institution which was incorporated by an act of the legislature of Louisiana, approved April 29, 1853, for the purposes indicated by its name. The charter gave it perpetual succession and power to take, purchase, possess, and enjoy all kinds of property whatever, real or personal, by gift, grant, sale, bequest, exchange, or by any other mode of conveyance or transfer whatsoever, and the same to sell, convey, or dispose of under the restrictions therein provided, and directed that it should administer' the same for the furtherance of the object of the incorporation and in accordance with the conditions of the charter; with a provision, that all acceptances of immovable property, and all alienations of immovable property and stocks, should be signed by the president and treasurer, after the declared will of a majority of the board of directors had been duly inscribed on the minutes of the corporation. It appointed a first board of directors, and provided for annual elections thereafter, and for the appointment of a president and other officers, and declared that the president and directors should superintend, manage, and control the affairs and interests of the corporation. The sixth section declared as follows: — “ Sect. 6. Re it further enacted, &c., that the said corporation shall enjoy the same exemption from taxation as was enacted in favor of the ‘Orphan Boys’ Asylum of New Orleans’ by the act approved March 12, 1836, entitled, ‘ An Act for the relief of the Orphan Boys’ Asylum of New Orleans.’ ” The act relating to the “ Orphan Boys’ Asylum of New Orleans,” referred to in this section, declared as follows: — 364 Asylum v. New Orleans. [Sup. Ct. “That from and after the passage of this act all the property, real and personal, belonging to the Orphan Boys’ Asylum of New Orleans be and the same is hereby exempted from all taxation either by the State, parish, or city in which it is situated, any law to the contrary notwithstanding.” The proofs show that under the charter thus granted the corporation was duly organized, and, by means of donations, erected an asylum, and has always fulfilled the objects of its organization. The property on which the tax in question was imposed was procured in 1874, and was assessed in the tax-list at $90,000. The following admission with regard to it appears in the record : — “ Now, therefore, it is admitted (as was done in the lower court) that the defendant acquired said cotton-press mentioned in the tax-bill and answer filed by defendant, after 1874, by devise, bequest, and legacy, from Dr. W. N. Mercer, and that they were the owners of the same when said assessment of $1,350 Of city taxes was made by the city. That no inmates of the asylum are kept upon the premises, and that the revenues of the cotton-press on which said assessment is made are applied to the keeping and maintaining the objects of charity mentioned in the defendant’s act of incorporation, viz. to the support and maintenance and relief of destitute females and helpless children of all religious denominations, as intended by the charter, and that said asylum is, and has been since its organization, in active and efficient operation (as shown by the evidence) in the city of New Orleans.” The proofs further show that the corporation largely relies on the rents of this property for enabling it to carry on its benevolent work. The tax in question was imposed in 1876 under the supposed authority of the Constitution of 1868, and legislation adopted in pursuance thereof. Article 118 of that Constitution declared as follows: “ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law. The General Assembly shall have power to exempt from taxation property actually used for church, school, or charitable pur poses. Oct. 1881. J Asylum v. New Orleans. 365 In conformity with this provision the legislature of Louisiana, in 1871, passed a law delaring that all taxes levied by the city of New Orleans shall be assessed equally upon every description of property, both real and personal; but, by another act, passed at the same session, it was declared that public hospitals, asylums, poor-houses, and all other charitable institutions for the relief of indigent and afflicted persons, and the lots of ground appurtenant thereto and used therewith, and all their furniture and equipments, so long as the same shall be used for that purpose only, shall be exempt from taxation. The corporation resisted the payment of the tax, and the usual proceedings for its collection were instituted in the Third District Court for the Parish of Orleans. The corporation filed an answer setting up the exemption from taxes contained in its charter, and claiming that it was a contract, and contended that the Constitution of 1868, and the statute passed in pursuance thereof, impaired the obligation of said contract, in violation of the tenth section of the first article of the Constitution of the United States. The court below gave judgment in favor of the city, and an appeal was taken to the Supreme Court of Louisiana, and the judgment was affirmed. We are now called upon to review this decision. The language of the exemption is so explicit and so broad, and comes in after so many allusions to property which it is supposed the corporation might acquire, other than that which would be directly used for food and shelter to the destitute and helpless persons under its care, that no doubt can be entertained as to its literal application to all the property of the society which it would be lawful and proper for it to possess. The funds on which it relies for carrying on its work, however invested, whether in stocks, real estate, or otherwise, no less than the asylum building itself, are clearly embraced in the terms of the exemption; and to exclude them from its operation would require the insertion or addition of words which the legislature did not see fit to express. Undoubtedly, if the corporation should acquire property not needed or used for carrying on the institution, it would be an act outside of the objects and purposes of the charter, and 366 Asylum v. New Orleans. [Sup. Ct. ultra vires ; and, as to such property, it could not, in its own wrong, justly claim the benefit of the exemption. But the property in question is not obnoxious to this objection; it directly contributes to the support of the institution, and is held for that purpose alone. Indeed, it is not on any assumption that the language of the exemption does not extend to the property taxed that the Supreme Court of Louisiana bases its judgment. The main ground upon which it relies is, that the charter was granted and accepted under a standing law of the State, by which the legislature was authorized to abrogate the charter of any corporation ; and it was argued that the power to abrogate included the lesser power to alter and amend. This law is contained in article 438 of the Civil Code adopted in 1825, being a modification of a similar article in the Code of 1808, book i. tit. 10, c. 3. In the Code of 1825 it reads as follows: — “ Chapter III. Of the dissolution of corporations. (Art. 438.) A corporation legally established may be dissolved: 1. By an act of the legislature, if they deem it necessary or convenient to the public interest; provided that when an act of iricorporation imports a contract, on the faith of which individuals have advanced money or engaged their property, it cannot be repealed without providing for the reimbursement of the advances made, or making full indemnity to such individuals ; 2. By the forfeiture of their charter, when the corporations abuse their privileges, or refuse to accomplish the conditions on which such privileges were granted,” &c. The counsel for the plaintiff in error contends that this article has reference only to the absolute dissolution of a corporation and not to a mere alteration of its charter; and, from its correlation to other parts of the title, this seems to be a very probable view of its office. But if it be construed in the large sense contended for by the counsel of the city, the qualification with which it is accompanied in the proviso is very important and not to be ignored. This qualification requires reimbursement or indemnity to those who have made advances upon the faith of the charter of incorporation. Nothing of the kind has been attempted in this case. As the corporation has not been dissolved, but is continued in existence, and still Oct. 1881.] Asylum v. New Orleans. 867 represents those who contributed to its establishment, the corporation itself is the only proper party to receive indemnity ; and no indemnity short of the amount of the tax imposed would be adequate. The indemnity and the tax would mutually balance or neutralize each other. In other words, proper indemnity would require a revocation or nullity of the tax. It is suggested, however, by the Supreme Court, in its opinion, that the reserved power contained in the code has no application to this case, because the property upon which the tax in question was imposed was acquired by gratuitous donation after the adoption of the Constitution of 1868, and consequently (as the court infers) after the repeal of so much of the charter as exempted from taxation the property not employed within the limits of exemption allowed by that Constitution. “ When a case of prior acquired property,” says the court, “presents itself, it will be time enough to express our opinion thereon.” But this argument presupposes the existence of a right to repeal the provisions of the charter as to future acquisitions, without qualification or condition. This seems to us a begging of the question at issue. The contract did not apply only to property in existence when the charter was granted, nor only to that which was in existence when the Constitution of 1868 was adopted, but to all that might afterwards be acquired in the due fulfilment of the purposes of the institution. If the present asylum should be destroyed, and a new one erected on a different piece of ground, the argument of the court would be equally applicable to such newly acquired property as to the property in question. The Constitution itself did not exempt any property. It only gave the legislature the power (to be exercised, or not, in its discretion) to exempt property actually used for church, school, and charitable purposes. The legislature has seen fit to make this exemption ; but it was not obliged by the Constitution to do so. The argument of the Supreme Court would go to the extent of declaring that the abrogation of the contract, effected by the Constitution of 1868, was valid as to all after-acquired property, whether indemnity was provided or not; and this amounts to saying that the legislature or people of Louisiana 368 Asylum v. New Orleans. [Sup. Ct. had absolute power to pass a law impairing the obligation of the contract, without any condition or qualification whatsoever. We cannot concur in this view. We think that the power of abrogation, or alteration, was qualified by the duty of providing indemnity to the full extent of the damage or burden caused by such change. This conclusion seems to us so obvious as to require no extended argument in its support. This opinion might be extended by an examination of authorities. We might refer to Home of the Friendless v. Rouse (8 Wall. 430), which is almost on all-fours with the present case. We might go back to the case of Dartmouth College n. Woodward, and the cases since decided, and review all the reasons on which they were grounded; we might dilate on the legislative reasons for granting immunity from taxes to such charitable institutions as that of the plaintiff in error* prominent among which would doubtless be the fact that the support and maintenance extended to the objects of the charity relieves the State from a burden which would involve a much larger amount of taxation than that which it waives by granting the exemption. But such a review would be but a repetition of what has been said before, and much of it would be out of place. It is proper, however, that we should notice one or two cases which the counsel for the city suppose to be favorable to their views, and on which they place considerable reliance. These are Tucker v. Ferguson, 22 Wall. 527, and West Wisconsin Railway Co. v. Board of Supervisors, 93 U. S. 595. We think that they do not apply to the case now under consideration. In the first place, the Constitutions of Michigan and Wisconsin, in which States those cases arose, reserved to their legislatures, respectively, the power to alter, amend, and repeal charters of incorporation. In the next place, in those cases, the exemption granted was held to be gratuitous on the part of the State, no consideration passing therefor from the companies. It was no part of their charters of incorporation, and, therefore, formed no consideration for their acceptance. Whereas, in the present case, the exemption was expressed in the charter itself, and was one of the inducements offered for Oct. 1881.] Asylum v. New Orleans. 369 its acceptance, and for making donations for the establishment of the institution. It is also said that, in order to constitute a contract, the grant ought to be clear and free from all ambiguity and doubt, and not susceptible of a different construction. We think it is so in this case. The contract is not a matter of inference or presumption. It is distinctly expressed in the act of incorporation. Indeed, a clearer case could hardly be made. The addition of a declaration, that the exemption given should not be withdrawn, would not have added to its force. We are well aware of the forcible language which has been used in previous cases in reference to the importance to the State of the governmental function of taxation ; the caution that ought to be exercised in maintaining a claimed exemption from taxes ; the clearness and certainty which the grant should exhibit. We concur in all that has been said by this court and many State courts on the subject. But where the language is clear, and the intention to grant the exemption apparent, the court has never hesitated to give it force and effect. And, as before said, we think it difficult to conceive a grant more clearly expressed than that in the present case ; and unless we are disposed to reverse the previous decisions of this court, we cannot hesitate what judgment we ought to give. We are of opinion that the imposition of the tax in question, contrary to the express terms of the charter, and without any provision for compensation or indemnity, was not a legitimate exercise of the power of dissolution reserved in the code ; and that sect. 118 of the Constitution of 1868, and the legislative act by virtue of which the said tax was imposed, as construed and applied to the circumstances of this case, are in violation of the tenth section of article 1 of the Constitution of the United States. Our conclusion is that the judgment of the Supreme Court of Louisiana must be reversed, and that the cause be remanded with instructions to reverse the judgment of the Third District Court of the Parish of Orleans, and to render judgment in conformity with this opinion. So ordered. vol. xv. 24 370 County of Moultrie v. Fairfie£d. [Sup. Ct. Mr. Justice Miller, with whom concurred Mb. Justice Field, dissenting. I dissent from this judgment, because I understand that no statute shall be held to grant exemption from taxation unless its language imperatively requires it. I do not think that the language of the statute under which the exemption is claimed in this case requires that all property acquired by the institution after the passage of the act shall be exempted, • especially in regard to a cotton-picking machine, which can only be of value as it is used in a business operation in competition with others who must pay heavy taxes. County of Moultrie v. Fairfield. 1. The charter of the Decatur, Sullivan, and Mattoon Railroad Company, which took effect March 26, 1869, authorized the board of supervisors of the county of Moultrie, Illinois, to subscribe to the capital stock of that company to an amount not exceeding $80,000, and also, should it be sanctioned by a popular vote, to make a donation in aid of the company, and in each case to issue the requisite amount of county bonds. 2. Where, before the adoption of the Constitution of Illinois of 1870, a donation in aid of a railroad company had, pursuant to law, been voted by a county, bonds to pay that donation might be thereafter issued. 3. That vote cannot be held for naught, although in the notice of, and the petition for, the election at which it was cast the company is misnamed, if it sufficiently appears that the company was meant. 4. In this case the power to levy a tax was conferred, the company performed all the conditions which, by the vote cast Nov. 2, 1869, entitled it to receive the donation bonds, and they were delivered Nov. 1, 1871, reciting the law authorizing their issue. Held, that, in a suit by a bona fide holder of the coupons cut therefrom, a recovery cannot be defeated upon the ground that, in order to pay the principal and interest and the county expenses, the assessment must exceed the limitation imposed by sect. 8, art. 9, of the Constitution of 1870. 5. Qwcere, Is there any limit upon the power of taxation to raise means tq meet the indebtedness of which the bonds in question are the evidence. Error to the Circuit Court of the United States for the Southern District of Illinois. This action was brought by Fairfield against the county of Moultrie, upon the common counts, for money lent, money had Oct. 1881.] County of Moultrie v. Fairfield. 371 and received, and money due on account stated, with notice that he would give in evidence coupons detached from certain bonds of the county issued in satisfaction of its respective donations in aid of the Bloomington and Ohio River Railroad Company, and the Decatur, Sullivan, and Mattoon Railroad Company. Plea, non assumpsit, under which, by agreement, the county was allowed to offer any evidence and make any defence that would be competent under any special plea well pleaded. The parties submitted the issues of fact as well as of law to the court; and a special finding of facts was made, upon which judgment in his favor was rendered, to reverse which the county brought this writ of error. The material facts are set forth in the opinion of this court. Mr. John R. Eden for the plaintiff in error. Mr. Shelby M. Cullom and Mr. E. S. Bailey for the defendant in error. Mr. Justice Woods delivered the opinion of the court. We shall first consider the objections raised by the plaintiff in error to the recovery upon the bonds of the county of Moultrie issued to the Decatur, Sullivan, and Mattoon Railroad Company. The charter of this company took effect March 26, 1869. The ninth section provides as follows: “ The several incorporated towns, cities, counties, and towns organized under the township organization law, along or near the route of said road, or that are in any way interested therein, may, in their corporate capacities, subscribe to the stock of said company or make donations thereto to aid in constructing or equipping said railroad.” Then follows a proviso making subscriptions to the stock and donations conditional upon a vote of the people and prescribing the mode of holding elections, &c. Section 10 declares : “ The board of supervisors of Moultrie County are hereby authorized to subscribe to the capital stock of said company to an amount not exceeding eighty thousand dollars, and to issue the bonds of the county therefor, bearing interest at a rate not exceeding ten per cent per annum, said bonds to be issued in such denominations' and to mature at such time as said board of supervisors may determine: Pro 372 County of Moultrie v. Fairfield. [Sup. Ct. vided, that the same shall not be issued until said road shall be opened for traffic between the city of Decatur and the town of Sullivan aforesaid.” It appears from the records of the board of supervisors, as stated in the findings of the court, that on Nov. 2, 1869, an election was held according to law in the county, at which a majority of the votes cast was in favor of a proposition to donate to the company the sum of $75,000, to be paid in the bonds of the county when the road should be completed and in running order through it; and that, in pursuance of the vote, the board, Dec. 19, 1869, passed an order that there be donated by the county to the company the sum of $75,000, and that when the road should be completed through the county there be issued and delivered to the company the bonds to that amount payable in ten years, in satisfaction of such donation; and that on Nov. 1,1871, the chairman of the board of supervisors and the clerk of the county issued and delivered to the company seventy-five bonds of $1,000 each in satisfaction of the donation. These bonds recite on their face that they are “ issued by said county of Moultrie by virtue of a vote of a majority of the legal voters of said county voting at an election held in said county of Moultrie on the second day of November, 1869, which election was authorized by, and conditioned according to the provisions of, an act of the General Assembly of the State of Illinois, approved March 26, 1869, entitled an act to incorporate the Decatur, Sullivan, and Mattoon Railroad Company.” The court further found that Fairfield was a bona fide purchaser for value before maturity of the bonds issued to the company, from which the coupons offered in evidence were detached. The facts above stated as found by the court, and the authority conferred by the ch arter of the company to issue the bonds, establish prima fade their validity and the right of Fairfield to recover. The county insists, however, that there are other facts set forth in the findings which show the invalidity of the bonds. These are that, at the December special term, 1869, of the board of supervisors of Moultrie County, an order was passed Oct. 1881.] County of Moultrie v. Fairfield. 373 that the county subscribe to the capital stock of the company, by authority of sect. 10 of its charter, above recited, the sum of $80,000 ; that said subscription was then and there made; and that on Dec. 31, 1872, the road being then open for traffic between Decatur and Sullivan, the bonds of the county were issued and delivered to the company in payment of its subscription of stock. The contention of counsel for the county is that the board of supervisors having, in December, 1869, subscribed to the capital stock of the company the sum of $80,000, by authority of sect. 10 of the charter of the company, it had given all the aid to the railroad company which the law authorized. In other words, it is insisted that the county could not subscribe the full amount of stock authorized by sect. 10, and also make a donation 'under sect. 9 ; that it could only do one of these two things. The inference which is drawn from this position is that the bonds issued in satisfaction of the donation, voted for by the people of the county and subscribed by the board of supervisors, were issued without authority, and are, therefore, void. We cannot, for several reasons, concur in his views. First, it is conceded that the board could either subscribe any sum not exceeding $80,000 to the stock of the company, under sect. 10 of its charter, and issue the bonds of the county in payment thereof, or it could make a donation, under sect. 9 of the charter, of any amount which had been voted for by the voters of the County, and issue the bonds of the county in satisfaction thereof. As the county sets up as matter of defence against the donation bonds issued to the company, the fact that a subscription of stock had also been made, in payment of which the county had issued its bonds, it stands it in hand to show that the obligation of the county to issue bonds in payment of its subscription antedated its obligation to issue bonds to satisfy its donation. This the findings fail to show. They do not show which was first voted by the board, the donation or the subscription. They do show, however, that before any action was taken by the board in reference to either, to wit, on Nov. 2, 1869, the electors of the county had voted in favor of the donation. They further show that the county agreed to issue its 374 County of Moultrie v. Fairfield. [Sup. Ct. bonds in satisfaction of its donation when the company had completed its road through the county, and to issue its bonds in payment of its stock when the railroad should be open for traffic between the city of Decatur and the town of Sullivan ; that the road was completed through the county as early as Oct. 20, 1871, and that the donation bonds were issued and bòre date Nov. 1, 1871 ; that the road was not open for traffic between Decatur and Sullivan until Dec. 31, 1872; and that on that day, fourteen months after the issue of the donation bonds, the subscription bonds were executed and issued. If either class of bonds, therefore, has any advantage over the other on the question of authority for their issue, it would seem to be the donation bonds. Secondly, as there was authority for the issue of the donation bonds, which is recited on their face by reference to the law fròm which it was derived, the purchaser before maturity was not bound to look further. The county having authority to issue bonds like those purchased by him, he was under no obligation to inquire whether the county had issued more bonds than the law authorized. Lynde v. The County, 16 Wall. 6; City of Lexington v. Butler, 14 id. 282; Marcy v. Township of Oswego, 92 U. S. 637 ; Humboldt Township v. Long, id. 642. Thirdly, we are clearly of opinion that under sect. 10 of the charter of the company the county might subscribe for stock to an amount not exceeding $80,000, and issue its bonds in payment thereof, and under sect. 9 of the same charter make a donation to the same company, and issue its bonds in satisfaction thereof. It is clear, and it is conceded in the brief of plaintiff in error, that the county is included within the terms of sect. 9, which applies to counties along or near the route of the road, or that are in any way interested therein. It is also clear that, independently of the provisions of sect. 10, the county might, upon a vote of the people authorizing it, make a donation of any amount to the company. Section 10, which authorizes a subscription to the stock within certain limits, and without any vote of the people, does not preclude a donation under sect. 9. The obvious construction of the two sections, taken together, is that any county along Oct. 1881.] County of Moultrie v. Fairfield. 375 the line of the railroad, upon a vote of the people, may, without limit, either subscribe to the stock of the company or make it a donation to be paid for in bonds, and that the county of Moultrie may subscribe to the stock of the company, without a consenting vote of the people, any sum not exceeding $80,000. We must give this construction to the two sections if we allow both to have their full effect; and, if possible, they should be so construed as to give full effect to both, without any limitation or condition not incorporated in them by the legislature. The authority granted to Moultrie and other counties by sect. 9 to make donations is not restrained or repealed because authority is granted to Moultrie County, by another section and upon different conditions, to subscribe stock. One section is not inconsistent with the other, and therefore does not repeal it. The next reason upon which the invalidity of the bonds and coupons under consideration is based, is the section of the Constitution of Illinois of 1870, which declares: “No county, city, town, or township, or other municipality, shall ever become subscriber to the capital stock of - any railroad or private corporation, or make donation to or loan its credit in aid of such corporation: Provided, however, that the adoption of this article shall not be construed as affecting the right of any such municipality to make such subscriptions, when the same have been authorized under existing laws, by a vote of the people of such municipalities under existing laws.” First additional section. The proviso of this section has been construed by the Supreme Court of Illinois — and this court has followed that construction — to extend to donations as well as subscriptions of stock. Chicago £ Iowa Railroad Co. v. Pinckney, 74 Ill. 277 ; Middleport v. lEtna Life Insurance Co., 82 id. 562 ; Lippincott v. Town of Pana, 92 id. 24; Fairfield v. County of GraUatin, 100 U. S. 47. According to the findings of the court below, the records of the board of supervisors of the county of Moultrie show that before the adoption of the Constitution of 1870 an election was held whereby the donation was authorized, which the bonds in suit were issued to satisfy, and we have already seen that 376 County of Moultrie v. Fairfield. [Sup. Ct. such election was authorized by sect. 9 of the charter of the railroad company. The prohibition of the Constitution does not, therefore, extend to the donation made in this case, or the bonds issued in satisfaction thereof. An attempt is, however, made by the plaintiff in error to show that no election by which said donation was authorized was ever held; because in the petition for the election, and in the notice of the election, the railroad company to which the donation was to be made was designated as the Mattoon, Sullivan, and Decatur Railroad Company, and not by its true name, to wit, the Decatur, Sullivan, and Mattoon Railroad Company. And the contention is that as there was no vote of the people which authorized the donation in question to the Decatur, Sullivan, and Mattoon Railroad Company, the power of the county to make the donation was cut off by the Constitution of 1870. There can be no doubt to what company the people intended to make their donation. The statute-books of the State of Illinois will be searched in vain to find an act incorporating a railroad company by the name of the Mattoon, Sullivan, and Decatur Railroad Company. There can' be no question that in the petition for, and the notice of, the election, the company intended was that known and chartered as the Decatur, Sullivan, and Mattoon Railroad Company; for the petition and notice designated the route upon which the road was to be built, and afterwards was built, and they refer to the provision of the charter of that company, which authorized the donation upon the making of which the voters were to express their will. But a conclusive circumstance against the county to show to what company the donation was voted, is found in the records of the board of supervisors, set out in the findings of the court, in which it is distinctly stated that the petition for the election requested that an election be held in pursuance of an act entitled an act to incorporate the “ Decatur, Sullivan, and Mattoon Railroad Company,” to decide whether a donation of 875,000 should be made to that company, and that such election was held on Nov. 2, 1869, and resulted in favor of donating the sum of 875,000 to that company. It was Oct. 1881.] County of Moultrie v. Fairfield. 377 therefore ordered that said sum be donated to the Decatur, Sullivan, and Mattoon Railroad Company, and when said company should have completed its road through the county, that the bonds of the county should be delivered to it in satisfaction of such donation. These records show what the understanding of the representative body of the county was in respect to the company to which the donation was voted. There can, therefore, be no doubt about the identity of the company which the voters of the county had in view when the election was held. It is certain that on Nov. 2, 1869, an election was held by the voters, and a donation of $75,000 voted to some railroad company. The circumstances to which we have adverted do not leave the least doubt that it was the Decatur, Sullivan, and Mattoon Railroad Company. Upon such a state of facts the law is well settled. Even a contract is not avoided by misnaming the corporation with which it is made. Hoboken Building Association v. Martin, 2 Beas. (N. J.) 427. And if a corporation is misnamed in a statute, the statute is not thereby rendered inoperative if there is enough from which to ascertain what corporation is meant. Chancellor of Oxford's Case, 10 Rep. 53. “ Although the names of corporations are not merely arbitrary sounds, yet if there be enough to show that there is such an artificial being, and to distinguish it from all others, the body politick is well named, though the words and syllables are varied from.” Bacon’s Abr., tit. Corporation, C. 2. And it has been held by the Supreme Court of Illinois that the transposition of words comprising the name of a corporation is unimportant, if it be evident what corporation is intended. Chadsey v. McCreery, 27 Ill. 253. We are, therefore, of opinion that in the petition for and notice of the election the transposition of two of the words of which the name of the corporation to which the aid was to be voted was in part composed, cannot render the election invalid and void. It is, therefore, clear that the donation voted for at that election is taken out of the operation of that clause of the Constitution of the State which declares that no municipality shall 378 County of Moultrie v. Fairfield. [Sup. Ct. make donations to, or loan its credit in aid of, any railroad or private corporation. In our opinion none of the objections which we have noticed, to the validity of the bonds under consideration, are well taken. The remaining objection to their validity is also urged against a recovery on those issued to the Bloomington and Ohio River Railroad Company, and is the only ground of defence against the last-named bonds. This objection we shall now consider. It is based on sect. 8 of art. 9 of the Constitution of Illinois, which declares: “ County authorities shall nev6r assess taxes, the aggregates of which shall exceed seventy-five cents per one hundred dollars valuation, except for the payment of indebtedness existing at the adoption of this Constitution, unless authorized by a vote of the people of the county.” To show the applicability of this provision to the question in hand, the plaintiff in error offered evidence in the court below, on which the court made the following findings: — “ That at the time of the issuing of said bonds the indebtedness of said county, including said bonds, was two hundred and seventy-five thousand dollars, and the valuation of the taxable property of said county was two million two hundred and seventy-nine thousand and eighty-four dollars, and that the sum of ten thousand dollars per annum was required to defray the necessary ordinary expenses of said county; and that at the time of the rendition of the judgment in this cause the indebtedness of the county, including accrued interest, was three hundred and seventy-five thousand dollars, and the valuation of the taxable property therein was three million five hundred and eighty-nine thousand two hundred and fifty-one dollars, and that it required twelve thousand dollars per annum to defray the necessary ordinary expenses of said county. “ That to enable said county to pay the indebtedness created by said donations to said Bloomington and Ohio River Railroad Company, and to said Decatur, Sullivan, and Mattoon Railroad Company, evidenced by said bonds still outstanding, the interest coupons upon which were sued on and offered in evidence in this case, will require the annual assessment of taxes, which Oct. 1881.] County of Moultrie v. Fairfield. 379 will exceed 75 cts. per $100 valuation of the taxable property in said county of Moultrie.” The argument of the plaintiff in error is that the indebtedness evidenced by the bonds issued by the county of Moultrie, in aid of the two railroads mentioned, does not fall within the exception found in sect. 8 of art. 9 of the Constitution, and that the above-recited findings of the court below show that the authorized tax of seventy-five cents on the one hundred dollars would not be sufficient to pay the expenses of the county and the principal and interest on the bonds. And it is, therefore, contended that the bonds are void. The authority cited to sustain this position (Loan Association v. Topeka, 20 Wall. 655) merely decides that the bonds are void where there is no power in the legislature to authorize a tax in aid of the purpose for which they were issued. But here it is conceded that there is power, within certain limits, to levy a tax to pay these bonds. They cannot, therefore, be void. Marcy v. Township of Oswego, supra. Moreover, it appears from the findings of the court that at the time the bonds in question were issued a levy of seventy-five cents on every hundred dollars valuation of the taxable property of the county would produce a sum sufficient to pay the ordinary expenses of the county, and leave a surplus of over $7,000 to be applied to the payment of the bonds, and that at the commencement of this suit such annual surplus, by reason of the increase in the taxable property of the county, would amount to nearly $15,000, — a sum almost sufficient to pay the judgment rendered in this case. So that the defence now under consideration is reduced to this, that because the whole judgment cannot be at once collected, there should be no judgment at all. But it nowhere appears in the record that the county has not ample means out of which the judgment could be collected besides its revenues derived from taxation. We know from the record that the county at one time owned $80,000 of the stock of the- Decatur, Sullivan, and Mattoon Railroad Company, and it does not appear that it is not still the owner of this stock, and that it may not now be subjected to the payment of the judgment recovered in this case, or that the 380 County of Moultrie v. Fairfield. [Sup. Ct. county mV not have other similar assets sufficient to pay all its debts. Therefore, even if the county, by reason of the limit on its taxing power, could not levy a tax to pay these bonds, nevertheless, they having been authorized, the holder is entitled to judgment on them, and to collect it out of any property of the county which could be subjected to the payment of its debts. Whether the indebtedness evidenced by the bonds which are the basis of this suit falls within the exception of sect. 8, art. 9, of the Constitution of Illinois, so that taxation for their payment is without limit, is a question which does not necessarily arise upon this record, and which we are not now required to decide. We are of opinion that there is no valid defence against a recovery on the coupons sued on. The people of the county almost unanimously voted for the issue of the bonds. The conditions upon which the donations were made were fully performed. The railroads which they were intended to aid were completed and in use before they were executed, and they were regularly and honestly issued by the public officers charged with that duty. They are in the hands of bona fide holders for value. Common honesty demands that the county should applv its available means to their payment, and there is no obstacle to a recovery upon the coupons. Judgment affirmed. Oct. 1881.] The “Francis Wright.” 381 The “Francis Wright.” 1. The act of Feb. 16, 1875, c. 77, whereby the appellate jurisdiction of this court in admiralty causes is limited to the determination of questions of law arising on the record is constitutional. 2. Where the court below, when thereunto requested, refuses to give any finding upon an ultimate disputed fact, established by competent evidence and which is involved in the cause, and material to its determination, or where, against remonstrance, it finds such a fact, in the absence of all evidence, the ruling, if excepted to at the time, and incorporated in a bill of exceptions which states the alleged error and the ground relied on below to sustain the objection presented, may, as a question of law, be reviewed here. 3. The court condemns the practice of drawing up bills of exception, which, so far from being “ prepared as in actions at law,” are framed as, if possible, to secure here a re-examination of the facts. 4. The court, upon the facts found, affirms the decree below. Appeal from the Circuit Court of the United States for the Southern District of New York. Duncan & Poey, the libellants, entered into the following charter-party with Woodhouse &'Rudd, the claimants : — “This charter-party, made in the city of New York this thirteenth day of September, in the year one thousand eight hundred and seventy-two, between Messrs. Woodhouse & Rudd, owners of the steamer ‘ Francis Wright,’ of New York, of the burthen of 600 tons or thereabouts, now lying in the harbor of New York, of the first part, and Messrs. Duncan & Poey, merchants of Philadelphia, of the second part, witnesseth: “ That the said party of the first part, in consideration of the covenants and agreements hereinafter mentioned, to be kept and performed by the said party of the second part, does covenant and agree on the freighting and chartering of the said vessel to the said party of the second part for the term of six months, to run between Philadelphia or New York and Galveston, or any intermediate safe port in the United States, or any foreign port not prohibited by the insurance. “It is further understood and agreed, that the said parties of the second part are to have the privilege of cancelling this charter at the expiration of three months, upon giving the parties of the first part fifteen days’ notice, and the payment of fifteen hundred dollars bonus on the terms following, viz.: 382 The “Francis Wright.” [Sup. Ct. “ First, The said party of the first part agrees the said vessel, in and during the said voyage, shall be kept tight, stanch, well fitted, tackled, and provided with every requisite for such a voyage. “ Second, The said party of the first part further agrees the whole of the said vessel (with the exception of the necessary room for the sails, cables) shall be at the sole use and disposal of the said party of the second part during the voyage aforesaid. “ Third, The said party of the first part further agrees to take and receive on board the said vessel, during the aforesaid voyage, all such lawful goods and merchandise as the said party of the second part, or their agents, may think proper to ship. “ And the said party of the second part, in consideration of the covenants and agreements to be kept and performed by the said party of the first part, do covenant and agree with the said party of the first part to charter and hire the said vessel, as aforesaid, on the terms following, viz.: To man, coal, and victual steamer, and pay all expenses of every nature (including port charges, &c.) connected with running of the steamer, except insurance on vessel and repairs, and to pay to the said party of the first part, or their agent, for the charter or freight of said vessel, during the voyage aforesaid, in man-nei’ following, viz.: Eighty-five ($85) dollars per day, United States currency, due daily, but payable at the expiration of each and every month, in New York; vessel to be returned to the owners at the expiration of this charter, in the same order and condition as she is now in, less the ordinary wear and tear. Charterer to take and deliver the steamer at New York; owners to nominate and charterers to appoint chief engineer, to be paid by charterers at rate of one hundred and twenty-five ($125) dollars per month. Charterers to appoint captain subject to the approval of the owners. It is also agreed that this charter shall commence at New York on the 18th of September, 1872. “ If from any derangement of machinery steamer is delayed, the time lost is not to be paid for by charterers, and in case such derangement, if any, owners to have privilege of cancelling charter. In case of any wreckage, towage, or salvage, accruing to the vessel whilst under this charter, one-half of said earning to be paid to the owners of the steamer. To the true and faithful performance of all the foregoing covenants and agreements the said parties do hereby bind themselves, their heirs, executors, administrators, and assigns, and also the . said vessel, her freight and appurtenances, and the merchandise to be laden on board each to the other in the penal sum of estimated amount of this charter. Oct. 1881.] The “ Francis Wright.” 383 “ In witness whereof the said parties have hereunto interchangeably set their hands and seals the day and year first above written. “Woodhouse & Rudd. “ Duncan & Poey. “ Sealed and delivered in presence of “ W. H. Starbuck, witness to both signatures.” The libel filed in the District Court alleges that, in accordance with the terms of the charter-party, Sherman was appointed chief engineer of the steamer, and Denison her captain ; that the libellants took her to Philadelphia, where they fitted her with refrigerators and other appliances for bringing a cargo of fresh beef from Galveston to Philadelphia, and then despatched her to Galveston; that on the outward voyage the vessel gave signs of unseaworthiness in the blowing and leaking of some of her boiler-tubes, by which the time of the voyage was fourteen instead of ten days, the usual time; that at Galveston the chief engineer was notified by the libellants to make repairs, &c., but he refused, whereby she, having taken a cargo of about seventy tons of fresh beef, was, Oct. 31, 1872, being then four hours at sea, out of the port of Galveston, compelled to put back there for repairs by reason of the boilertubes again blowing out and leaking, and was detained at Galveston seven days for repairs, leaving there again Nov. 7, 1872, and was fifteen days making the passage to Philadelphia, owing to the unsea worthy and defective condition of the boiler; and that by reason of these detentions and of the unseaworthy condition of the boiler, and also of the hot water which escaped from the boiler-tubes and was negligently allowed to run into the steamer’s bilge and melt the ice in the refrigerators where the fresh beef was stowed, the beef became spoiled and entirely lost, to the damage of libellants $30,000, which they claim to recover. The steamer was attached, but was subsequently released, upon the claimants entering into the usual stipulations conformably to the rules and practice of that court. The claimants answered, admitting the making of the charter-party, the appointment of the chief engineer and captain, and the libellants’ taking possession of the steamer. They deny all the other material allegations of the libel, and avei' that she, as far 384 The “Francis Wright.” [Sup. Ct. as they were bound to do, was kept as required by the contract. The District Court dismissed the libel, and the Circuit Court entered a decree of affirmance. The libellants excepted to certain of the findings of fact and to the refusal to find certain facts by them requested and to the conclusions of law. They thereupon appealed here. The bill of exceptions is incorporated in the record. The remaining facts appear in the opinion of the court. Mr. Robert D. Benedict and Mr. Benjamin Harris Brewster for the appellants. Mr. William Allen Butler, contra. Mr. Chief Justice Waite delivered the opinion of the court. Three questions have been presented on the argument of this appeal: — 1. Whether Congress has the constitutional power to confine the jurisdiction of this court on appeals in admiralty to questions of law arising on the record; 2. Whether, upon the bill of exceptions, the court below erred in refusing to find certain facts which, as is claimed, were established by uncontradicted evidence, and in finding others which had no evidence at all to support them; and, 3. Whether, on the facts found, the decree below was right. 1. As to the jurisdiction. If we understand correctly the position of the counsel for the appellants, it is precisely the same as that which occupied the attention of the court in Wiscart v. Dauchy, decided at February Term, 1796, 3 Dall. 321. There the question was, what, under the Judiciary Act of 1789, could be considered on a writ of error bringing to this court for review a decree in admiralty. The decision turned on the construction to be given the twenty-second section of the act, and Mr. Justice Wilson, in his minority opinion, said : “ Such an appeal,” that is to say, an appeal in which all the testimony is produced in this court, “ is expressly sanctioned by the Constitution; it may, therefore, clearly, in the first view of the subject, be considered as the most regular process; and as there are not any words in the Oct. 1881.] The “Francis Wright.” 385 judicial act restricting the power of proceeding by appeal, it must be regarded as still permitted and approved. Even, indeed, if positive restriction existed by law, it would, in my judgment, be superseded by the superior authority of the constitutional provision.” Mr. Chief Justice Ellsworth, however, Who spoke for the majority of the court, said: “ If Congress has provided no rule to regulate our proceedings, we cannot exercise an appellate jurisdiction; and if the rule is provided, we cannot depart from it. The question, therefore, on the constitutional point of appellate jurisdiction, is simply whether Congress has established a rule for regulating its exercise.” And, further on: “ It is observed that a writ of error is a process more limited in its effects than an appeal; but whatever may be the operation, if an appellate jurisdiction can only be exercised by this court conformably to such regulations as are made by the Congress, and if Congress has prescribed a writ of error, and no other mode, by which it is to be exercised, still, I say, we are bound to pursue that mode, and can neither make, nor adopt, another.” And again: “ But surely it cannot be deemed a denial of justice that a man shall not be permitted to try his cause two or three times over. If he has one opportunity for the trial of all the parts of his case, justice is satisfied; and even if the decision of the Circuit Court has been made final, no denial of justice can be imputed to our government; much less can the imputation be fairly made, because the law directs that, in case of appeal, part shall be decided by one tribunal and part by another, — the facts by the court below, and the law by this court. Such a distribution of jurisdiction has long been established in England.” This was the beginning of the rule, which has always been acted on since, that while the appellate power of this court under the Constitution extends to all cases within the judicial power of the United States, actual jurisdiction under the power is confined within such limits as Congress sees fit to prescribe. As was said by Mr. Chief Justice Marshall in Durousseau v. United States (6 Cranch, 307, 314), “ The appellate powers of this court are not given by the judicial act. They are given by the Constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on vol. xv. 25 386 The “Francis Wright.” [Sup. Ct. the subject.” The language of the Constitution is that “ the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as Congress shall make.” Undoubtedly, if Congress should give an appeal in admiralty causes, and say no more, the facts, as well as the law, would be subjected to review and retrial; but the power to except from — take out of— the jurisdiction, both as to law and fact, clearly implies a power to limit the effect of an appeal to a review of the law as applicable to facts finally determined below. Appellate jurisdiction is invoked as well through the instrumentality of writs of error as of appeals. Whether the one form of proceeding is to be used or another depends ordinarily on the character of the suit below; but the one as well as the other brings into action the appellate powers of the court whose jurisdiction is reached by what is done. What those powers shall be, and to what extent they shall be exercised, are, and always have been, proper subjects of legislative control. Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not. To our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than 85,000. The general power to regulate implies power to regulate in all things. The whole of a civil law appeal may be given, or a part. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is matter of legislative discretion, not of constitutional right. The Constitution prohibits a retrial of the facts in suits at common law where one trial has been had by a jury (Amendment, art. 7) ; but in suits in equity or in admiralty Congress is left free to make such exceptions and regulations in respect to retrials as on the whole may seem best. We conclude, therefore, that the act of Feb. 16, 1875, c. 77, is constitutional, and that under the rule laid down in The Oct. 1881.] The “Francis Wright.” 387 Abbotsford (98 U. S., 440), and uniformly followed since, our inquiries are confined to questions of law arising on the record, and to such rulings, excepted to at the time, as may be presented by a bill of exceptions prepared as in actions at law. 2. As to the questions arising on the bill of exceptions. It is undoubtedly true that if the Circuit Court neglects or refuses, on request, to make a finding one way or the other on a question of fact material to the determination of the cause, when evidence has been adduced on the subject, an exception to such refusal taken in time and properly presented by a bill of exceptions may be considered here on appeal. So, too, if the court, against remonstrance, finds a material fact which is not supported by any evidence whatever, an exception is taken, a bill of exceptions may be used to bring up for review the ruling in that particular. In the one case the refusal to find would be equivalent to a ruling that the fact was immaterial; and in the other, that there was some evidence to prove what is found when in truth there was none. Both these are questions of law, and proper subjects for review in an appellate court. But this rule does not apply to mere incidental facts, which only amount to evidence bearing upon the ultimate facts of the case. Questions depending on the weight of evidence are, under the law as it now stands, to be conclusively settled below and the fact in respect to which such an exception may be taken must be one of the material and ultimate facts on which the correct determination of the cause depends. In the present case the ultimate fact to be determined was whether the loss for which the suit was brought happened because of the insufficient refrigerating apparatus, or the unseaworthiness of the vessel. It is found in express terms that the loss was “ caused by the defective construction and working of the refrigerating room and apparatus connected therewith, either from inherent defects in said apparatus, or from not using a sufficient quantity of ice, and not by any fault of the claimants.” As to this both the Circuit and District Courts agree, This fact being established, it was unimportant to inquire whether the vessel was seaworthy or not. If the un-seaworthiness was not the proximate cause of the loss, it is not contended the vessel can be charged with the damages. 388 The “Francis Wright.” [Sup. Ct. But if it be conceded that the case depended on the seaworthiness of the vessel, we think the,exceptions which have been taken cannot be considered here. The only unseaworthiness alleged was in respect to the boiler, and as to this the court has found that the boiler was a tubular one; that tubular boilers are liable to leakage in the tubes; that such leakage does not necessarily interfere with the capacity or fitness of the boiler for the purposes of navigation ; that this particular boiler had one hundred and forty-four tubes; that some of these, tubes gave out from time to time and were plugged up; that when the vessel arrived at Philadelphia at the end of her voyage, twenty-six of the tubes had been plugged up, but that the boiler was still efficient and seaworthy. It was also found that the voyage from Galveston to Philadelphia was two days longer than was usually occupied hy well-equipped steamers, and that the vessel put back for repairs, by which an additional week’s time was lost at Galveston. The complaint now made is, that the court refused to state in its findings that there was leakage in the tubes and stoppage for repairs while the vessel was on her voyage from Philadelphia to Galveston, and while she was lying in the harbor at Galveston taking in her cargo, and that when the vessel put back to Galveston the engineer had not sufficient tools with which to make his repairs. All these are mere incidental facts, proper for the consideration of the court in determining whether the boiler and the vessel were actually seaworthy or not. It is not pretended that the question at issue was to be determined alone by the probative effect of these circumstances. They were part only of the evidence on which the ultimate finding depended, and occupy in the case the position of testimony rather than of the facts to which the law is to be applied by the judgment of the court. The refusal of the court to put such statements into the record, even though established by uncontradicted evidence, cannot properly be brought here by a bill of exceptions, unless it also appears that the determination of the ultimate fact to be ascertained depended alone upon the legal effect as evidence of the facts stated. Such, clearly, is not this case. Oct 1881.] The “Francis Wright.” 389 There is. another equally fatal objection to this bill of exceptions. An evident effort has been made here, as it has been before, to so frame the exceptions as, if possible, to secure a reexamination of the facts in this court. The transcript which has been sent up contains the pleadings and all the testimony used on the trial below. The bill of exceptions sets forth that at the trial the pleadings were read by the respective parties, and the testimony then put in on both sides. This being done, the libellants presented to the court certain requests for findings of fact and of law. These requests were numbered consecutively, sixteen relating to facts and three to the law. Afterwards, six additional requests for findings of fact were presented. It is then stated that the court made its findings of fact and of law and filed them with the clerk, together with an opinion in writing of the circuit justice who heard the cause. The libellants then filed what are termed exceptions to the findings and the refusals to find. In this way exceptions were taken separately to each and every one of the facts found and the conclusions of law, and to the refusal to find in accordance with each and every one of the requests made. The grounds of the exceptions are not stated. Many of the requests of the libellants are covered explicitly by the findings as actually made, some being granted and others refused. We have no hesitation in saying that this is not a proper way of preparing a bill of exceptions to present to this court for review rulings of the Circuit Court such as are now complained of. A bill of exceptions must be “ prepared .as in actions at law,” where it is used, “ not to draw the whole matter into examination again,” but only separate and distinct points, and those of law. Bac. Abr., Bill of Exceptions ; 1 Saund. Pl. & Ev. 846. Every bill of exceptions must state and point out distinctly the errors of which complaint is made. It ought also to show the grounds relied on to sustain the objection presented, so that it may appear the court below was properly informed as to the point to be decided. It is needless to say that this bill of exceptions meets none of these requirements. From anything which is here presented no judge would be presumed to understand that the specific objection made to any one of his findings was that no evidence what 390 The “Francis Wright.” [Sup. Ct. ever had been introduced to prove it, or to one of his refusals, that the fact refused was material and had been conclusively shown by uncontradicted testimony. No ground whatever is stated for any one of all the exceptions that have been taken. To entitle the appellants to be heard here upon any such objections as they now make to the findings, they should have stated to the court that they considered the facts refused material to the determination of the cause, and that such facts were conclusively proven by uncontradicted evidence. Under such circumstances it might have been permissible to except to the refusal and present the exception by a bill of exceptions, which should contain so much of the testimony as was necessary to show that the fact as claimed had been conclusively proven. And so if the exception is as to facts that are found, it should be stated that it w*as because there was no evidence to support them, and then so much of the testimony as was necessary to establish this ground of complaint, which might under some circumstances include the whole, should be incorporated into the bill of exceptions. In this way the court below would be fairly advised of the nature of the complaint that was made in time to correct its error, if satisfied one had been committed, or to put into the bill of exceptions all it considered material for the support of the rulings. From this it is apparent we cannot on this appeal consider any of the rulings below which have been presented by the bill of exceptions. 3. As to the sufficiency of the facts found to support the decree. Upon this branch of the case we have had no more difficulty than upon the others. The case made may be generally stated as follows : — The libellants, being about to engage in the business of transporting fresh beef by the use of a newly patented process, applied to the claimants for a charter of their steamer for six months, to be put into that trade. The claimants knew for what business the vessel was engaged, and the libellants knew that she was furnished with a tubular boiler. Such boilers are liable to leak, but that does not necessarily interfere Oct. 1881.] The “Francis Wright.” 391 with their capacity or fitness for the purposes of navigation. The charter-party contained this clause : — “ First, The said party of the first part agrees the said vessel, in and during the said voyage, shall be kept tight, stanch, well fitted, tackled, and provided with every requisite for such a voyage.” The charter-party makes no mention of the special business in which the vessel was to be engaged. She was chartered generally for six months to run between Philadelphia and New York and Galveston, or any intermediate safe port in the United States, or any foreign port not prohibited by the insurance. ’ The only complaint made as to her seaworthiness, is in respect to her boiler, and about this it is found that though to some extent leaking, as boilers of that class are liable to be, it was still efficient and seaworthy. The libellants fitted the vessel with the necessary apparatus for the use of their patented process, and with a full knowledge that her boiler was apt to leak, put a cargo of fresh beef on board to be taken from Galveston to Philadelphia. The vessel was twenty-three days in making that voyage instead of fourteen, which was the usual time of well-equipped steamers. The beef was spoiled before it got to Philadelphia, but it is expressly found that this was because of the defective construction and working of the refrigerating room, and the apparatus and machinery connected therewith, for which the claimants were in no respect responsible. Upon these facts the court below dismissed the libel, which we think was clearly right. That the vessel was in fact seaworthy is settled by the findings. All the claimants covenanted for was, that she was provided with every requisite for safe navigation. While they knew that her charterers intended to use her in connection with their contemplated business, it is neither found nor insisted that any higher degree of seaworthiness was required for that kind of transportation than any other, much less that the claimants knew it. Under these circumstances the language of the charter-party is to be construed only as an agreement that the vessel was seaworthy for the purpose of navigating such a voyage as she was chartered to make, without any regard to what she was to carry. 392 The “Francis Wright.” [Sup. Ct. The claimants did not contract that their vessel was in a condition to make her voyages in any particular time, but only to make them safely. They were not applied to for a vessel suitable for carrying fresh beef, but for one suitable for navigation generally between the designated ports and places. Such a vessel according to the findings they got. It was their fault alone if they did not apply for what they wanted. They took all the risks of the undertaking, except such as arose from the general unseaworthiness of the vessel when she was delivered into their possession, for after they got her she was to be subject to their entire control within the terms of the charter. If repairs were necessary to keep her in a seaworthy condition, while under the charter the claimants might be chargeable with the expense of making them, it would be the duty of the charterers to see that they were made, or to notify the claimants of what was required. The provision that the claimants were, to nominate and the charterers appoint the engineer, and that the appointment of the captain by the charterers should be subject to the approval of the claimants, did not affect the relation of the parties in this particular. Delays growing out of derangement in the machinery were to be deducted from the charter time, and the pay for the use of the vessel correspondingly reduced, but beyond that the owners were not to be bound if the vessel was actually seaworthy when delivered into the possession of the charterers under the charter. Affirmed. Oct. 1881.] Hewitt v. Phelps. 393 Hewitt v. Phelps. 1. From the decree of a State court rendered in 1874 an appeal was in 1876 taken to the Supreme Court, where, in 1877, the decree was reversed and the cause remanded, “ with leave to both parties to amend pleadings as they may be advised, and to take testimony, and for an account to be taken in accordance with the vjpws contained in the opinion ” of the court. On the day after the mandate was received in the court of original jurisdiction the defendant filed his petition, praying that, by reason of the citizenship of the parties, the cause be removed to the proper Circuit Court of the United States. Held, that neither the date when, nor the stage of the cause at which, the petition was filed precluded the removal under the act of March 3, 1875, c. 137. Jifkins v. Sweetzer (102 U. S. 177) distinguished. 2. A., and B., his wife, conveyed her separate property to a trustee upon trust for her use during her life, and in remainder in fee for the use of her children living at the time of her death. The deed reserves to her the power to sell and exchange the property, and declares “ that the trustee is to permit A., as agent for the trustee, and as agent and trustee for said B. during her life, and as agent and trustee for her children after her death, to superintend, possess, manage, and control the property for the .benefit' of all concerned.” The trustee was not to be responsible for "the acts or conduct of A. The latter was, however, for the purposes of the deed, to be a cotrustee, but neither had power to charge the property for any future liability beyond the support of A. during his life. A. survived B. and died insolvent. A bill was filed against the trustee and the child of B., alleging that upon A.’s order the complainant had advanced moneys and furnished supplies which were used for the benefit of the trust estate, and praying that it be subjected to the payment of the claim. Held, that the bill was properly dismissed. Appeal from the Circuit Court of the United States for the Southern District of Mississippi. The facts are stated in the opinion of the court. Mr. William L. Nugent for the appellants. Mr. James Z. George, Mr. Charles W. Clarke, and Mr. E. Jeffords for the appellees. Mr. Justice Matthews delivered the opinion of the court. Hewitt, Norton, & Company, the appellants, filed their bill in equity, April 17, 1869, in the Chancery Court of Washington County, Mississippi, against Phelps and wife, the appellees, and Jonathan Pearce, praying that certain real estate in that State, which had been conveyed by Sarah Vick to Pearce upon 394 Hewitt v. Phelps. [Sup. Ct. certain trusts, and of which Mrs. Phelps was the sole beneficiary, be charged with certain sums, which the appellants allege they had advanced to the trustee, and for which they claimed that the trust estate was liable. The appellees were served with process; Pearce was brought in by publication. The cause having been put at issue, the bill was, for want of equity, dismissed on final hearing, Nov. 7, 1874. From this decree an appeal was taken, but not until March 30, 1876, when it was thus removed to the Supreme Court of the State. It was disposed of in that Court May 21, 1877, by a decree reversing the decree of the court below, and remanding the cause, “ with leave to both parties to amend pleadings as they may be advised, and to take testimony, and for an account to be taken in accordance with the views contained in the opinion ” of the court, which is to be found reported under the name of Norton v. Phelps, 54 Miss. 467'. The mandate of the Supreme Court was filed in the Chancery Court of Washington County, June 7, 1877, and on the same day a petition for the removal of the cause to the Circuit Court of the United States for that district was presented by Phelps and wife, on the ground that at the time of the commencement of the suit they were citizens of Kentucky, and had continued so to be at all times since, the plaintiffs during the same period being citizens of Louisiana, which was granted, bond given and approved, and transcript filed in the Circuit Court on Aug. 4, 1877. On Nov. 20, 1877, the appellants moved to remand the cause, which the Circuit Court refused to do. This ruling of the court is first assigned for error under the present appeal. The contention of the appellants is that the Circuit Court had no jurisdiction to proceed with the cause, because, first, the suit was not pending at the time of the passage of the act of March 3, 1875, c. 137, nor thereafter brought, and, therefore, not within the purview of that act; and, second, because, at the time the removal was effected, the trial of the cause in the State court had already taken place, or at least begun and was in progress, whereas the act requires that the petition for removal shall be filed before the trial thereof. In our opinion neither of these positions is tenable. Whe Oct. 1881.] Hewitt v. Phelps. 395 ther, after final decree and before appeal is perfected, a purchaser of the subject of the suit is affected with the notice of lis pendens may be a question; although a distinction in this respect is made by some of the authorities between an appeal in equity and a writ of error, the latter being considered a new proceeding, not pending until service of citation, while the former is regarded as a step in the progress of the cause. But, in contemplation of the act above mentioned, there are and can be but two classes of suits: one, those pending at the time of its passage; the other, those thereafter brought. Of course, a suit terminated has ceased to be a suit. Confessedly the present is a suit, and could not be said, at the time the act was passed, to have ended, although the decree was final in respect to the Court of Chancery which had rendered it, and would have become so between the parties if no appeal had been taken within the time limited by law. But until that period had elapsed it was still a lis pendens, in the sense that the party against whom the decree had been rendered had the right by an appeal further to prosecute it. It was not the beginning of a new suit: it was but one additional step in the progress of an existing one. The second ground of exception to the removal of the cause is maintained in argument upon the authority of Jifkins v. Sweetzer (102 U. S. 177); but that case does not govern this. That decision turned upon the fact that the judgment of the Supreme Court of the State “ disposed of the case finally upon its merits, and nothing remained to be done but to continue the hearing already begun until the necessary accounts could be taken, and the details of a final decree settled.” But here, although the Supreme Court of Mississippi passed in its opinion upon the merits of the case, as disclosed by the record then before it, nevertheless, in remanding the cause, “ with leave to both parties to amend pleadings as they may be advised, and to take testimony,” the whole matter was open and at large, as though the cause had never been at issue; and the clause providing “ for an account to be taken in accordance with the views contained in the opinion rendered herein,” must be understood as qualified by the previous part of the order, and as obligatory Upon the Court of Chancery only as a declaration of general 396 Hewitt v. Phelps. [Sup. Ct. principles, to be applied as the facts should thereafter appear. It was not a judgment which operated as an estoppel between the parties. It was neither final nor conclusive. In point of fact, after the removal of the cause into the Circuit Court the parties availed themselves of the leave granted, and filed new and amended pleadings. The cause then stood in that court just as it would have stood in the State court, but for the removal ; i. e., for a rehearing upon the merits, and not for the purpose of merely executing the judgment of the appellate court, as in the case of Duncan v. Gregan, 101 U. S. 810. Being properly removed, the parties are subject to that administration of law which is approved in the judicial tribunals of the United States, whose jurisdiction is thus invoked, as was held in King v. Worthington, 104 id. 44. The Circuit Court having acquired jurisdiction, on final hearing, upon demurrer, dismissed the bill. We are now required by the appeal to review that decree. The allegations upon which the alleged equity of the appellants is supposed to arise are, in substance, as follows: — On May 4, 1850, Sarah Vick and Henry W. Vick, her husband, executed and delivered to Jonathan Pearce a deed, conveying to him all the property which she then owned as separate property, including a plantation, slaves, utensils, and stock in Washington County, Mississippi, the subject of the present suit, upon trust, nevertheless, for her sole and separate use during her life, and in remainder in fee for the use of her children living at the time of her death. It was provided that the proceeds of the property in Washington and Issaquena Counties, and such parts of it as might be sold, should be applied to the payment of a debt due to the Bank of the United States, after the payment of which, the proceeds, over what was necessary to support the plantation and family, were to be invested for the benefit of all her children living at the time of her death. It was also provided that she should retain possession of the property during her life, with power to sell or exchange any part, but any property received in exchange, to be subject to the trusts; “ provided further,” the deed continued, “ that said trustee is to permit the said Henry W. Vick, as agent for said trustee, and as agent and trustee for said Sarah Oct. 1881.] Hewitt v. Phelps. 397 Vick, during her life, and as agent and trustee for her children after her death, to superintend, possess, manage, and control said property for the benefit of all concerned: said Henry W. Vick is to have power to sell and exchange said property after the death of said Sarah Vick, and apply the proceeds to the payment of the debt due to the trustee of the Bank of the United States; or, if the said debt is paid, the proceeds of the debt to be reinvested and be subject to the trusts of this deed.” Provision is then made for applying a fund due to her from property in the hands of Colonel Durden, held by him in trust for creditors of Colonel Vick, to the payment of certain debts due from Henry W. Vick, but, it is added, “ all the debts (aforesaid) to be paid by Colonel Vick, if he is able to do so, and it is only in case he is not able that it is to be paid out of said fund; provided, further, that said property is always to stand charged for the payment of such amount for the liberal support and maintenance of the said Henry W. Vick during his natural life.” The concluding clause in the deed is as follows: “ My intention is, that said Henry W. Vick shall be regarded for the purposes of this deed, not merely as an agent, but also a co-trustee, and I desire he may be required to give no security for the performance of his duties, and the said Jonathan Pearce is not in any manner to be responsible for the acts or conduct of said Henry W. Vick.” Henry W. Vick carried on the business of the plantation until he died in 1861, when Pearce, as trustee, took possession of the trust property; Mrs. Vick, having previously died, leaving no issue surviving her, except Mrs. Phelps, one of the appellees, Hewitt, Norton, & Co., commission-merchants in New Orleans, claim a balance due to them from Pearce, as trustee, of $7,631.16, which they insist is a charge in equity upon the trust estate. From statements of the account, contained in the bill and amendments and exhibits, it appears that the whole of this balance resulted from transactions with H. W. Vick, while conducting the business of the plantation, prior to April 25, 1861. In a petition addressed by Pearce to the judge of the Probate Court of Washington County, Nov. 28,1865, and made 398 Hewitt v. Phelps. [Sup. Ct. an exhibit to the original bill, he states those transactions as resulting in a balance of $6,145.99, due to the appellants, which, with $4,231.82, accruing from transactions with himself as trustee, make $10,377.81, the amount of the balance of the account which they state as due them June 30, 1862. The subsequent credits were all for moneys received from Pearce, and reduced the balance, Oct. 3, 1866, to the amount claimed in the bill, being less than the amount due at the death of Vick, with interest added. This analysis of the accounts shows that the whole claim is covered by the transactions with Vick, and is not embraced in those had with Pearce, all the debts incurred by the latter being cancelled by payments made by him. It is alleged, however, that the balance due at Vick’s death was carried forward in account with Pearce as a charge against him, with his consent and approval; and that when he took possession of the trust, estate he received and used for the benefit of the estate, clothing, provisions, and other supplies which had been furnished or paid for by the firm upon Vick’s orders; and it is charged in the bill “that all the items charged in your orators’ said account for money loaned and supplies furnished were necessary and proper under the deed of Sarah Vick, and-the said money and supplies were applied to the use and benefit of the trust estate, and upon a settlement of the accounts of the said Jonathan Pearce he would have had the right to charge the same against the said estate, and the balance due to him by said estate would have been and would now be, equal in amount to the debt now claimed by your orators,” &c. It is also alleged that Henry W. Vick, at the date of the deed, was a man of no means, property, or credit; that he continued in the same condition until his death; and that Pearce, when he took possession, was in the same financial condition, and a resident citizen of the State of Kentucky. At the death of Mrs. Vick her daughter, now Mrs. Phelps, was unmarried and a minor, and Jonathan Pearce became her guardian. On Nov. 28, 1865, he filed his final account as guardian and trustee in the Probate Court of Washington County, showing a balance due to the estate from him of $2,939.40, and reporting, as heretofore stated, the account Oct. 1881.] Hewitt v. Phelps. 399 between himself, as trustee, and the appellants. His account as guardian was settled by an order of the court in January, 1866, and he received credit for an allowance by way of compensation for his services in excess of the balance due from him. It is charged in the bill that at this settlement Pearce admitted the balance to be due to the appellants as claimed, and that he surrendered possession to Phelps and wife upon an understanding and agreement with them that the debt should be paid out of the cotton crop then growing on the lands. It is manifest that the deed of trust from Mrs. Vick to Jonathan Pearce does not confer upon him or upon Henry W. Vick any power to charge the estate directly with the payment of any sums of money for any purpose whatever, with the single exception of a personal support and maintenance for the latter. The grantor charges it with the payment of certain specified obligations, and there is no evidence of an intention to permit it to be incumbered by the trustee or by Vick. It is to be noted also that Jonathan Pearce is a trustee merely of the title, without any active duties in regard to the estate. The power to sell or exchange during his own lifetime the grantor reserves to herself, and after her death directs that it be exercised solely by her husband surviving her. All powers to superintend, possess, manage, and control the property are conferred exclusively upon Henry W. Vick, “ as agent for said trustee and as agent and trustee for said Sarah Vick during her life, and as agent and trustee for her children after her death ; ” but to be regarded for the purposes of this deed, not merely as an agent, but also as a co-trustee. “ And the said Jonathan Pearce is not in any manner to be responsible for the acts or conduct of said Henry W. Vick.” So that, while Pearce was trustee of the title merely, Vick was a cotrustee, having no title or estate in the property, but charged with all the active duties of management. After the death of Mrs. Vick, Pearce’s sole duty in regard to the trust estate was to convey the title to the surviving children. By these provisions the power of either to create a charge upon the trust estate seems to be effectually excluded. It follows also from these provisions of the deed of trust, and the facts recited as to the origin and nature of the appellants’ 400 Hewitt v, Phelps. [Sup. Ct. account, that no equitable charge against the estate can be established through the supposed liability of Pearce. It is quite plain that he was never personally answerable for the obligations created by Vick, and his alleged assumption of the account may be rejected as incompetent to create any such liability upon his part. Neither his admission nor that of the appellees could, in contemplation of law, create any charge upon the estate; and, as trustee, he could not establish it as necessary to his own exoneration. The appellants, then, can reach the estate only, if at all, through their claim against Vick. For this purpose he may be regarded as an independent trustee, authorized to do whatever was necessary and proper in the performance of his duty to superintend and manage the trust property* He was undoubtedly personally bound for all his contracts made in that character. The question is, Does his insolvency create an equity in behalf of the appellants, to reach the estate, for the benefit of which the advances are admitted to have been made ? On this point the law prevailing in Mississippi, and governing the case, was well declared, we have no doubt, by the Supreme Court of that State in Norton v. Phelps, 54 Miss. 467, 471: “In the case of' Clopton v. G-holson (53 id. 466) we announced the principles applicable to this case. These are, that persons dealing with a trustee must look to him for payment of their demands, and that, ordinarily, the creditor has no right to resort to the trust estate to enforce his demand for advances made or services rendered for the benefit of the trust estate. But, while this is the rule, there are exceptions to it; and where expenditures have been made for the benefit of the trust estate, and it has not paid for them, directly or indirectly, and the estate is either indebted to the trustee or would have been if the trustee had paid, or would be if he should pay the demand, and the trustee is insolvent or non-resident, so that the creditor cannot recover his demand from him, or will be compelled to follow him to a foreign jurisdiction, the trust estate may be reached directly by a proceeding in chancery.” The ground and reason for this rule are, that the trustee has an equity of his own, for reimbursement for all the necessary expenses to which he has been put in the administration of his Oct. 1881.] Hauselt v. Harrison. 401 trust, which he can enforce by means of the legal title to the trust estate vested in him; and that his creditor, in the cases supposed of his insolvency or absence from the jurisdiction, may resort to the equity of the trustee, upon a principle of equitable substitution or attachment, for his own security. It would not apply against the trust estate in this case for the enforcement of a debt created by Vick, for the reason that he had no title to the property; but adopting it and applying it as though he had, it is equally plain that the appellants have established no right to the relief prayed for. What, at the time of his death, may have been the state of the account between the trust estate and Henry W. Vick does not appear. There is no allegation on the subject in the record. For aught that appears, he may have had in his hands means enough belonging to the estate to satisfy all demands against it; he may, indeed, have been largely in debt to it. The case, in any of its aspects, clearly is not within the rule; and the effort to reach the estate through Pearce, instead of Vick, for the reasons already stated, must fail. These are the grounds upon which the Circuit Court proceeded in the decree complained of. We find no error in the record, and the decree is accordingly Affirmed. Hauselt v. Harrison. A. entered into a written contract with B., whereby, in consideration of moneys advanced by the latter for the purchase of skins, he agreed that he would tan, finish, and deliver them to B. B., in consideration of a commission on sales, and a further percentage to cover insurance, storage, and labor, agreed to sell them, and put the proceeds, less his commissions and advances, at the disposal of A. It was further agreed that all Jhe skins, whether green, in the process of tanning, tanned, or tanned and finished, should be considered as security for refunding the moneys advanced. The business was, for about six months, carried on until A. became unable, from sickness and financial embarrassment, to proceed with it, and he was then indebted to B., who was aware of his condition. They, in order to carry out the first contract, entered into another, whereby B. was to take possession of A.’s tannery, and run and use it with such materials there as would be necessary to finish and complete the skins, and sell them, the net proceeds to be put to the credit of A. after vol. xv. 26 402 Hauselt v. Harrison. [Sup. Ct. deducting advances and expenses. A., four days thereafter, filed his petition in bankruptcy. B. took possession of the tannery, and A.’s assignee in bankruptcy brought replevin for the skins. Held, 1. That A. had not an unqualified property in them, but they were subject to a charge in the nature of a mortgage in favor of B., which was binding on the parties and A.’s assignee in bankruptcy. 2. That the second contract was not fraudulent, within the meaning of the bankrupt law. Error to the Circuit Court of the United States for the Western District of Pennsylvania. The facts are stated in the opinion of the court. Mr. Lewis Sanders for the plaintiff in error. Mr. M. F. Elliott and Mr. H. C. Parsons for the defendant in error. Mr. Justice Matthews delivered the opinion of the court. This was an action of replevin, brought Feb. 20, 1875, by Jefferson Harrison, assignee in bankruptcy of Edward Bayer, against Charles Hauselt and Charles Korn, to recover possession of certain tanned skins, part finished and part unfinished, and bark, which, it is alleged, had been transferred by Bayer to them, in fraud of the bankrupt law. There was a judgment in his favor, to reverse which this writ of error is prosecuted. Bayer, who, upon his own petition, filed Nov. 10, 1874, was adjudicated a bankrupt Jan. 18, 1875, owned and was possessed of a tannery at Tioga, Pa., at which he had been conducting the business of a tanner; and Hauselt was a leather-merchant in New York. On the day of its date, they entered into an agreement in writing, as follows : — “ Articles of agreement entered into this twenty-ninth day of May, 1874, between Edward Bayer, of Brooklyn, New York, party of the first part, and Charles Hauselt, of New York City, party of the second part, witnesseth: — “ In consideration of certain moneys advanced, at the rate of seven per cent per annum, to the party of the first part, for the purchase of veal and kip skins to be tanned, curried, and finished by one Charles Korn, the party of the first part hereby agrees to send all the skins so tanned, curried, and finished by the said Charles Korn, said skins to be labelled and stamped with a label and stamp Oct. 1881.] Hauselt v. Harrison. 403 bearing the name of said Charles Korn, the skins to be in every way so finished as those now known in the New York market as the ‘ Korn skin,’ exclusive to the party of the second part, he being sole agent for the so-called ‘Korn skin’ in the United States, in consideration of a commission of five per cent of proceeds of all sales and a further one per cent to cover fire insurance, storage, and labor; the said party of the second part agrees to sell all such skins to be sent him at the best market prices, the wholesale or case price only to be taken as an average in account sales, small sales to be taken to own account at same price; the party of the second part further agrees to place all proceeds of sales of said skins, after deduction of aforementioned commission and advances for the purchase of veal and kip skins, at the disposal of the party of the first part, for his own use and benefit. “ And it is further agreed that all the skins, whether green, in process of tanning, tanned, or tanned and finished, shall be considered as security for the refunding, with interest, of all the moneys advanced by the party of the second part, and that all the skins shall be insured for their full value in good companies only. “ Signed, sealed, and delivered on the day and year above written. “ Edw’d Bayer. “ Charles Hauselt, “ Witness: By E. Hauselt, AtCy. “Frederick E. Shearer.” The business contemplated by this contract was carried on, according to its terms, until Nov. 6, 1874. During that time Hauselt had made large cash advances and had received some tanned hides, but on that date was largely in advance, in excess of receipts, and in excess of the value of the property replevied. Bayer, having become broken in health and financially embarrassed, informed Hauselt of his condition, and that, in consequence, he could proceed no further in the execution of the contract between them, and could not otherwise repay his advances. Thereupon the parties entered into the following agreement: — “This agreement, made the sixth day of November, 1874, between Edward Bayer, of the city of Brooklyn, State of New York, party of the first part, and Charles Hauselt, of the city, county, and State of New York, party of the second part, witnesseth : — 404 Ha us elt v. Harrison. [Sup. Ct. “ That whereas an agreement was entered into by the parties hereto on the twenty-ninth day of May, 1874, whereby the party of the first part was, among other things, to tan, finish, and deliver to the party of the second part veal and kip skins purchased in the raw by moneys advanced by the party of the second part; and whereas the party of the first part has become ill and physically unable to complete the tanning and finishing the skins now on hand at the tannery of the party of the first part, and in order that said contract or agreement may be carried out, it is hereby agreed, and the party of the second part is hereby authorized to take immediate possession and sole control of tannery, buildings, and outhouses connected therewith, of the party of the first part, in Tioga Township, Pennsylvania, and run and use the same, together with such of the materials on hand as may be necessary to finish and complete said skins now on hand in said tannery, &c., and to take possession of and sell said skins in any state as may be to the best advantage of the parties hereto, all sales guaranteed by the parties of the second part, the net proceeds of all said sales to be passed to the credit of the party of the first part, after deducting advances and expenses of finishing said skins as per the terms of said agreement. “ In witness whereof the parties hereto have hereunto set their hands and seals the day and year first above written. “ Edw. Bayer. [seal.] “Charles Hauselt. [seal.] “ T. H. Brorman, Atfy. “ Signed, sealed, and delivered in the presence of “ C. H. Seymour.” In pursuance of this arrangement, Hauselt immediately took possession of the tannery and held the property replevied at the time this action was brought. It may be assumed that at the date of the second contract Hauselt had knowledge of Bayer’s insolvency and of his intention immediately to file his petition in bankruptcy. The court below charged the jury, in substance, as follows: That the property in the skins purchased by means of the advances under the contract of May 29, 1874, was in Bayer; that Hauselt had no right to the possession of them at any time while they were in the process of manufacture; that the only security given by the contract was the personal obliga Oct. 1881.] Hauselt v. Harrison. 405 tion of Bayer to consign them to Hauselt for sale, when the manufacture was complete ; that the contract of Nov. 6, 1874, and the possession delivered and taken in pursuance of it, was a transfer, to which Hauselt was not entitled, and constituted a preference within the meaning of the bankrupt law ; that if it was made to make and obtain payment of the whole of the debt to Hauselt, Bayer being in fact insolvent, and Hauselt having reasonable cause to believe him to be so, the transaction was fraudulent and void, and the verdict should be for the plaintiff. These charges were duly excepted to and are now assigned for error. Notwithstanding the differences between the contract of May 29, 1874, and that considered in Powder Company v. Burkhardt (97 U. S. 110), it must be conceded that the legal title to the skins purchased with the money advanced by Hauselt vested in Bayer. But it was not an unqualified property. We cannot agree with the Circuit Court in the construction, that the only security given to Hauselt by the contract was the personal promise of Bayer that he would perform it. To limit the contract to that extent is to deprive its last provision of all force ; for, without it, the personal obligation to deliver the skins when tanned would still remain. The clause providing for security must be held to mean something; and it declares that the skins themselves, before delivery of possession to Hauselt under the contract, for purposes of sale, shall be considered as security. It was decided in Gregory v. Morris (96 U. S. 619) that the legal effect of such a contract is to create a charge upon the property, not in the nature of a pledge, but of a mortgage. Such a lien is good between the parties, without a change of possession, even though void as against subsequent purchasers in good faith without notice, and creditors levying executions or attachments; and if followed by a delivery of possession, before the rights of third persons have intervened, it is good absolutely. Nor can it be reasonably doubted that this equitable lien was capable of enforcement. If Bayer had, in disregard and violation of his agreement, undertaken to divert the skins, 406 Hauselt v. Harrison. [Sup. Ct. whether in a finished or unfinished state, to some other and unauthorized use, it would have been in fraud of the rights of Hauselt, and a court of equity would not have hesitated by an injunction to prevent the commission or continuance of the wrong. Bayer would, under such circumstances, be treated by a court of equity as a trustee, fraudulently dealing with and misappropriating trust property, and Hauselt would be protected in his rights, as owner of a beneficial interest in the property, entitled to the enjoyment of the specific fruits of the agreement. “ Indeed,” says Story (Eq. Jur., sect. 1231), “ there is generally no difficulty in eqrfity in establishing a lien not only on real estate, but on personal property or on money in the hands of a third person, wherever that is a matter of agreement, at least against the party himself, and third persons who are volunteers or have notice. For it is a general principle in equity that, as against the party himself, and any claiming under him voluntarily or with notice, such an agreement raises a trust.” If, in consequence of his bankruptcy, the property had come into the possession of his assignees, they would have taken it subject to all legal and equitable claims of others not in fraud of the rights of general creditors. They would be affected by all the- equities which could be urged against him. Cook v. Tullis, 18 Wall. 332. In Yeatman v. Savings Institution (Wo U. S. 764) it was held to be an established rule that, “ except in cases of attachments against the property of the bankrupt within a prescribed time preceding the commencement of proceedings in bankruptcy, and except in cases where the disposition of property by the bankrupt is declared by law to be fraudulent and void, the assignee takes the title, subject to all equities, liens, or incumbrances, whether created by operation of law or by act of the bankrupt, which existed against the property in the hands of the bankrupt. ... He takes the property in the same ‘ plight and condition ’ that the bankrupt held it. Winsor v. McLellan, 2 Story, 492.” In Stewart n. Platt (101 U. S. 731), it was held that, although the chattel mortgages, involved in that litigation, by reason of the failure to file them in the proper place, were void as against judgment creditors, they were valid and effective as between the parties. Oct. 1881.] Hauselt v. Harrison. 407 Mr. Justice Harlan, delivering the opinion of the court, said: “ The assignee took the property subject to such equities, liens, or incumbrances as would have affected it had no adjudication in bankruptcy been made. . . . The latter [the assignee] representing general creditors, cannot dispute, such claim, since, had there been no adjudication, it could not have been disputed by the mortgagors. The assignee can assert in behalf of the general creditors no claims to the proceeds of the sale of that property which the bankrupts themselves could not have asserted in a contest exclusively between them and their mortgagee.” • It follows that, Bayer becoming a bankrupt while in possession of the skins purchased, and in the tannery, under the contract of May 29, 1874, if his assignee in bankruptcy had taken possession of them, he would have done so, subject to the terms of that contract; and Hauselt would have had the right to require, either that he should perform the contract to its termination, so far as the skins then on hand were concerned, by finishing them, and forwarding them for sale; or that he should surrender possession to Hauselt, under some arrangement, mutually beneficial, whereby the enterprise might be wound up, under his management, such as that actually made by Bayer, on Nov. 6, 1874; or if the assignee sold the property in the condition in which he received it, that he should account to Hauselt specifically for the proceeds of the sale, and recognize him as a creditor for the remainder of his advances, not thereby refunded. Such being the mutual rights of the parties, the transaction of Nov. 6, 1874, though made with knowledge of Bayer’s insolvency, and in contemplation of his bankruptcy, if made in good faith, as it is admitted to have been, for the purpose of securing to Hauselt the benefits of the contract of May 29, 1874, was legitimate, and did not constitute, as was held by the Circuit Court, an unlawful preference in fraud of the bankrupt law. It is quite true that Hauselt could not have compelled Bayer, by an action at law, to deliver to him possession of his tannery and its contents; nor could he have recovered possession of the skins, tanned or untanned, by force of a legal title; but it is equally true that, in equity, he could, by injunc 408 Hannibal v. Fauntleroy. [Sup. Ct. tion, have prevented Bayer from making any disposition of the property, inconsistent with his obligations under the contract; and upon proof of his inability or unwillingness to complete the performance of his agreement the court would not have hesitated, in the exercise of a familiar jurisdiction, to protect the interests of Hauselt, by placing the property in the custody of a receiver for preservation, with authority, if such a course seemed expedient, in its discretion, to finish the unfinished work, and ultimately, by a sale and distribution of its proceeds, to adjust the rights of the parties. For these reasons, we think the court below erred in its charges to the jury. The judgment will, therefore, be reversed, with instructions to grant a new trial; and it is So ordered. Hannibal v. Fauntleroy. In a suit upon city bonds, which recite that they are issued to pay its subscription, the validity of which depended on its ratification “ by a majority of the taxpayers,” the plaintiff offered in evidence, 1, the poll-books of an election held for that purpose and to elect city officers, for whom no person other than a taxpayer could lawfully vote, and which contain the name of every voter, with the record of his vote on the question, and show a majority of votes cast in favor of the ratification; 2, the proceedings of a meeting of the city council, whereat that fact was shown to their satisfaction by the certificate of the officers of the election, and the bonds ordered to be issued. Held, that the offered evidence is competent, and that the plaintiff was not bound to sustain the record by proof that each person voting was thereunto lawfully entitled. Error to the Circuit Court of the United States for the Eastern District of Missouri. The facts are stated in the opinion of the court. Mr. Chester H. Krum, with whom was Mr. J. M. Krum, for the plaintiff in error. Mr. James Grant for the defendant in error. Mr. Justice Matthews delivered the opinion of the court. This was an action brought by Fauntleroy, the defendant in error, a citizen of Virginia, against the city of Hannibal, a Oct. 1881.] Hannibal v. Fauntleroy. 409 municipal corporation of Missouri, to recover the amount of principal and interest alleged to be due on certain bonds and coupons. The bonds are dated April 1,1858, for $1,000 each, and are payable twenty years after date to A. O. Nash, auditor of said city, or bearer, at the American Exchange Bank, New York, for value received, without defalcation, with interest at the rate of ten per cent per annum, payable semi-annually, on the first day of October and April in each year, upon presentation of the annexed coupons severally, until the payment of the principal sum. They purport on their face to have been issued by the city to pay calls on subscription for stock in the Pike County Railroad, Illinois. They contain no other recitals. They were issued, it is claimed, under the authority of an act of the legislature of Missouri, passed Feb. 27, 1857, to amend the charter of the city, the third section of which reads as follows: —- “Sect. 3. Said city council shall have power to subscribe for and take stock in any railroad terminating at the city of Hannibal or upon the bank of the Mississippi River opposite to said city in the State of Illinois. But before such subscription shall be valid, it shall be ratified by a majority of the taxpayers, at a poll to be opened for that purpose.” The second section of the same act provides that “ said council shall also have power to borrow on the credit of the city and to pledge the revenues and public property for the payment thereof; but a greater rate of interest than ten per cent shall not be paid on any sum borrowed, unless two-thirds of the qualified voters of said city, at polls to be opened for that purpose, shall instruct the payment of a greater rate.” It is, therefore, not denied that the bonds are binding obligations upon the municipal corporation, provided the subscription to the stock of the Pike County Railroad, in payment of which they were issued, was lawfully made; and no question is made as to the validity of this subscription, except that it was not ratified, as is claimed, by a majority of the taxpayers, in accordance with the provisions of the third section of the amended charter. It appears that, at a called meeting of the city council 410 Hannibaj. v. Fauntleroy. [Sup. Ct. of the city of Hannibal, held on Oct. 22, 1857, an ordinance was duly passed authorizing and directing the subscription of $100,000 stock in the Pike County Railroad, as follows: — “ Be it ordained by the city council of the city of Hannibal, as follows: — “ Sect. 1. That the mayor of the city of Hannibal be, and is hereby, authorized and directed to subscribe for and take for the city of Hannibal, one hundred thousand dollars stock in the Pike County Railroad, having its western terminus on the bank of the Mississippi River, at a point in the State of Illinois opposite the city of Hannibal, within a one-half mile of the western terminus of Suy Carty Plank Road; said stock to be paid for in the bonds of the city of Hannibal at their par value, which bonds are to be made payable not exceeding twenty years from the date of their issue, and are to bear ten per cent interest per annum, payable semiannually. “ Sect. 2. That the mayor be, and is hereby, directed to cause a poll to be opened in said city of Hannibal for the purpose of obtaining the ratification of the foregoing said subscription of one hundred thousand dollars stock in said Pike County Railroad by the taxpayers of said city of Hannibal, in accordance with the provisions contained in the third section of an act passed by the General Assembly of the State of Missouri, entitled ‘ An Act to amend the charter of the city of Hannibal,’ approved February 27th, 1857. « Sect. 3. This ordinance to take effect from and after its passage.” On the trial of the cause in the Circuit Court, the plaintiff, recognizing his obligation to prove affirmatively that the bonds in question had been issued under the authority of the law, introduced in evidence the poll-books of an election held at voting places in the three wards of the city, on the first Monday (the second day) of November, 1857, for the purpose of electing a mayor, marshal, recorder, and attorney for said city, three councilmen for each ward, and for the ratification of the subscription of $100,000 of stock in the Pike County Railroad. These poll-books contain the name of every voter, with a record of his vote, whether for or against ratification, and are authenticated by the certificate of the Oct. 1881.] Hannibal v. Fauntleroy. 411 judges and clerks of the election, stating the result, and specifying in their return, under the head “ for ratifying the subscription of $100,000 stock in Pike Co. Railroad,” the number of votes cast in favor of and against the ratification. The result as shown by these poll-books, in the aggregate, was that three hundred and sixteen votes were cast in favor of, and thirty-two against, the ratification. At a called meeting of the city council of the city, on Nov. 4, 1857, it is recorded, that the clerk read to the city council the certificate of the mayor and one judge of the election from each ward in the city, whereby it was shown to the satisfaction of the council that at the municipal election held in the several wards on Monday, Nov. 2,1857, certain persons named therein had been duly elected to the several offices therein specified, and thereupon it was resolved that certificates be made out and delivered to the officers elect, and at the conclusion of the entry upon the record there is the statement, — “ for ratification, three hundred and sixteen votes; against, thirty-two votes.” At a regular meeting of the city council on Dec. 7, 1857, it is recorded, that, “ on motion of Mr. Dowling, resolved, that the mayor be, and he is hereby, authorized and instructed to issue the bonds‘of the city to the Pike County Railroad, in accordance with calls on the capital stock made by order, of the board of directors, and in pursuance of an ordinance approved October 22d, 1857.” The stock subscribed for was duly issued to the city, and is still held by it; and the corporation has continuously exercised the privileges of a stockholder, though it is admitted that the stock has no pecuniary value. It was also proven that, in various ways, prior to the institution of this suit, the city had admitted her liability upon these bonds by making arrangements for the payment of coupons as they fell due, receiving them in payment of taxes, permitting judgment to be rendered on account of unpaid coupons, once by consent and once by default; but the city objected to the whole evidence on the ground that it was insufficient to establish such liability, because it failed to show a ratification of the subscription by a vote of a majority of taxpayers at an election called and held for that purpose. 412 Hannibal v. Fauntleroy. [Sup. Ct. The answer to this objection, however, is found in the provisions of art. 1, sect. 10, of the charter of 1851, of the city (Laws of Missouri, 1851, p. 327), admitted to have been in force at the time, which defined the qualification of voters as follows: — “ Sect. 10. All free white male citizens, who have arrived at the full age of twenty-one years, and who shall be entitled to vote for State officers, and who shall have resided within the city limits at least six months next preceding any election, and, moreover, who shall have paid a city tax or any city license according to ordinance, shall be eligible, and entitled to vote at any ward or city election for officers of the city.” It thus appears that no person could lawfully vote at the election held Nov. 2, 1857, for city officers, except taxpayers; and assuming that the list of names contained in the pollbooks as having voted for or against the ratification of the subscription to the stock in the Pike County Railroad are those of the same persons who voted for city officers, it follows that they must all have been taxpayers, on the presumption, which certainly must be applied, that they were all legally entitled to vote. It is argued that the legislature used the word “ taxpayers,” in the third section of the act of 1857, in a sense designedly differing from that of “ qualified voters,” in the second section, who are to decide upon the question of the rate of interest on money borrowed in excess of the ten per cent per annum. We see no evidence, however, of such an intention. On the contrary, that supposition would necessitate the conclusion that by the word “ taxpayers” the legislature meant to include persons not otherwise qualified to vote; for example, not free white male citizens, minors, women, married and unmarried, and non-residents. The reasonable interpretation is, that the question of ratifying the subscription should be submitted to the vote of the taxpayers of the city, having the qualification otherwise of lawful voters; and this included, as we have seen, all the qualified voters of the city. To allow the present objection to prevail would require the plaintiff, not only to show that the persons voting to ratify the Oct. 1881.] Hannibal v. Fauntleroy. 413 stock subscription were all taxpayers, but also that they had all the other requisite qualifications of persons entitled by law to vote. In our opinion, the law imposes no such unreasonable burden upon the owner of such bonds. He is bound to show, in the absence of recitals that prevent its denial, that the corporation issued them, in the exercise of a power conferred by law; and where that can arise only in consequence of the performance of a condition precedent, such as the result of an election by a public vote, he has the burden of proof to show the fact. That fact, as in the present case, is fully proven by an exhibition of the record, which shows on its face the result claimed. He is not bound to sustain the truth of the record, as if it were the case of a contested election, and prove that the majority, on the existence of which his rights rest, consisted of persons, all of whom possessed the qualification of voters. Whether each voter was lawfully such, was a question in the first place, in the present case, for the judges of the election, who were appointed under the law, for,the express purpose of receiving and deciding upon their votes; and, in the second place, for the city council, to whom the official return of the election and of its result was made, as required, and who were authorized to act upon that result as certified to and verified by themselves, in the very matter of consummating the subscription, which was the subject of the vote. It would be impracticable for any purchaser of the bond, put on inquiry, as to the authority of the city council to make the issue of the bonds in question, to make inquisition into the facts of the election, beyond these returns and records; and it is but reasonable to permit him safely to rest his rights upon them, as they appear. They show the fact, that the subscription to the railroad stock was ratified by a majority of the voters, presumed to be qualified to vote, because permitted by the authorities controlling the election to do so, at an election held for the purpose, among other things, of deciding that question; and that fact constitutes the condition on which the authority to issue the bonds, by law, depends, and is the guarantee of their validity. Judgment affirmed. 414 United States v. Emholt. [Sup. Ct. United States v. Emholt. 1. At the hearing in the Circuit Court of an appeal from the District Court, the district judge who rendered the decision appealed from cannot, under sect. 614 of the Revised Statutes, give a vote, even by consent of parties, when another judge is present; and the case cannot be brought to this court upon a certificate of division of opinion between him and the other judge. 2. An information for a forfeiture under the internal revenue laws cannot be brought from the Circuit Court to this court by appeal. Appeal from the Circuit Court of the United States for the Western District of Wisconsin. This was an information, for the forfeiture of the right, title, and interest of Severin Schulte in certain real estate on which he carried on the business of a distiller, without Laving given bond as required by law, and with intent to deprive the United States of the tax on the spirits distilled by him. In the District Court, held by Judge Bunn, Bernard Emholt and Eliza Bergener appeared and answered as claimants of the real estate under mortgages from Schulte. Upon the trial it was found by special verdict that Schulte was guilty as charged in the information, and that he held the legal title to the real estate, subject to a mortgage to each of the claimants; judgment was given that the mortgages constituted no lien or incumbrance against the United States, and that all the real estate be forfeited ; and the claimants appealed to the Circuit Court. In the Circuit Court, held by Mr. Justice Harlan and Judge Bunn, the judgment was reversed ; and a certificate, signed by Mr. Justice Harlan only, was entered of record, stating that the hearing upon the special verdict found in the District Court was, by consent of parties, had before the circuit justice and the district judge, and that they were divided in their opinion on the question whether, upon the facts found in the special verdict, the United States was entitled to judgment forfeiting the property described in the information to the use of the United States, except subject to the interest and claim of the claimants, as set out in their answers. From the judgment of the Circuit Court the district attor Oct. 1881.] United States v. Emholt. 415 ney, on behalf of the United States, claimed an appeal to this court, which was allowed. The Solicitor-General for the United States. Mr. George C. Hazelton and Mr. S. U. Pinney, contra. Mr. Justice Gray, after stating the case, delivered the opinion of the court. This court has no jurisdiction of the question certified. The office and object of a certificate of division of opinion are to bring to this court for determination a question of law upon which the opinions of two judges, competent to take part in the judgment of the Circuit Court, are opposed to each other. By the provisions of sect. 4 of the act of Sept. 24, 1789, c. 20, and of sect. 5 of the act of April 29, 1802, c. 31, re-enacted in the Revised Statutes, sect. 614, upon the hearing in the Circuit Court of an appeal from a judgment of the District Court, the district judge who rendered the decision appealed from, although he may, for the information of the Circuit Court, assign his reasons for that decision, is prohibited from voting or taking part in the judgment of the Circuit Court, and that judgment is to be entered according to the opinion of the judge who is not so disqualified. The provision of sect. 2 of the act of March 2, 1867, c. 185, also incorporated in the same section of the Revised Statutes, which, in order to prevent failure or delay of justice, permits such a case, by consent of parties, to be heard and disposed of by the district judge when alone holding the Circuit Court, has no application when another judge is present. And the provisions of sect. 6 of the act of April 29, 1802, c. 31, and of sect. 1 of the act of June 1, 1872, c. 255, embodied in sects. 650, 652, 693, 697, of the Revised Statutes, do not enlarge the authority of the district judge in this respect. It necessarily follows that the case cannot be brought to this court upon a certificate of division of opinion between the judge who is qualified and the judge who is disqualified to take part in the judgment. United States v. Lancaster, 5 Wheat. 434; Nelson v. Carland, 1 How. 265. The case cannot be treated as before this court on the appeal from the Circuit Court, without regard to the certificate of division, because it is on the common-law side of that court. 416 Hitchcock v. Buchanan. [Sup. Ct. If it is to be considered as a civil action, the proper mode of bringing it up is by writ of error, and not by appeal. Bevins v. Ramsey, 11 How. 185; Jones v. La Vallette, 5 Wall. 579. If, according to Clifton v. United States (4 How. 242, 250), it should be treated as in the nature of a criminal proceeding, it is hard to see how it could be brought to this court at all, except upon a certificate of division of opinion. Ex parte G-ordon, 1 Black, 503. . Neither the consent of parties nor the allowance of the appeal in the court appealed from can enable this court to review the judgment of that court in any other form of proceeding than the law prescribes. Kelsey v. Forsyth, 21 How. 85; Callan v. May, 2 Black, 541. This court having no jurisdiction of the case, the appeal must be dismissed, and the case Remanded to the Circuit Court. Hitchcock v. Buchanan. 1. A bill of exchange, headed “ Office of Belleville Nail Mill Co.,” and concluding, “ charge same to account of Belleville Nail Mill Co., A. B., Pres’t, C. D., Sec’y,” is the bill of the company, and not of the individual signers; and a declaration thereon against the latter as drawers, setting forth the instrument, and alleging it to be their bill of exchange, is bad on demurrer. 2. A statute prohibiting defendants, in an action upon a written instrument, from denying their signatures, except under plea verified by affidavit, does not apply to a case in which they demur because the instrument declared on appears upon its face to be the contract of their principal and not of themselves. Error to the Circuit Court of the United States for the Southern District of Illinois. This was an action of assumpsit by Hitchcock as indorsee, against Buchanan and Waugh as drawers, of the following bill of exchange: — “Office of Belleville Nail Mill Co., Belleville, Ills., “ $5,477.13. Dec. 15th, 1875. “ Four months after date, pay to the order of John Stevens, Jr., cashier, fifty-four hundred and seventy-seven dol Oct. 1881.] Hitchcock v. Buchanan. 417 lars, value received, and charge same to account of Belleville Nail Mill Co. “ Wm. C. Buchanan, Preset. “James C. Waugh, Beefy. “ To J. H. Pieper, Treas., Belleville, Illinois.” The declaration alleged that the defendants, on the 15th of December, 1875, “at the office of Belleville Nail Mill Co., Belleville, Ills., made their certain bill of exchange ” (describing it), and, after it had been accepted by the drawee, delivered it to the payee therein named, and he indorsed it to the plaintiff, and the bill at maturity was presented for payment, and payment refused, and the bill protested for non-payment, and the defendants, knowing that it would not be paid by the acceptor, had omitted to provide funds for its payment. A copy of the instrument above set forth, and of the acceptance and indorsement thereon, was filed with the declaration. The defendants, after oyer craved and had, severally filed general demurrers to the declaration, which were sustained by the Circuit Court, and judgment given for the defendants, on the ground that the instrument declared on was the bill of exchange of the Belleville Nail Mill Company, and not the bill of the defendants. Mr. Thomas G. Alien for the plaintiff in error. Mr. C. W. Thomas for the defendants in error. Mb. Justice Gray, after stating the case, delivered the opinion of the court. The bill of exchange declared on is manifestly the draft of the Belleville Nail Mill Company, and not of the individuals by whose hands it is subscribed. It purports to be made at the office of the company, and directs the drawee to charge the ' amount thereof to the account of the company, of which the signers describe themselves as president and secretary. An instrument bearing on its face all these signs of being the contract of the principal cannot be held to bind the agents personally. Sayre v. Nichols, 7 Cal. 535 ; Carpenter v. Farnsworth, 106 Mass. 561, and cases there cited.* The allegation in the declaration, that the defendants made “their” bill of exchange, is inconsistent with the terms of the vol. xv. 27 418 United States v, Rindskopf. [Sup. Ct. writing sued on and made part of the record, and is not admitted by the demurrer. Dillon v. Barnard, 21 Wall. 430 ; Binz v. Tyler, 79 Ill. 248. The provision of the statute of Illinois (ed. 1877, title Practice, sects. 34, 36) prohibiting defendants sued on written instruments from denying their signatures, except under plea verified by affidavit, has no application where the fact of signature is admitted by demurrer, and the only issue is one of law. Judgment affirmed. United States v. Rindskopf. 1. The court condemns the practice of setting out in the bill of exceptions the entire charge of the court below, instead of confining it to such parts as are the subject of exception. 2. Suit on a distiller’s bond, the breach assigned being his non-payment of the tax due on a specified number of gallons of spirits alleged to have been distilled at his distillery between certain dates. Held, that prima facie proof of his liability is furnished by the assessment of the Commissioner of Internal Revenue; but it may be overcome by evidence showing either that the tax was paid, or that the whole or a part of the spirits in question was not distilled, within the period mentioned. 3. The point in controversy being as to the quantity of spirits produced upon which the tax was not paid, the court below erred in charging the jury that the assessment must stand as an entirety or be wholly rejected. Error to the Circuit Court of the United States for the Eastern District of Wisconsin. This is an action against Lewis Rindskopf, the principal, and Raphael Reichmann and Elias Rindskopf, sureties, on a distiller’s bond for $7,000, executed March 23, 1875. The principal was then engaged in the business of a distiller within the first collection district of Wisconsin. The condition of the bond provided, among other things, that he should “ comply with all the provisions of law in relation to the duties and business of distillers.” The complaint alleges as a breach of these conditions the non-payment of the tax due on 3,640 gallons of spirits distilled by him at his distillery between the 25th of April and the 1st of May, 1875, amounting to $3,276. It also alleges that the Commissioner of Internal Revenue assessed the tax Oct. 1881.] United States v. Rindskopf. 419 against him on the special list for October of that year; and that the assessment was returned to the collector of the district, who demanded payment of the tax, which was refused. The answer contained a general denial, and also set up as a special defence that on the 1st of November, 1875, the Commissioner of Internal Revenue made an assessment upon the distiller to the amount of $7,117.70, for spirits alleged to have been manufactured at his distillery in the month of April, 1875, and removed therefrom without payment of the tax thereon, and with intent to defraud the government; that this assessment was returned to the collector of the district, who demanded payment of the tax; that afterwards, in May, 1876, the plaintiffs brought a suit in equity to enforce its collection ; that the distiller was served with process and answered the complaint, averring that the assessment was illegal and void; that that suit was still pending ; and that the assessment mentioned in the complaint here was upon the same spirits for which the above assessment of $7,117 was made. A supplemental and amended answer repeated these allegations, and added that the equity case was heard in April, 1879, when the assessment was adjudged to be illegal, and the bill dismissed. The answer pleads the decree entered in bar of the present action. The case was tried at the January Term of the court in 1880. There is no statement of the evidence or of its purport in the record, except as appears in the charge given to the jury. The bill of exceptions states that the plaintiffs offered evidence tending to maintain the issues on their part, “ as is generally stated in the charge of the court hereinafter contained ; ” and that the defendants offered evidence tending to maintain the issues on their part, “ as is in like manner stated in the charge of the court.” Then follows the charge at length, at the end of which particular parts of it are indicated to which exceptions were taken, and among others the following : “ To all that portion of said charge which defines and sets forth the legal force and effect of an assessment, and the means whereby it may be attacked and overcome; to all of that portion of said charge which touches the entirety of the assessment and affirms that the plaintiffs must recover the exact amount of the assess 420 United States v. Rindskopf. [Sup. Ct. ment or nothing.” That portion of the charge to which reference is thus made is found in different passages, which are as follows: After speaking of the power of the Commissioner of Internal Revenue to make an assessment, the court said: — “ When, therefore, an assessment has been made by this officer, it is to be presumed, until such presumption is overcome by proof to the contrary, that it was made upon sufficient evidence, and it is not necessary that the evidence upon which the commissioner acted should be laid before the jury. In other words, the jury have a right to presume until the contrary appears that when the commissioner made the assessment in question he had before him proofs which were sufficient to satisfy a just and fair-minded person that such assessment ought to be made ; and before the jury can disregard the assessment they should be convinced by the evidence that the commissioner acted in making it in a manner unjust to the defendant distiller, and unwarranted by the actual facts. Such an assessment is not, however, conclusive evidence of the liability of the distiller; it is open to attack ; it is prima facie proof only of such liability, and prima facie evidence is such evidence as is sufficient when unassailed to establish a given fact, and it remains sufficient for that purpose until it is rebutted and overcome. . . . Upon introduction of the assessment in evidence a prima facie case of liability on the part of the defendant Lewis Rindskopf is made. The burden of proof then falls upon the defendants, who may proceed to introduce evidence to overcome the assessment by showing that the defendant Lewis Rindskopf did not, during the period covered by the assessment, manufacture and remove from his distillery spirits upon which the tax was not paid. “And upon it being so made to appear, the burden of proof then shifts to the plaintiffs, and it then becomes incumbent on the plaintiffs to maintain and establish the correctness of the assessment by sufficient and competent evidence. . . . The order of proof which has been maintained upon the trial is in consonance with the rules of law applicable to such a case, which have just been stated.” And, after commenting upon the general character of the evidence in the case, the court further said: — Oct. 1881.] United States v. Rjndskopf. 421 “In passing upon the validity of this assessment, and in determining the question of liability on account of it, it is to be taken and considered in its entirety : Either the government is entitled to recover the exact amount of the assessment, namely, the sum of >$3,276, or it is not entitled to recover any sum whatever. The court and jury, upon an investigation of the justness and validity of the assessment, have no right to exercise the powers committed to the commissioner, but our right is limited to an inquiry into the question as to whether the assessment which has been made embraces or represents a just and valid demand against the defendant distiller, and, as the result of such investigation, it must either wholly stand or wholly fall.” In support of the special defence, founded upon the decree in the equity case, that the assessment of November 1 was invalid, the defendants produced the record of the assessment and of the suit, which "was admitted in evidence against the objection of the attorney of the government, — the court stating that proper instructions would be given to the jury in relation to the same. No proof was offered that the assessment covered the spirits for which the first assessment was made; and the court instructed the jury that without such proof the record would not be a bar to the prosecution of this action. The jury found for the defendants, and upon their verdict judgment was entered ; to review which the case is brought to this court on writ of error. The Solicitor-General for the United States. Mr. Jedd P. C. Cottrill and Mr. Charles E. Mayer for the defendants in error. Mr. Justice Field, after stating the case, delivered the opinion of the court. The bill of exceptions in this case sets forth the charge of the court below in full, in disregard of our frequent condemnation of this practice. Only the parts to which the exceptions relate should have been given ; all else is unnecessary, and produces only inconvenience. We repeat of this practice what we said of another practice not uncommon, and equally objectionable, — that of inserting the entire evidence in the record: 422 United States v. Rindskopf. [Sup. Ct. “ If counsel will not heed our admonitions upon this subject, so frequently expressed by us, the judges of the courts below, to whom the bills are presented, should withhold their signatures until the bills are prepared in proper form, freed from all matter not essential to explain and point the exceptions.” Lincoln v. Laflin, 7 Wall. 132, 137. The assessment of the Commissioner of Internal Revenue was only prima facie evidence of the amount due as taxes upon the spirits distilled between the dates mentioned. It established a prima facie case of liability against the distiller, and nothing more. If not impeached, it "was sufficient to justify a recovery; but every material fact upon which his liability was asserted was open to contestation. He and his sureties were at liberty to show that no spirits, or a less quantity than that stated by the commissioner, were distilled within the period mentioned, and thus entirely, or in part, overthrow the assessment. They were also at liberty to show a payment of the tax assessed, in whole or in part, and thus discharge or reduce the distiller’s liability. To the extent, however, in which the assessment was not impaired, it was evidence of the amount due. The court, therefore, erred in instructing the jury that the assessment was to be taken and considered in its entirety, and that the government was entitled to recover the exact amount assessed, or not any sum. In other respects the charge, as given above, correctly presents the law. There may undoubtedly be cases where an assessment must stand as an entirety, or not at all; as where an erroneous rate has been adopted by the officer; or where it is impossible to separate from the property assessed the part which is exempt from the tax; or where its validity depends upon the jurisdiction of the commissioner. The present case does not fall within either of these classes. Here the question is as to the quantity of spirits produced on which taxes were not paid. The decree in the equity suit was properly held not to be a bar to the prosecution of this action in the absence of proof that the assessment which it adjudged invalid covered the spirits upon which the assessment here was made. The instruction to the jury deprived it of any weight as evidence with them. Judgment reversed, and cause remanded for a new trial. Oct. 1881.] Marchand v. Frellsen. 423 Marchand v. Frellsen. 1. Where an order directing the seizure and sale of lands in Louisiana, whereon the vendor retained his lien and privilege, has been made in a proceeding to enforce the payment of an instalment of the purchase-money, and an appeal is taken, the surety on the bond is liable for the claim sued on. 2. The pendency of proceedings On appeal does not render void an order of another court of competent jurisdiction for the seizure and sale of the lands to satisfy a subsequent instalment, nor does the payment of the first bond satisfy that given on appeal from the second order. 3. The application of the proceeds of the sale under the first order to satisfy, pursuant to its requirements, the several instalments pro rata, does not discharge the surety from the payment of the unpaid balance, for which he was otherwise liable. Error to the Circuit Court of the United States for the District of Louisiana. On Dec. 31, 1863, Frellsen sold to Fairex a plantation in St. Charles Parish, in the State of Louisiana, for the consideration of $133,000, of which Fairex paid $3,000 in cash, and the residue he agreed to pay in annual instalments, bearing interest and falling due respectively on the first day of May in every year for eleven years. He executed and delivered to Frellsen his promissory notes for the principal of these deferred payments, and also notes for the interest to accrue thereon. In the authentic act by which Frellsen conveyed the property to Fairex he reserved his vendor’s privilege. On May 19, 1869, Frellsen applied to the Seventh District Court of the Parish of Orleans for an order of seizure and sale, to be directed against the plantation, to satisfy the two notes given for the instalment of the purchase-money which fell due on May 1, 1869, — one for $11,000 principal money, and the other for $5,390 interest. The writ as prayed for was issued, but its execution was suspended by an appeal taken by Fairex to the Supreme Court. The bond for the appeal was in the penalty of $26,000, and Marchand was the surety. The condition of the bond was as follows: “ Now the condition of the above obligation is such that the above-bound Daniel Fairex shall prosecute this appeal and shall satisfy whatever judgment 424 Marchand v. Frellsen. [Sup. Ct. may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in the appeal; otherwise that the said Marchand, surety, shall be liable in his place.” The Supreme Court affirmed the order of the Seventh District Court directing the writ of seizure and sale to issue, and gave judgment against Fairex for ten per cent on the amount of the two notes which were the basis of the writ of seizure and sale, on account of his frivolous appeal. While the appeal was pending, the two notes, one for $11,000, principal, and the other for $4,620, interest, maturing May 1, 1870, became due and were not paid. Thereupon, to satisfy them, Frellsen, on May 18, 1870, obtained from the Fifth District Court for the Parish of Orleans, on his petition, an order of seizure and sale directed against the plantation. On May 26, 1870, Fairex appealed to the Supreme Court from this order, and gave bond with Marchand, as surety, for the appeal in the penalty of $23,000. It was conditioned precisely as that on the former appeal. Fairex died Aug. 26, 1871, and the administratrix of his estate was made party to the appeal in the Supreme Court. On Jan. 19, 1874, the Supreme Court made the following decree upon this appeal: “ The court, therefore, orders that the plaintiff and appellee recover from the defendant five hundred dollars as damages for a frivolous appeal, and that the appeal be dismissed at the costs of the appellant.” While the appeal from the Fifth District Court was pending in the Supreme Court, that court having affirmed the order of seizure and sale made by the Seventh District Court, Frellsen, on Nov. 28, 1871, applied to the last-named court for an alias order of seizure and sale, to satisfy the two notes which matured May 1, 1869, the amount due on which was $16,390. The court directed the writ to issue, and by virtue of it the plantation was sold by the sheriff to Frellsen, the original vendor, for $40,000. This sum, by order of the court, was applied pro rata on all the notes for the purchase-money of the plantation remaining unpaid. After the notes which were the basis of the proceedings in the Fifth District Court were thus credited, there remained due thereon $8,595, and after Oct. 1881.] Marchand v. Frellsen. 425 the credit was applied to the notes which were proceeded on in the Seventh District Court, there remained due thereon $13,342. On May 21, 1872, a rule was taken on Marchand in the Seventh District Court to hold him liable upon the bond for the appeal taken from that court. Judgment was demanded against him on the bond for the balance, $13,342, due on the notes which had been proceeded on in that court; and for $1,639, the judgment for damages for the frivolous appeal, rendered by the Supreme Court. Upon the trial of this rule the Seventh District Court entered judgment against Marchand for $1,639, the damages for the frivolous appeal, and for interest and costs, amounting to $1,900, and dismissed the rule as to the residue of Frellsen’s demand. Marchand paid, Dec. 3, 1873, the sum of $1,900, which he was condemned to pay, and it was accepted by Frellsen in full satisfaction of the judgment rendered as aforesaid. After all these proceedings, on May 8, 1876, a rule in the Fifth District Court was taken against Marchand by Frellsen, who alleged that on the demand upon which he had obtained the order for seizure and sale in that court, a balance of $8,595 was due, with interest at the rate of eight per cent per annum from Feb. 3, 1872; that the property, subject to executory judgment, had been sold pursuant to an order and judgment of the Seventh District Court; that Fairex had no other property which could be found by the sheriff to satisfy the demand ; and that he was dead and his estate insolvent. Marchand was required to show cause why he should not be condemned, by reason of his suretyship on the bond for the appeal from the order of seizure and sale made by that court, to pay that balance with interest, and $500, the damages adjudged for a frivolous appeal. This suit was removed by Marchand to the Circuit Court of the United States for the District of Louisiana, where the rule was made absolute, and judgment rendered against him for $8,595, with interest thereon, and also for the sum of $500, the above-mentioned damages. This writ of error is prosecuted by Marchand to review that judgment. 426 Marchand v. Frellsen. [Sup. Ct. The cause was argued by J/r. Charles W. Hornor for the plaintiff in error, and by Mr. Philip Phillips and Mr. IF. Hallett Phillips for the defendant in error. Mr. Justice Woods, after stating the case, delivered the opinion of the court. The first contention of the plaintiff in error is that the court below erred in the construction which it gave to the appealbond executed by him for the appeal taken from the order of the Fifth District Court. He insists that the obligation ■which he thereby assumed was to pay for the use and detention of the property pending the appeal, just damages for delay, costs of suit, and costs and interest on the appeal, and that lie did not bind himself to pay the debt to satisfy which the writ of seizure and sale had been ordered. We find no warrant for this construction of the bond in the decisions of the Supreme Court of Louisiana, which interpret the articles of the code by virtue of which the bond was exacted. Bonds for appeal from an order directing a writ of seizure and sale are given* by virtue of the provisions of articles 575 and 579 of the Louisiana Code of Practice. Alley v. Hawthorn, 1 La. Ann. 122; Cottman v. Ratliff, 20 id. 179; State, ex rel. Bankhead, v. Judge of the Fourth District Court, 22 id. 116. These articles are as follows: — “Art. 575. If the appeal has been taken within ten days, not including Sundays, after the judgment has been notified to the party cast in the suit, when such notice is required by law to be given, it shall stay execution and all other proceedings until definitive judgment be rendered on the appeal: Provided, the appellant gives his obligation with good and solvent security, residing within the jurisdiction of the court, in favor of the clerk of the court rendering the judgment, for a sum exceeding by one-half the amount for which the judgment was given, if the same be for a specific sum, as security for the payment of the amount of such judgment, in case the same is affirmed by the court to which the appeal is taken. . . . “ Art. 579. In the appeal-bond it must be set forth in substance that it is given as security that the appellant shall prosecute his ap Oct. 1881.] Marchand v. Frellsen. 427 peal, and that he shall satisfy whatever judgment may be rendered against him, or that the same shall be satisfied by the proceeds of the sale of his estate, real or personal, if he be cast in his appeal, « otherwise, that the surety shall be liable in his place.” It is evident from an inspection of the bond, which is the basis of this suit, that it was given under these articles. The authentic act whereby Frellsen conveyed the plantation to Fairex, and the latter agreed that the plantation should be subject to the vendor’s lien for the payment of the notes given for the purchase-money, imported a confession of judgment in favor of Frellsen by Fairex for the amount of said notes respectively as they severally fell due. When, therefore, Fairex, the mortgagor, appealed from an order of the court directing a writ of seizure and sale to satisfy such of the notes as were then due and unpaid, he suspended the execution of a judgment against him, and the surety on the appeal-bond became bound for the debt. That such is the effect of the bond for appeal in cases of this class has been repeatedly decided by the Supreme Court of Louisiana. In Whann v. Irwin (27 La. Ann. 706), that court said: “ It is contended that the proceeding against the surety was premature, as only the property mortgaged had been sold under the writ, and no execution had been issued against the judgment debtor, and returned nulla bona. If this proposition be correct, to require a bond for an appeal from an order of seizure and sale is an idle form. “Article 575 of the Code of Practice, and article 37 of the Revised Statutes of 1871, justify the mode of proceeding in this case. The only execution which it was possible for the judgment creditor to cause to be issued, was issued and returned not satisfied. The requirements of the law were substantially complied with. The surety knew that under the executory process no other property could be sold except that which was included in the mortgage, and when he stopped that by signing the appeal-bond, he obligated himself to pay the amount of the judgment for which the writ had issued, if affirmed on appeal. “ By reason of the nature of the judgment no execution could be taken out, after the return of the order of seizure and 428 Marchand v. FrellseK. [Sup. Ct. sale, which could reach the property of the debtor, and, therefore, the plaintiff had the right to proceed against the surety on the appeal-bond. A different interpretation of the law would make of judicial suretyship a mere farce, the commencement rather than the end of litigation.” The rule thus laid down was reaffirmed in the case of Landry v. Victor, 30 La. Ann., Part 2, 1041. So in Thompson n. Grow, not reported, it was held that the surety on a bond given for a suspensive appeal from an order of seizure and sale is liable for the amount of the mortgage claim sued on. See Louque’s Digest, title Appeal, III. e. 4, p. 39. We have been able to find no conflicting decisions. This interpretation of the local law and of the construction of bonds executed pursuant to its provisions is binding on this court, and leaves no ground for the contention now under consideration to stand on. It is next insisted by the plaintiff in error that all the proceedings in the Fifth District Court, in which the bond sued on in this case was given, were absolutely void, and, therefore, that the bond was also void. The reason for this contention is stated to be that Frellsen having begun his proceedings for seizure and sale in the Seventh District Court on the notes which matured May 1, 1869, the institution of a similar proceeding on other notes of the same series, subsequently falling due, in the Fifth District Court, was an illegal and oppressive act. It is asserted that “ all the proceedings in the Seventh District Court were regular and legal, whilst all those in the Fifth District Court were null and void on account of the error produced in the minds of the judges of the Supreme Court and the Fifth District Court by the action of Frellsen in withholding from them knowledge of the pendency of the suit in the Seventh District Court.” It is not disputed that the subject-matter of the proceedings in the Fifth District Court was within its jurisdiction, and that the parties were before it. Its proceedings, therefore, however erroneous, cannot be null and void. In passing upon this point it is only necessary to apply the rule laid down by this court as an axiom of the law, that the validity of a judgment Cannot be questioned collaterally for errors which do not affect Oct. 1881.] Marchand v. Frellsen. 429 the jurisdiction of the court which rendered it. Cooper v. Reynolds, 10 Wall. 308. The complaint seems to be this: that in the proceeding in the Fifth District Court, Frellsen, on whose appeal-bond Marchand became surety, had a good defence against the order or judgment rendered in that case, if he had only taken the trouble to make it. But the fact that he did not make it, and that his antagonist did not make it for him, does not render the judgment void, the court having unquestioned jurisdiction to make orders for seizure and sale, and the mortgagor being present in court to resist it. It is further insisted that the payment by Marchand of the judgment for $1,900, rendered against him by the Seventh District Court upon the appeal-bond given for the appeal from the order of that court, is also a satisfaction of any claim on the appeal-bond signed by him in the Fifth District Court for the appeal from the order of that court allowing the writ of seizure and sale for the satisfaction of other notes of Fai rex. If, as decided by the Supreme Court of Louisiana, the appealbond in such cases is a security for the payment of the notes on which the application for the order of seizure and sale is based, it is plain that the satisfaction of a bond for an appeal on one note cannot be a satisfaction of another bond for another appeal on a different note. Each note is a separate cause of action, and the satisfaction of one does not necessarily imply the satisfaction of another. Lastly, article 3061 of the code of 1870 is relied on for a reversal of the judgment below. That article declares, “ The security is discharged when, by the act of the creditor, the subrogation to his rights, mortgages, and privileges can no longer be operated in favor of the surety.” The defence founded on this article is thus set forth in the answer filed by Marchand to the rule taken on him in the Fifth District Court: “Said plaintiff has by his acts made it impossible and placed it beyond the power of respondent to satisfy the alleged order of seizure and sale herein, or the alleged decree on appeal therefrom ; that said plaintiff, without respondent’s consent, has, by his said acts, impaired respon 430 Dowell v. Mitchell. [Sup. Ct. dent’s rights to subrogation, and respondent is thereby released from any liability, if any existed, which is denied.” It is sufficient to say in reply to this contention, that the mortgage to which Marchand claims the right of subrogation has been enforced, and the proceeds of the mortgaged property applied pro rata to the satisfaction of the claim for which he is surety. If he had been actually subrogated to the rights of Frellsen, under the mortgage, he could have secured nothing more. He has not been injured. He has lost nothing by the foreclosure of the mortgage. It has resulted to his ad-vantage in the reduction of the debt for which he is surety, and is no ground for his discharge from the unpaid balance. Judgment affirmed. Dowell v. Mitchell. Mitchell v. Dowell. Where a note for the debt of a firm was made by its surviving member, who, to secure its payment, executed a mortgage on real estate, which was the individual property of his deceased partners, — Held, that on the ownership being shown on the hearing of the foreclosure suit brought against him and their heirs the bill should be dismissed without prejudice, the ground of equitable relief not having been made out, and the complainant having a complete remedy at law to enforce the payment of the note. Appeals from the Circuit Court of the United States for the Eastern District of Arkansas. These are cross-appeals from the same decree. The original bill was filed Aug. 22, 1877, by John H. Dowell and H. M. Mandeville, late partners under the name of J. H. Dowell & Co., against Askew, as. administrator of the estate of Claiborne S. Barron, deceased, Margaret Barron, his widow, his three children, and William H. Brazell. Askew resigned pending the suit, and C. E. Mitchell, the administrator de bonis non, was made a party defendant in his stead. It appears from the evidence that the complainants were cotton-factors and commission-merchants in St. Louis, and in that capacity acted for Barron and Brazell, who, Oct. 4, 1873, Oct 1881.] Dowell v. Mitchell. 431 formed a partnership under the name of Barron & Brazell, to continue two years. On Oct. 4, 1875, the day upon which the partnership expired by its own limitation, Barron died, the firm being then indebted to the complainants for advances in the sum of $15,989. Brazell as surviving partner was left in possession of the assets of the late firm, with which he continued business in the firm name, and on April 15, 1876, he had an accounting and settlement with the complainants, to whom there was found to be due $8,456. Thereupon he, in the name and as surviving partner of the late firm, made to them three notes, in the aggregate amounting to that sum, and to secure them executed a mortgage on a parcel of real estate in the town of Hope, in the State of Arkansas, the legal title to which was in Barron at the time of his death. The bill was to foreclose the mortgage. The defences were: (1) That there was nothing due from the late firm of Barron & Brazell on the notes; and (2) That neither Brazell nor the firm had any title to the real estate, but that it was the individual property of Barron, and that the mortgage was, therefore, void. ♦ Upon final hearing the Circuit Court was of opinion that the amount specified in the notes was due to the complainants from Brazell and the estate of Barron, his late partner; that the real estate described in the bill, and alleged to be the property of the late firm, had never been its property, but belonged to Barron at the time of his death ; that the title thereto was in his heirs; and that Brazell, as surviving partner, “ had no right or authority to execute said mortgage on said property, and that said mortgage deed was void and of no effect.” Thereupon the court decreed that “ so much of complainants’ bill as prays a decree of foreclosure of said mortgage be denied,” and rendered a decree against the administrator of Barron’s estate and Brazell for the amount due on the notes purporting to be secured by the mortgage. The complainants and the administrator appealed from this decree. Mr. Augustus H. Garland and Mr. W. F. Henderson for Dowell. Mr. Solomon F. Clark and Mr. Samuel W. Williams, contra. 432 Dowell v. Mitchell. [Sup. Ct. Mb. Justice Woods, after stating the case, delivered the opinion of the court. Without going into a discussion of the evidence on the subject, we declare our opinion to be that the Circuit Court was right in holding that the title to the property described in the mortgage executed by Brazell in the name of the late firm of Barron & Brazell had never been either in the late firm or in Brazell, but was in Barron, the deceased member of the firm, at the time of his death, and that at the date of the mortgage the title of the mortgaged premises was in his heirs. When this fact was established by the evidence, the court below, sitting as a court of equity, had no jurisdiction to proceed in the cause. There was nothing on which it could act but the promissory notes, and to enforce their payment the complainants had a plain, adequate, and complete remedy at law. The rule is that where a cause of action cognizable at law is entertained in equity on the ground of some equitable relief sought by the bill, which it turns out cannot, for defect of proof or other reason, be granted, the court is without jurisdiction to proceed further, and should dismiss the bill without prejudice. Russell v. Clarke, 7 Cranch, 69; Price's Patent Candle Co. v. Bauwen's Patent Candle Co., 4 Kay & J. 727; Bailey v. Taylor, 1 Russ. & M. 73; French v. Howard, 3 Bibb (Ky.), 301; Robinson v. Grilbreth, 4 id. T83; Nourse v. Gregory, 3 Litt. (Ky.) 378. We are of opinion, therefore, that the decree of the Circuit Court should be reversed, and the cause remanded with directions to dismiss the bill without prejudice to an action at law on the notes which the invalid mortgage purported to secure; and it is So ordered. Oct. 1881.] Russell v. Farley. 433 Russell v. Farley. 1. Where an injunction is granted to a party without requiring him to give bond or other undertaking, the Circuit Court has no power to award damages to the injured party, except by such a decree in the matter of costs as may be deemed equitable. 2. In the absence of either an act of Congress, or a rule of-court on the subject, the Circuit Court can, before granting an injunction, impose terms, and it can relieve therefrom whenever it would be oppressive or inequitable to continue them. 3. Where neither the bond given, nor the statutes, nor any rule of court, prescribes a specific mode of assessing damages, and the condition of the bond is simply to pay such as the adverse party may sustain by reason of the injunction, if the court finally decides that the party to whom it was granted is not entitled thereto, — Semble, that the court may, as an incident to its jurisdiction, cause them to be assessed under its own direction, or leave the party to his action at law. 4. The court decreed that this was not a case for damages. Held, that its action in the premises approaches so nearly to an exercise of discretion, that a very clear showing must be made to induce this court to reverse it. Appeal from the Circuit Court of the United States for the District of Minnesota. The case is fully stated in the opinion of the court. Mr. Richard L. Ashurst and Mr. Thomas H. Hubbard for the appellant. Mr. Henry J. Horn for the appellee. Mr. Justice Bradley delivered the opinion of the court. This case comes before us by appeal from a decree in a case in equity wherein Jesse P. Farley, as receiver of certain branch lines of the St. Paul and Pacific Railroad Company, and of all lands and other property appurtenant thereto, was complainant, and the firm of De Graff & Co., the Northern Pacific Railroad Company, the Lake Superior and Mississippi Railroad Company, B. S. Russell, G. W. Cass, receiver of the Northern Pacific Railroad Company, and C. W. Mead, general manager of said company, were defendants. The complainant was appointed receiver Aug. 1, 1873, in a foreclosure suit brought by John S. Kennedy and others, trustees under a mortgage given by the St. Paul and Pacific Railroad Company to secure fifteen millions of dollars of bonds issued by a subsidiary vol. xv. 28 434 Russell v. Farley. [Sup. Ct. corporation called the First Division of the St. Paul and Pacific Railroad Company, which had a contract to build the railroad, and a lease of the road for ninety-nine years. Amongst the assets supposed by the receiver to be subject to this mortgage was certain railroad iron, which had been purchased in England with the money raised by the sale of the bonds,, to wit, 1,700 tons lying at Glyndon, on the line of the road, and 1,000 tons at Duluth, claimed by De Graff & Co., and 1,860 tons at Duluth, claimed by B. S. Russell,—that at Duluth being mostly held in the custom-house for unpaid duties, but some of it being about to be reshipped. The bill in this case was filed by the receiver in the State District Court for the county of Ramsey on the 21st of June, 1875, seeking to set aside the respective transfers of iron by virtue of which De Graff & Co. and Russell claimed to hold it, and for an injunction to restrain them from removing it, or taking it from the custom-house. By a statute of Minnesota it is declared that, “ when no special provision is made by law as to security upon injunction, the court or judge allowing the writ shall require a bond on behalf of the party applying for such writ, in a sum not less than two hundred and fifty dollars, executed by him or some person for him, as principal, together with one or more sufficient sureties, to be approved by said court or judge, to the effect that the party applying for the writ will pay the party enjoined or detained such damages as he sustains by reason of the writ, if the court finally decide that the party was not entitled thereto. The damages may be ascertained by a reference or otherwise as the court shall direct.’ 2 Bissell’s Statutes, 806, sect. 121. On filing the bill in this cause, the complainant (the said receiver) obtained a temporary injunction upon giving to the defendants a bond in the penalty of $10,000, with the following condition, to wit: “ Whereas the said plaintiff is about to apply to this court for a temporary injunction enjoining and restraining the defendants, and each of them, from shipping, removing, selling, hypothecating, transporting, interfering, or intermeddling with 4,560 tons of iron rails now lying at Glyndon and Duluth, Minnesota, or any part thereof: Now, therefore, if the plaintiff will pay the parties enjoined by such Oct. 1881.] Russell v. Farley. 435 writ, or detained thereby, such damages as they or either or any of them may sustain by reason of the writ, if the court finally decide that the party was not entitled thereto, the above obligation shall be void, else of full force and virtue.” De Grafif & Co. having by consent rebonded 1,000 tons of the iron claimed bv them, the court, on the 11th of August, 1875, required a further bond from the complainant in the sum of $79,000, the condition of which was as follows, to wit: “Whereas an injunction has heretofore been granted in this court enjoining and restraining the said defendants, and each of them, from shipping, removing, selling, hypothecating, transferring, or interfering, or intermeddling with 4,500 tons of iron rails now lying at Glyndon and Duluth, Minnesota, or any part thereof; and whereas said injunction is still in force and effect except as to one thousand tons of said iron, claimed by said De Graff & Co., at Duluth, aforesaid; and whereas the said court has ordered, as a condition for the continuance of said injunction, that the plaintiff« execute to the defendants herein a bond in the sum of seventy-nine thousand dollars, in addition to the bond for ten thousand dollars heretofore given by the plaintiff on the issuance of the injunction: Now, therefore, if the plaintiff will pay the parties enjoined by such injunction, or detained thereby, such damages as they, or either or any of them, may sustain by reason of such injunction, if the court finally decide that the party was not entitled thereto, the above obligation shall be void, else of full force and virtue.” The defendants severally answered the bill, and on the 1st of March, 1876, on application of the complainant, the cause was removed to the Circuit Court of the United States for the District of Minnesota. After taking a large amount of evidence, it was brought to a hearing, and on the 13th of October, 1877, a final decree was made dismissing the bill as to De Graff & Co., without costs to either party. As to the defendant Russell, who was charged with holding 1,860 tons of the iron, it appeared that he was acting as agent for William G. Morehead, who was trustee or agent for the First Division Company in procuring the iron and carrying on the work of construction, and who had sold to De Graff & Co., sub-contractors, the iron claimed by them, in part payment of moneys due them for 436 Russell v. Farley. [Sup. Ct. work; and had pledged a portion of the 1,860 tons of iron (claimed by Russell) to pay Jay Cooke & Co. for advances of money, and Jay Cooke & Co. had pledged and sold it to the United States (the Navy Department) for a debt due to it. Some 1,090 tons of the 1,860 tons in question remained at Duluth unsold, and this was claimed by Edward M. Lewis, trustee in bankruptcy of Morehead; but the court held that it was subject to the mortgage, and that the receiver was entitled to it. The decree on this part of the case was as follows, to wit: — “ It is also further ordered, adjudged, and decreed that the said Farley, as receiver, as against the defendant B. S. Russell, and against the defendant Edward M. Lewis, trustee in bankruptcy of William G. Morehead and others, is entitled, for the benefit of the trust which he represents, to all the iron rails in controversy herein not sold to De Graff & Co., and not pledged and sold to the Navy Department; which said iron rails, subject to the customs duties to the-United States, thus decreed to the said Farley as receiver, he is authorized to use in the construction of the said extension lines, or to sell at the best prices and on the best terms practicable, and apply the net proceeds thereof to the credit of the mortgage, dated April 1,1871, executed by the St. Paul and Pacific Railroad Company to Horace Thompson, George L. Becker, and William G. Morehead, trustees, who in the said trust have been succeeded by the said Wetmore, Pearsal, and Denny, as trustees, and which mortgage is now being foreclosed in this court, neither party as against the other to recover costs or damages. It is further adjudged and decreed that all transfers of the 1,860 tons of iron in controversy herein claimed by defendant Russell from William G. Morehead to said Russell, except transfers relating to the iron pledged to the Navy Department, are null and void, and that said Russell has no right, title, or interest therein as against the said Farley and said trustees. It is further ordered, adjudged, and decreed that said Farley has no right, title, or interest in the iron transferred to the Navy Department, and which is claimed herein by defendants Russell and Lewis; and it is further adjudged that neither the plaintiff nor the defendant Russell is entitled to costs or damages herein.” Oct. 1881.] Russell v. Farley. 437 Russell alone appealed from this decree, and appealed only from that portion of it which declared that neither party as against the other is entitled to costs or damages. That an appeal does not lie from a decree in equity as to the costs merely, is well settled. Canter v. American $ Ocean Insurance Co., 3 Pet. 307; Elastic Fabrics Company v. Smith, 100 U. S. 110. But it is contended by the appellant that the Circuit Court had no power to decree that he was not entitled to damages, thereby precluding him from recovering damages on the injunction bond; and, if it had any power to make a decree on the subject of damages, the decree denying him damages in this case is erroneous. Had the cause remained in the State oourt, there can be no doubt that that court, under the Minnesota statute which required an injunction bond to be given, could have determined the question of damages. The statute expressly declares that “the damages may be ascertained by a reference, or otherwise, as the court shall direct.” But the Circuit Court of the United States is not governed in its practice in equity by the laws of the State in which it sits, but by the rules of practice prescribed by this court and by the Circuit Court not inconsistent therewith ; and, when these are silent, by the practice of the High Court of Chancery in England prevailing when the equity rules were adopted, so far as the same may reasonably be applied. Equity Rule 90. The injunction bond taken by the State court, it is true, comes into the Circuit Court with the other proceedings in full force; but the power of the Circuit Court to deal with it depends upon the principles which govern the practice of that court, the same as if it had been originally taken by its direction. The question then arises whether the Circuit Courts have any power to make a decree on the subject of damages arising from an injunction, where an injunction bond has been required. Where no. bond or undertaking has been required, it is clear that the court has no power to award damages sustained by either party in consequence of the litigation, except by making such a decree in reference to the costs of the suit as it may deem equitable and just. Has it any such power, or any power over the subject, where such a bond has been given? 438 Russell v. Farley. [Sup. Ct. For a solation of this question it will be proper to advert briefly to the history and object of this kind of obligations. It is a settled rule of the Court of Chancery, in acting on applications for injunctions, to regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. Kerr on Injunctions, 209, 210. And if the legal right is doubtful, either in point of law or of fact, the court is always reluctant to take a course which may result in material injury to either party; for the damage arising from the act of the court.itself is damnum absque injuria, for which there is no redress except a decree for the costs of the suit, or, in a proper case, an action for .malicious prosecution. To remedy this difficulty, the court, in the exercise of its discretion, frequently resorts to the expedient of imposing terms and conditions upon the party at whose instance it proposes to act. The power to impose such conditions is founded upon, and arises from, the discretion which the court has in such cases, to grant, or not to grant, the injunction applied for. It is a power inherent in the court, as a court of equity, and has been exercised from time immemorial. The older authorities refer to numerous instances in which it has been exercised. Chief Baron Gilbert in his Forum Romanum, p. 196 (repeated in Bacon’s Abridgment, title Injunction, C), speaking of the course where an answer is put in, denying the equity of the bill, followed by a rule nisi to dissolve the injunction, says : “ The plaintiff must show cause either upon the merits, or upon filing of exceptions; if upon the merits, the court may put what terms they please upon him, as bringing in the money, or paying it to the party, subject to the order of the court, or giving judgment with a release of errors, and consenting to bring no writ of error, or to give security to abide the order on hearing, or the like.” See also Newland’s Ch. Bract., 223, 224; Kerr, Injunctions, 212, 622; Story, Eq. Jur., sects. 958 b, 959 d. In Marquis of Downshire v. Lady Sandys (6 Ves. Jr. 107), A. D. 1801, Lord Eldon said if there was a real doubt on the subject in controversy, he would direct an issue, “ taking care that if in the result of such a direction the defendant should be prejudiced by not being permitted to cut in the mean time [trees claimed to be orna Oct. 1881.] Russell v. Farley. 439 mental], the plaintiff should undertake to pay the value if the decision should be against him.” In a similar case, in 1825, the same judge made an order that the plaintiff should go before the master and give such security as would in the master’s judgment secure to the defendants the value of all the trees which they should be prevented from cutting by the injunction, in case it should finally turn out in the judgment of the court that they ought not to have been enjoined in equity. Wombwell v. Belasyse, id. 110, note. Mr. Kerr, in his treatise on Injunctions, says: “ In balancing the comparative convenience or inconvenience from granting or withholding an injunction, the court will take into consideration what means it has of putting the party who may be ultimately successful in the position he would have stood if his legal rights had not been interfered with. The court may often by imposing terms on the one party, as the condition of either granting or withholding the injunction, secure the other party from damage in the event of his proving ultimately to have the legal right. . . . The defendant * may be required to do such acts, or execute such works, or otherwise deal with the same as the court shall direct; or to enter into an undertaking to refrain from doing in the mean time the acts complained of by the bill, or to abide the order the court may make as to damages or otherwise, in the event of the legal right being determined in favor of the plaintiff. . . . So, on the other hand, as a condition of granting an injunction, [the court may] require the plaintiff to enter into an undertaking as to damages in the event of the right at law being determined in favor of the defendant, and the injunction proving to have been wrongly granted.” Kerr, Injunctions, 212. Again, in another place, he says: “ In doubtful cases where damage may be occasioned to the defendant in the event of an injunction or interim restraining order proving to have been wrongly granted, tl\e court will require the plaintiff, as a condition of its interference in his favor, to enter into an undertaking to abide by any order it may make as to damages.” Kerr, 622. In Wilkins v. Aikin (17 Ves. Jr. 422), where a bill was filed to prevent the infringement of a copyright; but it being doubtful whether the defendant did more than make allowable extracts from the plaintiff's 440 Russell v. Farley. [Sup. Ct. work, Lord Eldon said: “ The proper course in this instance will be to permit this work to be sold in the mean time; the defendant undertaking to account according to the result of the action.” p. 426. The same practice has prevailed in this country, in some cases in pursuance of statute, and in others, by the action of the court itself. As early as 1723 a law was passed in Maryland, that any person desiring to proceed in equity against a verdict or judgment rendered against him in the County Court, should be required to give security in double the amount of the debt for the due prosecution of the injunction and payment of debt and all costs and damages that should accrue in the Chancery Court, or should be occasioned by the delay, unless the Court of Chancery should decree to the contrary, and in all things obey such order and decree as the court should make. In 1793 an additional law was passed, to the effect that whenever application should be made for an injunction to stay proceedings at law, the Chancellor should have power and discretion to require the applicant to give a bond to the plaintiff at law, with condition to perform such order or decree as the Chancellor should finally pass in the cause. Similar laws were passed in Virginia in 1787, and in New Jersey in 1799, and no doubt in other States at an early date. Their object was, where an adjudication had already been had at law, to make it compulsory on the Chancellor to require security before granting an injunction. The jealousy of the courts of law at the interference of the Court of Chancery with their judgments is a matter of historical notoriety. But these laws did not interfere with the Chancellor’s discretionary power to require a bond in all other cases. Regulations substantially similar to those above adverted to were prescribed by general rule of the Court of Chancery of New York prior to the adoption of the Revised Statutes. In 1828 they were codified, with amendments, in that revision. But the rule, as well as the statute, only related to injunctions for staying proceedings at law. In 1830, the Chancellor of New York, for the first time, made a general rule (No. 31), that where no special provision was made by law as to security, the vice-chancellor, or master, Oct. 1881.] Russell v. Farley. 441 who allowed an injunction out of court, should take from the complainant, or his agent, a bond to the party enjoined, either with or without sureties in the discretion of the officer, in such sum as might be deemed sufficient, not less than $500, conditioned to pay such party all damages he might sustain by reason of such injunction if the court should decide that the complainant was not entitled to the same ; and that the damages might be ascertained by a reference or otherwise, as the court should direct. 1 Hoffman, Ch. Pr. 80; 1 Barb. Ch. Pr. 622; 2 Paige (N. Y.), 122. The object, no doubt, was to prevent hasty and oppressive injunctions from being issued by subordinate officers. This rule, enlarged and made applicable to all courts and judges, was copied in the New York Code of Procedure of 1848, sect. 195 (now sect. 222), and has been followed in other codes and systems of practice in other States. See 2 R. S. Wisconsin, 748; also Laws of Illinois, Iowa, Colorado, &c. It was substantially adopted in the Chancery Rules of New Jersey in 1853, except that it wras left to the discretion of the officer to require a bond or not. It was copied in the statutes of Minnesota, under which the bonds in the present case were taken, as may be seen by comparing it with the section of said statutes already cited. But no act of Congress or rule of this court has ever been passed or adopted on this subject. The courts of the United States, therefore, must still be governed in the matter by the general principles and usages of equity. To these we have already adverted so far as concerns the power to require security or impose terms before granting an injunction. It remains to notice the control which a Court of Chancery may exercise in relieving from or modifying such terms during the progress or at the termination of the cause, and of enforcing and carrying out the conditions imposed or the undertakings entered into. Since the discretion of imposing terms upon a party, as a condition of granting or withholding an injunction, is an inherent power of the court, exercised for the purpose of effecting justice between the parties, it would seem to follow that, in the absence of an 'imperative statute to the contrary, the 442 Russell v. Farley. [Sup. Ct. court should have the power to mitigate the terms imposed, or to relieve from them altogether, whenever in the course of the proceedings it appears that it would be inequitable or oppressive to continue them. Besides, the power to impose a condition implies the power to relieve from it. If, for example, it is deemed proper, upon an application for an injunction, to require, as a condition of granting or withholding it, that a sum of money should be paid into court, or that a deed or other document should be deposited with the register, and the developments of the case are afterwards such as to make it manifestly unjust to retain the fund or document and deprive the owner of its use, the court assuredly has the power (though, undoubtedly, to be exercised with caution) to order it to be delivered out to the party. When the pledge is no longer required for the purposes of justice, the court must have the power to release it, and leave the parties to the ordinary remedies given by the law to litigants inter sese. Where the fund is security for a debt or a balance of account, or other money demand, this would rarely be allowable; but in many other cases it might not unfrequently. occur that injustice would result from keeping property impounded in the court. On general principles the same reason applies where, instead of a pledge of money or property, a party is required to give bond to answer the damage which the adverse party may sustain by the action of the court. In the course of the cause, or at the final hearing, it may manifestly appear that such an extraordinary security ought not to be retained as a basis of further litigation between the parties; that the suit has been fairly and honestly pursued or defended by the party who was required to enter into the undertaking, and that it would be inequitable to subject him to any other liability than that which the law imposes in ordinary cases. In such a case it would be a perversion, rather than a furtherance, of justice to deny to the court the power to supersede the stipulation imposed. Against this view, however, the appellants have strenuously urged the case of Novello v. James (5 De G., M. & G. 876), in which an injunction against the sale of certain compositions of Mendelssohn in violation of a copyright was obtained on an Oct. 1881.] Russell v. Farley. 443 undertaking of the plaintiff to abide the order of the court as to damages. After a three years’ litigation the case was decided against the plaintiff. The legal title having been a doubtful one, the plaintiff moved that his bill might be dismissed without costs, and the defendant moved that the plaintiff might be decreed to pay him damages sustained by reason of the injunction. The Vice-Chancellor decided that the proper damages would be the costs of the suit. Upon appeal, this order was reversed upon the ground that the defendant, under the circumstances, had a right to insist on having his damages ascertained either by reference to an officer of the court, or by a trial at law. The Lords Justices thought that it would be unjust to the defendant to disregard, or not to give effect to, the undertaking which was the price at which the plaintiff accepted the injunction ; and that there was not sufficient evidence before the Vice-Chancellor to enable him to decide what the defendant’s damages amounted to, or whether the costs, supposing him not otherwise entitled to them, were a just measure of the damages. It is evident, from a careful reading of this case, that the decision was based on the merits; and that the Lords Justices were of opinion that the defendant was entitled to damages; not as a matter of course because an undertaking had been given, but as a matter of justice and equity, which the undertaking would enable him to enforce. They held, therefore, that evidence of the damages should have been taken; and that the decree of the Vice-Chancellor was erroneous, because made without any such evidence. We do not perceive that this case is at all adverse to the view which we have taken. When the court sees no just cause for superseding or suspending the effect of an injunction bond, or undertaking, it should be enforced in pursuance of its terms; and the party for whose benefit it was given will be entitled to an assessment of damages. But then arises the question (not essential, however, to be decided in this case), how the damages should be assessed, and on this point different opinions have been entertained. Sometimes the form of the bond itself, or the order requiring it, or the statute or rule of court under which it is given, prescribes 444 Russell v. Farley. [Sup. Ct. the mode of assessment, as by a reference, or otherwise, as the court shall direct. This is the ordinary course in England, and is that prescribed in Chancellor Walworth’s order, which, as before stated, is followed in several State statutes, and, amongst others, in the statute of Minnesota. In such case no question can arise as to the authority of the Court of Chancery to cause the damages to be assessed under its own direction. But where, as in the present case, no specific provision is made either in the bond, or by any statute or rule of court, and the condition of the bond is simply to pay such damages as the parties enjoined may sustain by reason of the injunction if the court finally decide that the party was not entitled thereto, as before stated some difference of opinion exists as to the power of the Court of Chancery to assess the damages, and whether the only proper method is not an action at law on the bond. The appellants insist that the latter is the only proper and legal course. In the case of Bein v. Heath (12 How. 168, 179), Mr. Chief Justice Taney made this remark: “A court proceeding according to the rules of equity cannot give a judgment against the obligors in an injunction bond when it dissolves the injunction. It merely orders the dissolution, leaving the obligee to proceed at law against the sureties, if he sustains damage from the delay occasioned by .the injunction.” In that case, an injunction bond had been given to stay proceedings on an executory process in the Circuit Court for the District of Louisiana, and, in an action on the bond, that court had given judgment against the sureties, not merely for the damages arising from the delay caused by the injunction, but for the whole debt, interest and costs, in accordance with the law of Louisiana, where injunction bonds are binding to that extent, and where judgment is usually given against the sureties as parties to the cause, on dismissing the injunction, similar to the proceeding against stipulators in admiralty. This court held that the circuit courts sitting in equity could not take such a bond, or give it such effect, and reversed the judgment. The remark that the bond must be prosecuted at law was a mere passing remark; it was so prosecuted in that case; but from the great experience of the Chief Justice, it undoubtedly expressed the prevailing practice with regard to ordinary Oct. 1881.] Russell v. Farley. 445 injunction bonds given under the Maryland statute in cases of injunctions to stay proceedings at law. Whether the remark can be understood as having a wider scope is doubtful. A decision on the point, however, was made by Mr. Justice Curtis, on the first circuit, in the case of Merryfield v. Jones^ 2 Curtis C. C. 306. That was a patent case in which an injunction had been issued upon condition of entering into bond to pay the defendant any damages he might suffer by reason of the injunction if finally determined not to be rightful. On dismissal of the bill, motion was made to refer to a master the question of damages. Mr. Justice Curtis denied the motion, holding that the party’s remedy was an action at law, but he only referred to the case of Bein v. Heath. The opinion is brief, and it does not appear that the question was very fully examined. The learned justice seemed to think that, inasmuch as the bond gave a legal action, the court sitting in equity had no jurisdiction over the question of damages. Other cases are referred to by the counsel of the appellants to sustain their position ; but upon a careful examination we are not satisfied that they furnish any good authority for disaffirming the power of the court having possession of the case, in the absence of any statute to the contrary, to have the damages assessed under its own direction. This is the ordinary course in the Court of Chancery in England, by whose practice the courts of the United States are governed, and seems to be in accordance with sound principle. The imposition of terms and conditions upon the parties before the court is an incident to its jurisdiction over the case; and having possession of the principal case, it is fitting that it should have power to dispose of the incidents arising therein, and thus do complete justice, and put an end to further litigation. We are inclined to think that the court has this power; and that it is an inherent power, which does not depend on any provision in the bond that the party shall abide by such order as the court may make as to damages (which is the usual formula in England) ; nor on the existence of an express law or rule of court (as adopted in some of the States) that the damages may be ascertained by reference or otherwise, as the court may direct; this being a mere appendage to the principal provision requiring a bond to 446 Russell v. Farley. [Sup. Ct. be taken, and not conferring the power to take one, or to deal with it after it has been taken. But whilst the court may-have (we do not now undertake to decide that it has) the power to assess the damages, yet if it has that power, it is in its discretion to exercise it, or to leave the parties to an action at law. No doubt in many cases the latter course would be the more suitable and convenient one. In the present case, however, the court did not attempt to assess any damages which the defendants may have sustained in consequence of the injunction and proceedings in the cause, but decreed that it was not a case for damages; in other words, that the bond ought not to be prosecuted. That damages were sustained is very probable. Such a litigation as this was could hardly fail to result in damage to all the parties engaged in it. But it is generally’’ damnum absque injuria. The question before the court, or at least that which it undertook to determine, was whether, under the circumstances of the case, any damages at all ought to be recovered. Its decision was, that none ought to be recovered; or, in effect, that the bond ought not to be prosecuted. In view of what has already been said, we think that the court had power to decide this question. But the appellants contend that, even if the court had the power to pass upon the question at all, its decision was erroneous, and ought to be reversed on the merits. On this point, the judgment of the court approaches so near to an exercise of discretion, that we should require a very clear case to be made in order to induce us to reverse it. The conduct of the parties and the course of litigation in the court below pass so directly under the inspection of that court, as to give it many advantages which no other court can possess, for forming a correct decision on the question, whether any extra damages should be allowed for the issuance of the injunction. Nevertheless, we have looked at the case with the view of ascertaining whether injustice has been done. And at the very threshold of the inquiry we are met by the prominent fact that the injunction has never been entirely dissolved, and it has never been decided that the complainant was not entitled to it, at least for a portion of the iron claimed by the appellant. The Oct. 1881.] The “ S. S. Osborne.” 447 latter strenuously defended the suit as to the whole; but it turns out, on the final hearing, that as to more than half of it his claim is unsupported, and that the injunction was properly issued. A decree was made accordingly, from which no appeal has been taken. We must presume that it was equitable and just. This fact alone would make a prima facie case for the decree in relation to damages. We have not been able to find anything in the record which leads us to think that it was erroneous or improper. Decree affirmed. Mr. Justice Gray did not sit in this case, nor take any part in'deciding it. The “S. S. Osborne.” 1. Where, to the next Circuit Court, the District Court sitting in admiralty allowed an appeal from its decree, although the same was not, in accordance with its rules, prayed for in writing, the jurisdiction of the Circuit Court at once attached, notwithstanding the failure of the clerk of the District Court to deliver within twenty days, as required by its rules, to the clerk of the Circuit Court the appeal and record. 2. A cross-appeal to this court must be prosecuted as any other appeal, or it will be dismissed. Appeal from the Circuit Court of the United States for the Northern District of Ohio. William G. Winslow and Hezekiah J. Winslow filed their libel in the proper District Court against the schooner “ S. S. Osborne,” alleging that they were the owners of the schooner “ American Union,” and that while she was on her voyage on Lake Michigan the “ S. S. Osborne,” ran into her, whereby she suffered damage, and that the collision was caused solely by the negligence and improper conduct of the “ S. S. Osborne.” The “ S. S. Osborne” was seized, but was subsequently released, on Bliss O. Wilcox, the claimant, entering into the requisite stipulations. He answered the libel by denying its material allegations, and filed a? cross-libel against the “ American Union,” claiming that she was wholly in fault, and that by the collision 448 The “ S. S. Osborne.” [Sup. Ct. the “ S. S. Osborne ” was damaged. The answer to the crosslibel was filed, and, Dec. 26,1877, the District Court dismissed the cross-libel and rendered a decree against the “ S. S. Osborne,” from which on the same day Wilcox appealed. The entry in relation thereto is inserted in the opinion of this court. The Circuit Court, both parties appearing therein, rendered a decree, from which each appealed. The remaining facts are stated in the opinion of this court. Mr. Jacob D. Cox and Mr. S. Prentiss for the claimant. Mr. H. A. Terrell and Mr. Albert Gr. Riddle, contra. Mr. Chief Justice Waite delivered the opinion of the court. The question presented by the appeal of the Winslows is, whether the Circuit Court erred in taking jurisdiction of the appeal of Wilcox from the District Court. Sect. 631 of the Revised Statutes provides that from all final decrees of the District Courts in causes of equity or of admiralty and maritime jurisdictions, except prize causes, where the matter in dispute exceeds fifty dollars, appeals shall be allowed to the Circuit Court next to be held in such district, and the Circuit Court is required to receive, hear, and determine such appeal. It is not declared in this section what shall constitute an appeal from the District to the Circuit Court, any more than it is in sect. 692 what shall be an appeal from the Circuit Court to this court. Admiralty Rule 45 of this court provides that appeals from the District to the Circuit Courts, in admiralty cases, must be made while the court is sitting, or within such other period as shall be designated by the District Court by its general rules, or by an order specifically made in a particular suit, or, in case no such rule or order is made, then within thirty days from rendering the decree; and, Rule 46, that in cases not provided for by the rules of this court, the District and Circuit Courts, may regulate their own practice. The District Court for the Northern District of Ohio provided by rule that appeals in admiralty to the Circuit Court should be taken within ten days from the date of the decree, unless further time was given by a special order of the judge; that the appeal should be in writing and specify particularly Oct. 1881.] The “ S. S. Osborne.” 449 from what part of the decree, if less than the whole, it was taken; whether it was intended to make any new allegations or proofs, and, if so, what; whether it was intended to pray for any other relief, and, if so, what; and further providing that on the trial the appellant should be strictly confined to the specifications in his appeal. The rule also required that the appeal should be filed with the clerk, and from that time, security having been given, it should be considered perfected. It was then made the duty of the clerk, within twenty days, unless a longer time should be allowed by the judge, to prepare and deliver to the clerk of the Circuit Court, together with the appeal, the record required by the fifty-second rule of this court, and that when this was done so much of the case as was appealed should be in the exclusive control of the Circuit Court. In the present case the date of the decree in the District Court was Dec. 26, 1877. At the foot of the decree, and as part of it, is the following: — “And thereupon said Bliss O. Wilcox, claimant of said schooner ‘ S. S. Osborne,’ gave due notice of his intention to appeal this cause to the next Circuit Court, which said appeal is allowed, and bond therefor is fixed at eight thousand dollars. And it is further ordered that the time within which said appeal shall be perfected shall be extended for the period of twenty days from this date.” It does not appear that any formal appeal in writing was ever filed with the clerk of the District Court, but within the time fixed bond for an appeal was given and duly accepted. The record was not filed in the Circuit Court, neither was the cause docketed there until Feb. 27, 1878. This was during the term of the Circuit Court which began on the 15th of January, and which was the term next held after the decree in the District Court. With the record there was filed in the Circuit Court an appeal in writing, such as the rule required. On the 11th of March the Winslows moved the Circuit Court to dismiss the suit, because no appeal in writing had been made, as the rules of the District Court required, and also because the suit had not been docketed in the Circuit Court in time. This motion was denied. The ruling of the Circuit Court to that effect is now assigned for error by the Winslows. vol. xv. 29 450 The “ S. S. Osborne.” [Sup. Ct. An appeal in admiralty from the District to the Circuit Court must be to the term of the Circuit Court held next after the decree, and it must be made while the District Court is sitting, or within the time required by the general rules or a special order. These requirements are jurisdictionaj. They are prescribed either by the act of Congress or by the rules of this court, promulgated under the authority of an act of Congress, and having the force of law. All except this is mere procedure in either the District or Circuit Court. The rule of the District Court, requiring an appeal to be in writing and filed with the clerk, could certainly be dispensed with by that court. It simply prescribed a mode of proceeding to get an appeal, and while it continued in force the court might properly refuse to allow an appeal or accept security until what was required had been done. But if the District Court allows an appeal without the writing, the appellee cannot object to the jurisdiction of the Circuit Court on that account. Here it distinctly appears that Wilcox claimed his appeal while the court was sitting, and that his claim was formally allowed by the court. In this way any further appeal in writing was dispensed with, and when afterwards the bond was given and accepted, the appeal was as clearly perfected as it would have been if a writing, such as the rule required, had been filed with the clerk. From that time the jurisdiction of the Circuit Court attached, and could not be taken away by any act or requirement of the District Court. The provision in the rule of the District Court, that the clerk should prepare and deliver to the Circuit Court the appeal and record in twenty days, cannot prevent the Circuit Court from entertaining the cause if for any reason this is not done. The appeal, when once made, continues during the whole of the next term of the Circuit Court, unless sooner dismissed by that court for want of prosecution or otherwise, in accordance with its own practice. It follows that, so far as the appeal of the Winslows is concerned, the decree must be affirmed. When the decree of the Circuit Court was rendered, both the Winslows and Wilcox appealed to this court. The Winslows filed the transcript and docketed their appeal here on the 19th of September, 1879; but Wilcox neither entered his Oct. 1881.] Ex parte Slayton. 451 appearance as an appellant in this court, nor did anything to make himself an actor in reference to his own appeal, until March 23, 1882, the day before the cause was called for hearing. Under these circumstances we must decline to consider his appeal. Grigsby v. Purcell, 99 U. S. 505. Rule 9 of this court requires every plaintiff in error or appellant, on docketing his cause, to have the appearance of counsel entered; and Rule 10, that he secure the costs. Cross-appeals must be prosecuted like other appeals. Every appellant, to entitle himself to be heard on his own appeal, must appear here as an actor in his own behalf by having the appearance of counsel entered and giving the security required by the rules. Otherwise, if he is here as appellee on the appeal of his adversary, he will be heard only in support of the decree as it was entered below. If he asks affirmative relief beyond what he got below, he must enter himself in this court in due time as the prosecutor of his own appeal, even though his adversary has docketed the case against him. Decree affirmed. The appeal of Wilcox dismissed for want of prosecution. Ex parte Slayton. The owner of a vessel may, before he or it is sued, institute appropriate proceedings in a court of competent jurisdiction, to obtain the benefit of the limitation of liability provided for by sects. 4284 and 4285 of the Revised Statutes. Petition for a writ of prohibition. The facts are stated in the opinion of the court. Mr. Alfred Russell for the petitioner. Mr. J. H. McGowan, contra. Mr. Chief Justice Waite delivered the opinion of the court. We are of opinion that, notwithstanding Admiralty Rules Nos. 54, 55, 56, and 57 of this court, the owner of a vessel may institute appropriate proceedings, in a court of competent juris 452 Ex parte Slayton. [Sup. Ct. diction, to obtain the benefit of the limitation of liability provided for by sects. 4284 and 4285 of the Revised Statutes, without waiting for a suit to be begun against him or his vessel for the loss out of which the liability arises. As was said at this term in The Scotland (supra, p. 24), our rules were not intended to prevent an owner from availing himself of any other remedy or process which the law itself entitled him to adopt, but to aid him in bringing into concourse those having claims against him arising from the acts of the master or crew. Section 4284 expressly allows the owner to institute appropriate proceedings in any court, that is to say, any court of competent jurisdiction, for the purpose of apportioning among the proper parties the sum for which he is liable. Sect. 4285 provides, that it shall be deemed a sufficient compliance on his part with the requirements of the act if he shall transfer all his interest in the vessel and freight to a trustee, appointed by the court for the persons who may prove to be legally entitled thereto. Any court, therefore, which gets actual possession of the-things to be transferred, and about which the concourse of claimants is to be had, is a court of competent jurisdiction to try the questions that will properly arise upon the apportionment to be made. Even though he should institute proceedings before he or his vessel is sued, the courts will either follow our rules as far as practicable^ or do something which is equivalent, to obtain jurisdiction of the thing about which the litigation is to be had. No monition can properly issue either under the operation of our rules, or otherwise, until this jurisdiction of the thing has been in some way secured. On looking into the return of the district judge in this case we find that the proceedings were instituted by the owner of the steamer “ Alpena ” in the district where the port is situated, to which the steamer was bound, at the time the loss occurred, on one of her regular trips between Grand Haven, Mich., and Chicago, Ill.; that the steamer lies sunk in Lake Michigan ; that some portions of the wreck were washed ashore in Michigan between Grand Haven and Chicago; that on filing the petition an order was entered by the court appointing a trustee, such as was provided for in the statute, and requiring the owner to transfer to him all its right, title, and interest to Oct. 1881.] Ex parte Slayton. 453 whatever remained of the steamer, her tackle, apparel, and furniture, and the pending freight; that such a transfer was made, and freight, admitted to be pending, amounting to $196, actually paid over, and that when this was done the monition issued. It is true the return does not expressly show that the remnants of the wreck, scattered on the shores of the lake, have actually been gathered together and brought within the northern district of Illinois; but it is stated that the transfer has been made and the freight-money paid over. This is . not denied. Such being the case, we cannot say the court (upon the showing here made) has not acquired jurisdiction of the thing about which the litigation arises, to wit, the fund to be apportioned among the parties who may prove to be legally entitled thereto. It has the freight-money in its possession, and its trustee is in a condition to gather up the remnants of the vessel if it has not already been done. The jurisdiction of the court is not dependent at all on the amount, but on the rightful possession of that which is to be divided. We cannot, on an application for a writ of prohibition, determine what shall be the effect of any judgment of the District Court while exercising its rightful jurisdiction, neither are we to determine in this form of proceeding what persons, or what classes of persons, are entitled to the fund in hand. All these are questions to be settled in some other way than by prohibiting the court from proceeding under the jurisdiction it has acquired by getting possession, in an appropriate manner, of that which, according to the claim of the owner, represents the extent of his liability, or that of his vessel. Whether it does so or not is to be settled between the parties when the case is tried. With the possession and control of the property the court has jurisdiction. Petition denied. 454 Louisiana v. Taylor. [Sup. Ct. Louisiana v. Taylor. 1. The court again decides that section fourteen of the eleventh article of the Constitution of Missouri of 1865 {infra, p. 456) did not withdraw or curtail any authority which a municipal corporation then possessed to subscribe for sto/ik in, or loan its credit to, a railroad company. 2. The charter of the Louisiana and Missouri River Railroad Company, granted by the act of the General Assembly of Missouri, approved March 10, 1859, conferred upon the city of Louisiana power to subscribe to the stock of that company. By its act of incorporation, passed June 12, 1866, the city was authorized to pay for its subscription by the issue of bonds, if the ordinance providing therefor was approved by a majority of the votes cast at any general election held in the city, or at one expressly ordered for the purpose. 3. The power thus conferred was not affected by the general railroad law of 1866. Error to the Circuit Court of the United States for the Eastern District of Missouri. The facts are stated in the opinion of the court. Mr. James 0. Broadhead and Mr. David P. Dyer for the plaintiff in error. Mr. Clinton Rowell and Mr. Thomas K. Skinker for the defendant in error. Mr. Justice Matthews delivered the opinion of the court. Taylor, a citizen of Illinois, brought this action against the city of Louisiana, a municipal corporation of Missouri, to recover the amount alleged to be due upon certain bonds and coupons issued by the latter in payment of a subscription to the capital stock of the Louisiana and Missouri River Railroad Company, a corporation authorized by law to construct, and which has constructed in pursuance thereof, a railroad from the city of Louisiana to the Missouri River. The bonds sued on were dated, some in September, others in October and in November, 1869. They matured on Jan. 1,1876,1877, and 1878, and, together with the coupons, falling due since January, 1876, remain unpaid., AH coupons maturing previously, together with the principal of a portion of the whole issue of bonds, had been paid by taxes regularly levied and collected by the proper authorities of the city, from the year 1867 to 1876. Oct. 1881.] Louisiana v. Taylor. 455 Certificates of the stock in the railroad company were issued in pursuance of the subscription, and were accepted by the city, which has ever since exercised its rights as a stockholder. The defence was that the bonds were void for want of power in the municipal corporation to issue them. There was a judgment in favor of the plaintiff below, to reverse which this writ of error is prosecuted. Each of the bonds sued on contains a recital that it “ is issued by the city of Louisiana under authority of the General Assembly of the State of Missouri, entitled ‘ An Act incorporating the Louisiana and Missouri River Railroad Company,’ approved March 10, 1859 ; also an ordinance of the city council of the city of Louisiana, No. 502, passed June 12, 1866.” The reference to the railroad charter is to the twenty-ninth section of the act of incorporation, which reads as follows : — “ Sect. 29. It shall be lawful for the county court of any county in which any part of the route of said railroad may be, to subscribe to the stock of said company, and it may invest its funds in stock of said company and issue the bonds of such county to raise funds to pay the stock thus subscribed, and to take proper steps to protect the interest and credit of the county. Such county court may appoint an agent to represent the county, vote for it, and receive its dividends ; and any city, town, or incorporated company may subscribe to the stock of said railroad company and appoint an agent to represent its interests, give its vote, and receive its dividends, and may take proper steps to guard and protect the interests of said city, town, or incotporation.” The tenth section of the act incorporating the city of Louisiana, passed Feb. 16, 1865, was as follows : — “ The city shall have power to subscribe for stock in any incor-porative railway company connecting with the city of Louisiana, or give any bonus to any institution of learning, by submitting an ordinance making the appropriation, or authorizing the issue of bonds for any such purpose, to a vote of the qualified voters of the city, at any gênerai election held in the city, or at any special election expressly ordered, at which election the majority of the votes cast shall be for such ordinance : Provided, the debt of the city shall never exceed one hundred and fifty thousand dollars.” 456 Louisiana v. Taylor. [Sup. Ct. In pursuance of this provision of the city charter, the city council, on June 12, 1866, passed ordinance No. 502, recited in the bonds in suit, providing for an election to be held on the first Tuesday in July, 1866, on the proposition to subscribe for stock in the Louisiana and Missouri River Railway Company for an amount not exceeding $50,000. The election provided for by this ordinance was in fact held, the result of which was, that 176 votes were cast in favor of the proposition and 46 against it. Thereupon, the city council passed an ordinance authorizing the subscription of $50,000 to the capital stock of the railway company, and the issue of bonds for the payment of the same. The subscription was made and the bonds were delivered. The Constitution of Missouri that went into operation July 4, 1865, sect. 14 of art. 11, contains the following provision : “ The General Assembly shall not authorize any county, city, or town to become a stockholder in, or to loan its credit to, any company, association, or corporation, unless two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent thereto.” Section 3 of article 2 is as follows: “ All statute laws of this State now in force, not inconsistent with this Constitution, shall continue in force until they shall expire by their own limitation, or be amended or repealed by the General Assembly.” At its first session after the adoption of this Constitution, the General Assembly of Missouri passed a general railroad law (Rev. Stat. Missouri, 1865, p. 372), which it is claimed went into effect March 19, 1866, and which contained the provision following, to wit: “ It shall be lawful for the county court of any county, the city council of any city, or the trustees of any incorporated town to take stock for such city, county, or town, in, or to loan the credit thereof to, any railroad company duly organized under this or any law of this State: Provided, that two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent to such subscription.” At the same session of the legislature, it was also enacted Oct. 1881.] Louisiana v. Taylor. 457 (Rev. Laws of Missouri, c. 224, sect. 6, p. 882) that “ all acts and parts of acts of a private, local, or temporary nature, or specifically applicable to particular cities or counties, in force on the first day of November, A. D. 1865, not repealed by or repugnant to the provisions of the General Statutes or some act of the present General Assembly, shall continue in force or expire, according to their respective provisions or limitations.” These are all the statutory provisions, supposed by counsel for the respective parties to have any material bearing upon the question at issue. The power to subscribe to the capital stock of the railroad company is expressly given to the city of Louisiana by the twenty-ninth section of the charter of the former. Whether that grant of power carries with it the incidental authority to pay its subscription by an issue of bonds, or whether, upon a fair construction of the terms of that section, the exercise of such an authority is within the meaning of the law, it is not necessary for us to discuss or decide ; for whatever might be a proper construction of the section, if it stood by itself, we think it must, at the time when the bonds in suit were issued, be interpreted in connection with the tenth section of the city charter, which had in the mean time been enacted. That section, in explicit terms, recognized and thereby conferred upon the city, the power to issue bonds in payment of its subscription to the stock of any railway company connecting with it, upon condition, however, of the approval of the ordinance authorizing the issue, by a majority of the votes cast at an election held for that purpose ; and we think that limitation must be taken, thereafter, as imposed upon the power granted to the city in the railway charter. Such was, in fact, the construction put by the city upon its own powers, for the bonds in suit purport to be issued in pursuance of authority conferred by a majority of the votes cast at such an election, approving the ordinance passed to that end. The ordinance submitted to the vote of the electors at that election, authorizing the issue of the bonds, was, we think, in all respects in conformity with the law, and sufficient. But it is contended by thé plaintiff in error that the provision of the city charter, in accordance with which it was passed, had 458 Louisiana v. Taylor. [Sup. Ct. been repealed before the vote was taken, and the subscription made. It has been repeatedly held by the Supreme Court of Missouri, in decisions approved and followed uniformly by this court, that such repeal is not the direct and immediate result of the Constitution itself ; that, on the contrary, the prohibition contained in that instrument is a limitation merely upon the power of the legislature for the future, so that it should not thereafter grant to municipal corporations authority to become stockholders in companies except upon the terms expressly mentioned, and that all previous grants of such authority remain in their original force until duly revoked, unaffected by the constitutional provision. County of Callaway v. Foster, 93 U. S. 567; County of Scotland v. Thomas, 94 id. 682; County of Henry v. Nicolay, 95 id. 619; County of Kay v. Vansyele, 96 id. 675; County of Schuyler v. Thomas, 98 id. 169; County of Cass v. Gillett, 100 id. 585. It is argued, however, that the repeal of the provision in question was effected by the seventeenth section of the general railroad law, which it is claimed took effect March 19, 1866, before the passage of the ordinance No. 502, June 12, 1866. But this position, in our opinion, is also untenable. The act in question is an enabling statute, passed in execution of the powers authorized by the Constitution, then recently adopted. It was general in its provisions, conferring power upon any county, city, or town to take stock in, or to loan its credit to, any railroad company, duly organized under any law of the State, upon the assent of two-thirds of the qualified voters thereof. It does not revoke any previous grants of similar authority. It repeals no existing provisions of law. It contains no words of prohibition. The sixth section of chapter 22 of the same session, “ of the general statutes and their effect,” &c. (Rev. Stat. Mo. 882), expressly continues in force “all acts and parts of acts of a private, local, or temporary nature, or specifically applicable to particular cities or counties, in force on the first day of November, A. D. 1865, not repealed by or repugnant to the provisions of the General Statutes or some act of the present General Assembly,” until they expire, according to their respective provisions or limitations. There Oct. 1881.] Louisiana v. Taylor. 459 is no repugnancy between the tenth section of the charter of the city of Louisiana and the seventeenth section of the general railroad law. One is a definite, express, and special provision, in reference to such railways only as connect with the city; the other has relation to possible proposals for subscription to the stock of any railroad company, whether its railroad connected with the city or not. The subjects of the two statutes are not the same ; and there is no such inconsistency between them as that both may not stand and operate. It would not be legitimate to construe the seventeenth section of the general railroad act as if it forbade everything it did not authorize; and it is only by such a construction that the repugnancy with the tenth section of the charter of the city can be made to arise. The very question mooted here was decided by the Supreme Court of Missouri at the October Term, 1867, in the case of the State, ex rel., ^c., v. Macon County Court, 41 Mo. 453. It was there said by the court: “ There is no such inconsistency between the acts that they may not both stand and be carried into operation. A general prohibition against subscribing for stock in any corporation may well subsist with a permission to subscribe for stock in a particular corporation. Besides, the seventeenth section of the general railroad law, with which the enabling act is supposed to conflict, uses no negative words. It uses words to express and permit future acts, and there is nothing to show that it intended to operate on existing or past laws even by implication. It was framed after the Constitution was adopted, and the conclusion is undeniable that it was intended simply to make the law conform to and carry out the fourteenth section of the eleventh article of that instrument.” This decision is upon the very point, and is a judgment of the Supreme Court of the State in a case which, in its circumstances, we find it impossible to distinguish from the present. Its authority was confirmed by the same court in Smith v. County of Clark, 54 id. 58. This view of the case disposes of all objections to the judgment of the Circuit Court. It is accordingly Affirmed. 460 Telegraph Co. v. Texas. [Sup. Ct. Telegraph Company v. Texas. 1. In respect to its foreign and inter-state business, a telegraph company is, as an instrument of commerce, subject to the regulating power of Congress, and, if it accepts the provisions of title 65 of the Revised Statutes, it becomes an agent of the United States, so far as the business of the government is concerned. 2. Where it has accepted those provisions, State laws, so far as they impose upon it a specific tax on each message which it transmits beyond thè State, or which an officer of the United States sends over its lines on public business, are unconstitutional. Error to the Supreme Court of the State of Texas. The Western Union Telegraph Company is a New York corporation engaged in the business of transmitting telegrams at fixed rates of compensation. Its lines extend into and through most of the States and Territories of the United States, and to Washington, in the District of Columbia. It has availed itself of the privileges and subjected itself to the obligations of title 65 of the Revised Statutes relating to telegraph companies, and its lines connect with those owned and established by the government of the United States for public purposes. It has one hundred and twenty-five offices in the State of Texas, and is in close communication with other telegraph companies doing business in this country and abroad. By sect. 1 of art. 8 of the Constitution of Texas the legislature is authorized to “ impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing business in the State ; ” and by art. 4655 of the Revised Statutes, enacted under that provision, every chartered telegraph company doing business in the State is required to pay a tax of one cent for every full-rate message sent, and one-half cent for every message less than full rate. This tax is to be paid quarterly to the comptroller of the State on sworn statements made by an officer of the company. In addition to this, taxes must be paid on the real and personal property of the company in the State. Between Oct. 1, 1879, and July 1, 1880, the company sent over its lines from its offices in Texas 169,076 full rate, and Oct. 1881.] . Telegraph Co. v. Texas. 461 100,408 less than full rate, messages. A large portion of them were sent to places outside of the State, and by the officers of the government of the United States on public business. The company neglected to pay the tax imposed, and a suit was brought in one of the courts of the State for its recovery. In defence it was insisted that the law imposing the tax was in conflict with the Constitution and laws of the United States, and, therefore, void. The Supreme Court of the State, on appeal, sustained the law, and directed a judgment against the company for the full amount claimed, allowing no deductions for messages sent out of the State, or by government officers on government business. To reverse that judgment this writ of error was sued out. The case was argued by Mr. Wager Swayne for the plaintiff in error. Mr. J. H. Me Leary, Attorney-General of Texas, and Mr. Philip Phillips appeared for the defendant in error. The following is an abstract of their argument: — The act of Congress “ to aid in the construction of telegraph lines ” confers the right to construct them over the public domain and along the military or post roads of the United States, and for this purpose authorizes the companies to use stone, lumber, and other materials found on the public land. It then provides that as to the companies acting under the provisions of the act, the messages sent by the government “ shall have priority over all other business, at such rates as the Postmaster-General shall annually fix,” the government reserving the right to purchase their lines. This company, by accepting the act, was, therefore, bound to give the messages of the government priority over all other business, at such rates as should be determined by the Postmaster-General ; but it incurred no other obligation. The act contains no provision inconsistent with the exercise of the taxing power of the States, and if Texas has the right to impose the tax in question on a company that had not accepted the act, this company cannot by accepting it elude that power. The use of the line by the government for the transmission of messages does not constitute the company such an agency as to exempt it from State taxation. Osborn v. Bank of the 462 Telegraph Co. v. Texas. [Sup. Ct United States, 9 Wheat. 738; Thomson v. Pacific Railroad, 9 Wall. 579; Railroad Company v. Peniston, 18 id. 5. Is the act under consideration void as being in conflict with the power vested in Congress to regulate commerce among the States ? A State, while it cannot regulate either foreign or interstate commerce, may do many things which more or less affect it. It may tax a vessel used in commerce, and the stages employed in the transportation of the mail. But this does not regulate commerce or the conveyance of the mail. And yet, in both instances, the tax on the property in some degree affects its use. This tax may enhance the cost of messages, many of which are transmitted beyond the State, but the statute imposing it is not an attempted regulation of commerce. If the tax had been a specific sum for carrying on the business of telegraphy, or on an assessment of the property of the company, or upon its gross receipts, no argument in keeping with the decisions of this court could successfully assail its validity. We then have a question touching the relation of the States to the general government involving the vital power of taxation, reduced to an inquiry into the mere phraseology of the act levying the tax. Let it be admitted that the tax is on the message and not on the company. Are telegraph messages to be regarded as articles of commerce passing through the State? Many of them doubtless relate to commercial transactions, as an order to buy or an order to sell; but such an order is not an article of commerce, nor is it property in the sense we are now considering it. The tax is not, however, laid on the message, but on the company for the number of messages sent. It is, by the very terms of the act, payable quarterly, on the statement of the company, so that it was collected long after they were sent. It is, in effect, a tax upon the company’s quarterly business. In sustaining the tax in State Tax on Railway Gross Receipts (15 Wall. 284), the court said: “ The tax is not levied until the expiration of each half-year, and until the money received for freights and other sources of income has actually Oct. 1881.] Telegraph Co. v. Texas. 463 come into the company’s hands. Then it has lost its distinctive character as freight by having become incorporated into the general mass of the company’s property.” If the tax in this case had been confined to messages between points within the State, no argument could be made to invalidate the act. This being so, as the act makes no discrimination, its legality cannot be impeached on the ground that a portion of the messages were sent through and beyond the limits of the State. Osborne v. Mobile (16 Wall. 479) is decisive of this case. It was tried on an agreed statement of facts, from which it appears that the express company was engaged in a business extending beyond the limits of the State in carrying merchandise of every kind, including articles of commerce, between different States, as well as goods and merchandise from foreign countries, and articles imported in the original packages; that the company was at times employed by the officials of the United States in transporting the funds of the government; that the company, which was incorporated by the State of Georgia, was subject to and had paid city and county taxes on its property, and the tax levied by the United States. The tax complained of as unconstitutional was levied by virtue of a city ordinance, which provided that “ every express company, or railroad company, who shall do business in the city of Mobile, and whose business extends beyond the limits of the State, shall pay an annual license of $500, if within the limits of the State $100, and if within the limits of the city $50.” The act, it was maintained, was void because of the nature of the business on which the tax was imposed. The Chief Justice delivered the unanimous opinion of the court sustaining a license tax for the privilege of doing an express business, the company being engaged in inter-state commerce, notwithstanding the record showed that the company was taxed upon its property. That case was decided at the term when Case of the State Freight Tax and State Tax on Railway Grross Receipts were disposed of. The point of decision in each is referred to, and the decision thus concludes : — “ The license tax was upon a business carried on within the city of Mobile. The business licensed included transpor 464 Telegraph Co. v. Texas. [Sup. Ct. tation beyond the limits of the State, or rather the making of contracts within the State for such transportation beyond it. It was in reference to this feature of the business that the tax was in part imposed; but it was no more a tax upon interstate commerce than a general tax on drayage would be because the licensed drayman might sometimes be employed in hauling goods to vessels to be transported beyond the limits of the State.” Mr. Chief Justice Waite, after stating the case, delivered the opinion of the court. In Pensacola Telegraph Co. v. Western Union Telegraph Co. (96 U. S. 1), this court held that the telegraph was an instrument of commerce, and that telegraph companies were subject to the regulating power of Congress in respect to their foreign and inter-state business. A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits. Congress, to facilitate the erection of telegraph lines, has by statute authorized the use of the public domain and the military and post roads, and the crossing of the navigable streams and waters of the United States for that purpose. As a return for this privilege those who avail themselves of it are bound to give the United States precedence in the use of their lines for public business at rates to be fixed by the Postmaster-General. Thus, as to government business, companies of this class become government agencies. The Western Union Telegraph Company having accepted the restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of foreign and inter-state commerce, and of a government agent for the transmission of messages on public business. Its property in the State is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its Oct. 1881.] Telegraph Co. v. Texas. 465 occupation and its business. The precise question now presented is whether the power to tax its occupation can be exercised by placing a specific tax on each message sent out of the State, or sent by public officers on the business of the United States. In Case of the State Freight Tax (15 Wall. 232) this court decided that a law of Pennsylvania requiring transportation companies doing business in that State to pay a fixed sum as a tax “ on each two thousand pounds of freight carried,” without regard to the distance moved, or charge made, was unconstitutional, so far as it related to goods taken through the State,' or from points without the State to points within, or from points within to points without, because to that extent it was a regulation of foreign and inter-state commerce. In this the court but applied the rule, announced in Brown v. Maryland (12 Wheat. 419), that where the burden of a tax falls on a thing which is the subject of taxation, the tax is to be considered as laid on the thing rather than on him who is charged with the duty of paying it into the treasury. In that case, it was said, a tax on the sale of an article, imported only for sale, was a tax on the article itself. To the same general effect are Welton v. State of Missouri, 91 U. S. 275; Cook v. Pennsylvania, 97 id. 566; and Webber v. Virginia, 103 id. 344. Taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers, in Passenger Cases, 7 How. 283; Crandall v. State of Nevada, 6 Wall. 35; and Henderson n. The Mayor, 92 U. S. 259. Taxes on vessels according to measurement, without any reference to value, were declared to be taxes on tonnage. State Tonnage Cases, 12 Wall. 204; PeeteN. Morgan, 19 id, 581; Cannon v. New Orleans, 20 id. 577; and Inman Steamship Co. v. Tinker, 94 U. S. 238. The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate, the tax is one cent, and if less than VOL. XV. 30 466 Telegraph Co. v. Texas. [Sup. Ct. full rate, one-half cent. Clearly if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and inter-state commerce and beyond the power of the State. That is fully established by the cases already cited. As to the government messages, it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers, and, therefore, void. It was so decided in McCulloch v. Maryland (4 Wheat. 316) and has never been doubted since. It follows that the judgment, so far as it includes the tax on messages sent out of the State, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of a State, and does not affect other nations or States or the Indian tribes, that is to say, the purely internal commerce of a State, belongs exclusively to the State, is as well settled as that the regulation of commerce which does affect other nations or States or the Indian tribes belongs to Congress. Any tax, therefore, which the State may put on messages sent by private parties, and not by the agents of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the Constitution of the United States. Whether the law of Texas, in its present form, can be used to enforce the collection of such a tax is a question entirely within the jurisdiction of the courts of the State, and as to which we have no power of review. The judgment of the Supreme Court of Texas will be reversed, and the cause remanded with instructions to reverse the judgment of the District Court, and proceed thereafter as justice may require, but not inconsistently with this opinion; and it is So ordered. Oct. 1881.] Thatcher v. Rockwell. 467 Thatcheb v. Rockwell. After suit brought, proceedings were instituted wherein the plaintiff was duly-adjudged to be a bankrupt and assignees were appointed. Held, that his bankruptcy cannot be set up by the defendants to bar its further prosecution in his name, if either the assignees expressly consent thereto, or the claim sued on was, four months before the proceedings, transferred by him in good faith and for a valuable consideration to a party for whose use and benefit the suit was brought. Motion to dismiss a writ of error to the Supreme Court of the State of Colorado, with which is united under Rule 6 a motion to affirm the judgment. On the 10th of June, 1875, Rockwell, the defendant in error, brought an action of assumpsit against Thatcher & Standley, the plaintiffs in error, in a State court of Colorado. The declaration on which the trial was had contained the common counts only. The original pleas were the general issue, payment, and set-off; but on the 26th of March, 1877, a supplemental plea was filed, to the effect that on the 26th of May, 1876, Rockwell had been adjudicated a bankrupt, and on the 14th of July, 1876, an assignee appointed, to whom the claim in suit passed under the operation of the bankrupt law; wherefore the defendants “ prayed judgment if said plaintiff could longer have or maintain his action against them.” To this plea a replication was filed confessing the bankruptcy and the appointment of an assignee, but averring that the claim in suit had been assigned to Kate Rockwell and L. C. Rockwell in November, 1875, and did not pass to the assignee. It was also averred that the suit was prosecuting for the use and benefit of the persons to whom the transfer had been made, and that the assignee in bankruptcy claimed no interest whatever therein. To the replication the defendants rejoined, denying the assignment to the Rockwells. Upon this issue, among others, a trial was had, and at the conclusion of the testimony the defendants asked the court to instruct the jury, “That if they believe from the evidence that the plaintiff, after the commencement of the suit, filed his petition in bankruptcy and was adjudged a bankrupt, and an assignee in bankruptcy was appointed, then the plaintiff 468 Thatcher v. Rockwell. [Sup. Ct cannot recover in this action ; for if he had any legal claim against the defendants at the time the assignee in bankruptcy was appointed, the same vested in the assignee in bankruptcy.” This instruction was refused, and the court charged : “ That if the jury believe from the evidence that Watson B. Rockwell, previous to his bankruptcy, assigned the claim now in suit to his wife Kate and L. C. Rockwell, one-half to' each, for a valuable consideration, that this suit is well maintained in W. B. Rockwell’s name for their use and benefit, notwithstanding you may believe from the evidence that Rockwell was adjudged a bankrupt in May, A. D. 1876. “ That the defendants cannot avail themselves of the bankruptcy of the plaintiff if the jury believe from the evidence that the money claimed was assigned to the said Kate Rockwell and L. C. Rockwell four months before Rockwell’s petition in bankruptcy was filed, and even if there had been no assignment of this claim the defendants could not avail themselves of the bankruptcy, if it appeared from the evidence that the assignee in bankruptcy expressly consented that the plaintiff might continue to prosecute the claim in his own name in this court.” Exceptions were taken in due form and incorporated into the record. The case is here on a writ of error to the Supreme Court of the State for the review of a judgment overruling these exceptions. Mr. J. Q. Charles and Mr. James B. Belford in support of the motion. Mr. Henry M. Teller, contra. Mb. Chief Justice Waite, after stating the case, delivered the opinion of the court. By the exceptions to the charge a Federal question is undoubtedly presented upon the record. The court was asked to decide that the proceedings in bankruptcy were a bar to the further prosecution of the suit in the name of the bankrupt. This was refused, and the jury were told that they might bring in a verdict for the plaintiff notwithstanding the bankruptcy, if they found in his favor on the other issues, and the claim Oct. 1881.] Thatcher v. Rockwell. 469 had been assigned, as alleged in the replication, more than four months before the petition in bankruptcy was filed. We must, therefore, overrule the motion to dismiss, but what the court did was so clearly right, that we are not inclined to retain the cause for further consideration on its merits. An assignment in bankruptcy only transfers to the assignee such property as the bankrupt had when the petition in bankruptcy was filed. If in point of fact the claim in suit had been transferred by the bankrupt more than four months before the proceedings in bankruptcy were begun, the assignee in bankruptcy had no interest whatever in the suit that was pending, because, from the time of the transfer the transferees became entitled to the benefit of any recovery that might be had. The suit, though in the name of the bankrupt, was in fact for and on account of the transferees, whose trustee the bankrupt became when the transfer was completed. The further charge of the court to the effect, that if the assignee expressly consented that the bankrupt might continue to prosecute the suit in his own name, the defendants could not avail themselves of the bankruptcy as a defence, was also right. By sect. 5047, Rev. Stat., the assignee may prosecute or defend suits pending in the name of the bankrupt at the time of the bankruptcy, but there is nothing which renders it necessary for him to make himself a party on the record to do what is thus allowed. What was said in Herndon v. Howard (9 Wall. 664) must be construed in connection with the case then under consideration, which was an application by an assignee to be substituted in this court for the original appellant, who had become bankrupt after the appeal was taken. The true rule is stated in Eyster v. Graff, 91 U. S. 521 ; Burbank v. Bigelow, 92 id. 179; Norton v. Switzer, 93 id. 355 ; Jerome v. M' Carter, 94 id. 734; M'Henry v. La Société Française, ^c., 95 id. 58; and Davis v. Friedlander, 104 id. 570. These cases, although the bankrupt happened to be a defendant, establish the doctrine that under the late bankrupt law the validity of a pending suit, or of the decree or judgment therein, was not affected by the intervening bankruptcy of one of the parties ; that the assignee might or might not be made a party ; and whether he was so or not, he was equally bound with any 470 Bridge Co. v. United States. [Sup. Ct. other party acquiring an interest pendente Ute. It is no defence to the debt that the creditor has become a bankrupt; and if an assignee, after notice, permits a pending suit to proceed in the name of the bankrupt for its recovery, he is bound by any judgment that may be rendered. This is a sufficient , protection for the debtor. The motion to dismiss is denied, but that to affirm Granted. Bridge Company v. United States. 1. Congress, in the exercise of its power over the navigable waters of the United States, which is derived from the commerce clause of the Constitution, gave, by resolution (infra, p. 473), its assent that a bridge across the Ohio at Cincinnati might be constructed in accordance with the terms of a charter conferred by State laws ; but in case the free navigation of the river should at any time be substantially and materially obstructed by the contemplated bridge, the right to withdraw such assent, or to direct the necessary modifications and alterations, was reserved. While the bridge was erecting, in compliance with the provisions of law, Congress, by statute (infra, p. 473), declared that it should be unlawful to proceed therewith, unless certain specified changes should be made. The company made them, and completed the bridge according to the altered plan. Held, 1. That in view of the legislation of Congress the resolution is the paramount law by which the rights involved are to be determined, and that the company, by accepting its provisions, became subject to all the limitations and reservations of power which Congress deemed fit to impose. 2. That the withdrawal by Congress of its assent is, for the purposes of this case, equivalent to a positive enactment that, notwithstanding State legislation, the further maintenance of the bridge according to the plan first prescribed was unlawful. 3. That Congress, by requiring changes and modifications to which the company conformed, incurred no liability to the latter. 2. Congress could withdraw its assent whenever it determined that in regard to the construction of the bridge other requirements than those originally prescribed were essential to secure due protection to the navigation of the river. Appeal from the Circuit Court of the United States for the Southern District of Ohio. On the 5th of February, 1868, the General Assembly of Kentucky passed an act to incorporate the Newport and Cin Oct. 1881.] Bridge Co. v. United States. 471 cinnati Bridge Company, with power to build a bridge across the Ohio River between Newport and Cincinnati. This charter provided “ that the said bridge shall be constructed so as not to obstruct the navigation of the Ohio River further than the laws of the United States authorize.” On the 3d of April, in the same year, the General Assembly of Ohio enacted a statute authorizing the creation and organization of corporations to build bridges across the same river. This act, in order that the bridges to be built might not obstruct navigation, provided that they should be erected “ in accordance with the provisions of an act of Congress approved July 14, 1862, entitled ‘An Act to establish certain post-roads,’ or of any act that Congress may hereafter pass on the same subject.” Its eleventh section is as follows: — “ Sect. 11. That any such company may fix or change the span and altitude of any bridge which it may erect and construct across the Ohio River: Provided, that the span of any such bridge be not less than three hundred feet in the clear over the main channel, and not less than two hundred and twenty feet in the clear in one of the next adjoining spans, and the height of the bridge in the centre of the span over the main channel shall not be less than one hundred feet above the surface of the water at low water, measuring for such elevation to the bottom chord of the bridge, and such height above extreme high-water mark as may be provided in any act of Congress now in force, or which may hereafter be passed ; but this section shall not apply to any bridge built with a draw, in accordance with the provision of an act of Congress approved July 14, 1862, entitled ‘An Act to establish certain postroads,’ or any act that Congress may hereafter pass upon the subject.” On the same day this act was passed, the Newport and Cincinnati Bridge Company was organized under it in Ohio to build a bridge between Cincinnati and Newport. Afterwards, on the 16th of April, 1868, the Kentucky and Ohio companies, pursuant to provisions in their respective charters, were consolidated, and became one corporation, with the general powers which the divisional companies originally possessed. 472 Bridge Co. v. United States. [Sup. Ct. The material provisions of the act of July 14, 1862, c. 167, entitled “ An Act to establish certain post-roads” (12 Stat. 569), are as follows : — “ Sect. 3. And be it further enacted, that it shall be lawful for any other railroad company or companies whose line or lines of road may now or shall hereafter be built to the Ohio River above the mouth of the Big-Sandy River, in accordance with the terms of the charter or charters of such company or companies, to build a bridge across said river for the more perfect connection of any such roads, and for the passage of trains thereof, under the limitations and conditions hereafter provided. “ Sect. 4. And be it further enacted, that any bridge erected under the privileges of this act may, at the option of the company or companies building the same, be built either as a drawbridge, with a pivot or other form of draw, or with unbroken or continuous spans: Provided, that if the said bridge shall be made with unbroken and continuous spans, it shall not be of less elevation than ninety feet above low-water mark over the channel of the said river, nor in any case less than forty feet above extreme high water, as understood at the point of location, measuring for such elevation to the bottom chord of the bridge. Nor shall the span of such bridge covering the main channel of the river be less than three hundred feet in length, with also one of the next adjoining spans of not less than two hundred and twenty feet in length, and the piers of said bridge shall be parallel with the current of the river as near as practicable: And provided also, that if any bridge built under this act shall be constructed as a drawbridge, the same shall be constructed with a span over the main channel of the river, as understood at the time of the erection of the bridge, of not less than three hundred feet in length, and said span shall not be less than seventy feet above low-water mark, measuring to the bottom chord of the bridge, and one of the next adjoining spans shall not be less than two hundred and twenty feet in length; and also that there shall be a pivot draw constructed in every such bridge at an accessible and navigable point, with spans of not less than one hundred feet in length on each side of the central or first pier of the draw : And provided also, that said draw shall always be opened promptly, upon reasonable signal, for the passage of boats whose construction may not, at the time, admit of their passing under the permanent spans of said bridge, except that said draw shall not be required to be opened when engines or Oct. 1881.] Bridge Co. v. United States. 473 trains are passing over said bridge, or when passenger trains are due; but in no case shall unnecessary delay occur in the opening of said draw after the passage of said engines or trains.” On the 3d of March, 1869, Congress passed a resolution entitled “ A resolution giving the assent of the United States to the construction of the Newport and Cincinnati bridge.” 15 Stat. 347. It is as follows: — “ Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the consent of Congress be, and the same is hereby, given to the erection of a bridge over the Ohio River from the city of Cincinnati, Ohio, to the city of Newport,. Kentucky, by the Newport and Cincinnati Bridge Company, a corporation chartered and organized under the laws of each of the States of Kentucky and Ohio: Provided, that said bridge is built with an unbroken or continuous span of not less than four hundred feet in the clear, from pier to pier, over the main channel of the river, and is built in all other respects in accordance with the conditions and limitations of an act entitled ‘An Act to establish certain post-roads,’ approved July fourteenth, eighteen hundred and sixty-two. That said bridge, when completed in the manner specified in this resolution, shall be deemed and taken to be a legal structure, and shall be a post-road for the transmission of the mails of the United States; but Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.” After the passage of this resolution, the consolidated company began the erection of a drawbridge with a pivot draw, and expended a large amount of money in the undertaking, but before it was completed, Congress passed the act of March 3, 1871, c. 121, the fifth section of which (16 id. 572) is as follows: “ Sect. 5. That it shall be unlawful for the Newport and Cincinnati Bridge Company, or any other company or person, to proceed in the erection of the bridge now being constructed over the Ohio River, from the city of Cincinnati, Ohio, to the city of Newport, Kentucky, and the approaches thereto, unless the said bridge shall be so constructed that the channel span of four hundred feet, as now located, shall have under said span a clear headway at low 474 Bridge Co. v. United States. [Sup. Ct. water, of one hundred feet below any point of said channel span, and in such case no draw shall be required in said bridge; all the other spans of said bridge, which cover the Ohio River to low-water mark, shall - have a clear headway of not less than seventy feet above low-water mark; and the other spans of the said bridge, extending to each shore, may be made of less elevation than seventy feet above low-water mark, to accommodate a regular grade for the approaches to said bridge.* And when the foregoing requirements shall have been complied with by the said Newport and Cincinnati Bridge Company, the location of said bridge, its structures and approaches, shall thereupon be deemed to be legalized, and declared to be lawful structures, and shall be recognized and known as a post-route. The plans for changes in such bridge made necessary by this act shall be submitted by said company to the Secretary of Wai- for his approval. And in the event of the bridge company making the changes provided for in this act, it shall be lawful for the said company, after they shall have made the changes in said bridge, and the approaches thereto, as herein provided, to file their bill in equity, against the United States in the Circuit Court of the United States for the Southern District of Ohio, and full jurisdiction is hereby conferred upon said court to determine: First, whether the bridge, according to the plans on which it has progressed, at the passage of this act, has been constructed so as substantially to comply with the provisions of law relating thereto; and, second, the liability of the United States, if any there be, to the said company, by reason of the changes by this act required to be made, and if the said court shall determine that the United States is so liable, and that said bridge was so being built, then the said court shall further ascertain and determine the amount of the actual and necessary cost and expenditures reasonably required to be incurred in making the changes in the said bridge and its approaches, as hereby authorized or required, in excess of the cost of building said bridge and approaches according to the plan proposed before the changes required by this act to be made. And the said court is hereby further authorized and required to proceed therein to final decree, as in other cases in equity. And it shall be lawful for either party to the said suit to appeal from the final decree of the said Circuit Court to the Supreme Court of the United States, as in other cases, and the Supreme Court shall thereupon proceed to hear and determine the said case, and make a final decree therein; and thereupon, if such decree shall be in favor of said company, the Secretary of the Treasury of the United States shall, out of any Oct. 1881.] Bridge Co. v. United States. 475 moneys in the treasury not otherwise appropriated, pay to the said company such sum of money as shall by the said Supreme Court be so decreed to be paid to the said company: Provided, nevertheless, that no money shall be paid by the Secretary of the Treasury to the said company until the Supreme Court of the United States, upon appeal taken as aforesaid, shall render a final decree in the case in favor of said company.” • The company promptly yielded to these new requirements, and, having completed its bridge on the altered plan, brought in the court below this suit in equity against the United States to recover the increased cost. After hearing, the court dismissed the bill, and from that decree this appeal was taken. Mr. William M. Ramsey for the appellant. The Attorney - General and the Solicitor - General for the United States; Mr. Chief Justice Waite, after stating the case, delivered the opinion of the court. The first question which presents itself is, whether, on the face of the several acts of Congress, any liability rests on the United States to pay the bridge company the cost of the change that was directed in the plan of its bridge. It cannot be denied that but for the act of 1871 a bridge built according to the original plan would have been a lawful structure which the company could have maintained until Congress withdrew its assent, or required alterations to be made. * The paramount power of regulating bridges that affect the navigation of the navigable waters of the United States is in Congress. It comes from the power to regulate commerce with foreign nations and among the States. Willson v. Black Bird Creek Marsh Co., 2 Pet. 245 ; State of Pennsylvania v. Wheeling, ^c. Bridge Co., 18 How. 421; Gilman v. Philadelphia, 3 Wall. 713 ; The Clinton Bridge, 10 id. 454 ; Railroad Company v. Fuller, 17 id. 560; Pound v. Turek, 95 U. S. 459; Wisconsin v. Duluth, 96 id. 379. That the Ohio is one of the navigable rivers of the United States must be conceded. It forms a boundary of six States, and the commerce upon its waters is very large. No question can arise in this case upon what the States have done, for both Ohio and Kentucky required the company to 476 Bridge Co. v. United States. [Sup. Ct. comply with the regulations of Congress. Neither are we called on to determine what would have been the rights of the company if in the original license no power of future control by Congress had been reserved. The resolution on which the company relies contains this distinct provision: “ But Congress reserves the right to withdraw the assent hereby given in case the free navigation of said river shall at any time be substantially and materially obstructed by any bridge to be erected under the authority of this resolution, or to direct the necessary modifications and alterations of said bridge.” An examination of the legislation of Congress in reference to the bridging of streams shows this to have been at that time a new provision. It had appeared but once before, and then in the act of Feb. 19, 1869, c. 37 (15 Stat. 272), passed at the same session of Congress, authorizing a bridge across the Connecticut at Middletown. The first enactment by Congress on this general subject is found in sects. 6 and 7 of the act of Aug. 31, 1852, c. Ill, making appropriations for the Post-Office Department (10 Stat. 112), which declared the bridge across the Ohio at Wheeling then existing to be a lawful structure. This act simply gave the bridge company leave to maintain a bridge already built, and reserved no power of future control. Next followed, ten years after, the act of July 14, 1862, c. 167 (12 id. 569), which legalized a bridge then in the course of construction across the Ohio at Steubenville, and contained the general provisions as to bridging the Ohio above the mouth of the Big Sandy, referred to in the resolution of March 3, 1869. In this act, also, there was no reservation of power by Congress. The next was the act of Feb. 17, 1865, c. 38 (13 id. 431), by which the act of July 14, 1862, was amended so as to authorize the erection of a bridge across the Ohio at Louisville. In this, too, there was no reservation of power, but specific directions were given as to the height of the bridge, the number and location of draws, and the length of spans, and it was expressly provided that all should be so constructed as not to interrupt navigation. The same day another act was passed, c. 39 (id. 431). by which a bridge across the Ohio between Cincinnati and Covington, then being built in accordance with Oct. 1881.] Bridge Co. v. United States. 477 the laws of Ohio and Kentucky, was declared to be a lawful structure, and no power reserved. There was no further legislation of this character until the act of July 25, 1866, c. 246 (14 Stat. 244), which authorized eight bridges across the Mississippi at and above St. Louis, and one across the Missouri. This act provided that, “ in case of any litigation arising from any obstruction or alleged obstruction to the free navigation of said river, the cause may be tried before the District Court of the United States of any State in which any portion of said obstruction or bridge touches; ” and sect. 13 was as follows: “ That the right to alter or amend this act, so as to prevent or remove all material obstructions to the navigation of said river by the construction of bridges, is hereby expressly reserved.” The act of Feb. 27, 1867, c. 98 (14 id. 412), legalized the Clinton bridge across the Mississippi, and by the act of Feb. 21, 1868, c. 10 (15 id. 37), the act of July 25, 1866, was extended so as to include a bridge over the Mississippi at La Crosse. By the act of July 6, 1868, c. 134 (id. 82), a bridge across Black River in Ohio was authorized. Afterwards, by the act of July 20, 1868, c.*179 (id. 121), two other bridges were authorized across the Missouri. In all these acts the power of alteration and amendment was reserved in the exact language employed in the act of 1866. This brings the history of congressional legislation on the subject of bridging the public waters of the United States down to the session of Congress when the resolution in favor of the Newport and Cincinnati Bridge Company was passed, and when, as has already been seen, the peculiar form of reservation which appears in that resolution was for the first time introduced. Two licenses were granted at that session, — one by the act of Feb. 19, 1869, c. 37 (id. 272), to cross the Connecticut, and the other by the resolution now in question, and both contained this reservation. On the same day the resolution was adopted Congress passed the act of March 3, 1869, c. 139 (id. 336), to legalize the bridge across the East River, between New York and Brooklyn, in which “power at any time to alter, amend, or repeal” was in express terms and without any limitation reserved. From this it seems to us clear that the peculiar language of 478 Bridge Co. v. United States. [Sup. Ct. the reservation now in question was intended to have a special signification. It had been considered enough before to provide that, “ to prevent or remove all material obstructions to navigation,” the “ right to alter or amend,” expressed in the usual form, be reserved. But when power was given to build below the Big Sandy a bridge such as had before only been built above, it was deemed expedient, in the interest of commerce, to be more specific, and by reserving the power to withdraw the assent of Congress to what might prove to be an obstruction to navigation, to imply at least a reservation of power to make that unlawful which, while the assent continued, would be lawful. That this is what was intended by the language used may fairly be inferred from earlier legislation on the same general subject. Thus, as early as by the act of March 2,1805, c. 30 (2 Stat. 330), Congress, in authorizing the grant of leave to a bridge company to build a bridge across a mill-pond and marsh in the navy-yard at Brooklyn, N. Y., provided, “that if at any future time it shall appear to the President of the United States that the property of the United States is injured by such bridge, he*may revoke the permission granted by him for erecting the same.” Afterwards, by the act of March 3,1855, c. 198 (10 id. 675, 680), the Secretary of the Navy was authorized to permit another bridge company to connect its bridge with the navy-yard at Kittery, Me., and to have a right of way through the yard to the bridge, but it was provided that the bridge and the right of way might be discontinued at any time by the Secretary. It surely could not be claimed that if, under the power reserved in these cases, the President had revoked the permission given in respect to the bridge at the Brooklyn yard, or the Secretary had discontinued that at Kittery, the United States would be either legally or morally bound to make good the loss sustained by the companies, or either of them, on that account. And the reason is, that the language in which the power reserved was expressed clearly implied that all the risks of revocation and discontinuance were to be assumed by those to whom the grants thus limited were made. So here, in assenting to an untried experiment, and one which might prove to be materially detrimental to the navigation of an important stream, Congress thought proper to reserve the right to Oct. 1881.] Bridge Co. v. United States. 479 withdraw its assent, — revoke its permission, — if what might possibly happen should, in fact, come as the consequence of the new authority which was granted. To “ withdraw assent ” is the same as to “ revoke permission,” and what would be implied from one form of expression will be, under like circumstances, from the other. It is true, in the case of the navy-yards, Congress had absolute jurisdiction, and the States were excluded altogether. But the power of Congress in respect to legislation for the preservation of inter-state commerce is just as free from State interference as any other subject within the sphere of its legislative authority. The action of Congress is supreme, and overrides all that the States may do. When, therefore, Congress in a proper way declares a bridge across a navigable river of the United States to be an unlawful structure, no legislation of a State can make it lawful. Those who act on State authority alone necessarily assume all the risks of legitimate congressional interference. Jn the present case, both the Ohio and Kentucky divisional companies were, by express provisions in their respective charters, subjected to this paramount controlling power. The consolidated company was, therefore, prohibited from obstructing navigation more than the laws of the United States authorized, and was required to build its bridge in accordance with the provisions of the act of 1862, or any other law that Congress might thereafter pass on the subject. Hence the resolution of 1869 became, by the operation of both congressional and State enactments, the law on which the rights of the company depend. It was the paramount license for the erection and maintenance of the bridge; and the company, by accepting its provisions, became subject to all the limitations and reservations of power which Congress saw fit to impose. From this we conclude that the withdrawal by Congress of its assent to the maintenance of the bridge, when properly made, is, for all the purposes of this case, equivalq^t to a positive enactment that from the time of such withdrawal the further maintenance of the bridge shall be unlawful, notwithstanding the legislation of the several States upon the subject. If modifications are directed, assent is, in legal effect, withdrawn, unless the required changes are made. It is contended, however, that under the terms of the reser 480 Bridge Co. v. United States. [Sup. Ct vation the assent oi Congress could not be withdrawn until it had been in some way judicially ascertained that the bridge, as authorized, either did in fact, or would if built, substantially and materially obstruct free navigation. Such, we think, is not the fair meaning of the language employed. In State of Pennsylvanian. The Wheeling,