UNITED STATES REPORTS VOLUME 108 CASES ADJUDGED IN THE SUPREME COURT AT OCTOBER TERM, 1882 AND RULES ANNOUNCED AT OCTOBER TERM, 1883 J. C. BANCROFT DAVIS REPORTER NEW YORK AND ALBANY BANKS & BROTHERS, LAW PUBLISHERS 1884 Entered according to Act of Congress, in the year 1884, by BANKS & BROTHERS, In the Office of the Librarian of Congress, at Washington. Press of J. J. Little & Co., New York. JUSTICES OB' THE SUPREME COURT DURING THE TIME OF THESE REPORTS. MORRISON R. WAITE, Chief-Justice. SAMUEL F. MILLER, Associate Justice. STEPHEN J. FIELD, Associate Justice. JOSEPH P. BRADLEY, Associate Justice. JOHN M. HARLAN, Associate Justice. WILLIAM B. WOODS, Associate Justice. STANLEY MATTHEWS, Associate Justice. HORACE GRAY, Associate Justice. SAMUEL BLATCHFORD, Associate Justice. attorney-general. Benjamin Harris Brewster. SOLICITOR-GENERA L. Samuel Field Phillips. clerk. James H. McKenney. marshal. John G. Nicolay. The allotment of the Chief-Justice and Associate Justices to Circuits continues as announced in 107 U. S. MEMORANDUM. SUPREME COURT OF THE UNITED STATES. October Term, 1883. Ordered by the court that the following letter, order and oath of office be entered upon the minutes of the court. LETTER. Washington, D. C., 8th October, 1883. Sir : I have the honor to tender my resignation of the office of Reporter of the Decisions of the Court, to take effect on the publication of Volume 107 V. S. I am, sir, Very respectfully, Your obedient servant, The Honorable, W. T. Ottq. The Chief Justice. ORDER. Mr. William T. Otto having resigned the office of Reporter of the Decisions of this Court, Mr. J. C. Bancroft Davis is appointed in his place. Mr. Davis is charged with the duty of reporting the decisions of the present term from the beginning, and those of the last term not included in the volumes already published by Mr. Otto. OATH. I, J. C. Bancroft Davis, do solemnly swear that I will faithfully and impartially discharge and perform all the duties of the office of Reporter of the Supreme Court of the United States according to the best of my abilities and understanding, and that I will support the Constitution of the United States. So help me God. „ , , J. C. Bancroft Davis. Subscribed and sworn to in open court, this fifth day of November, a. d. 1883. James H. McKenney, Cleric of the Supreme Court of the United States. vi MEMORANDUM. The Reporter, with the consent of the Court, induced the publishers to try the experiment of issuing the reported cases in serial numbers. For obvious reasons the series began with cases adjudged at the current term, none of which had been reported. Thus the unreported cases of the last term were left to be printed by themselves in this volume ; and it happened that in carrying it through the press simultaneously with Vol. 109, the latter and a portion of Vol. 110 appeared before it. Arguments of counsel are reported more fully than the Reporter can hope to do hereafter. The cases are arranged in the order in which the judgments were announced. The same arrangement will be observed in future volumes unless circumstances prevent. In order that this volume may be properly cited, it is numbered only as a volume in the series of the United States Reports. It is the custom of the Court to cite decisions reported since Wallace only by the number in the official series, as “ 91 U. S.,” “ 92 U. S.,” &c. If counsel will do the same thing, it will aid in securing accuracy in reporting arguments. The proper citation for the cases reported in this volume is “ 108 U. S.,” with the page added. Washington, 20th March, 1884. L CASES ADJUDGED AT OCTOBER TERM, 1882. TABLE OF CASES. Page Adriatic Fire Insurance Company v. Treadwell . . 361 Ambrose, United States u . . . . . . 336 Amendments to Rules..............................1 Armes, Bigelow v. ...... 10 Arthur v. Fox......................... . 125 Atlantic Mutual Insurance Company, Ellis v. . . 342 Baltimore & Ohio Railroad Company, Ex parte . . 566 Baltimore & Potomac Railroad Company v. Fifth Baptist Church.................................317 Barnard, Clark v............................. 436 Barton v. Geiler...............................161 Basket v. Hassell..............................267 Belgenland (The)...............................153 Bigelow v. Armes................................10 Blake, Hawkins v...............................422 Boese v. King .................................379 Bonebrake, Medsker & Wife v...............• . 66 Booneville Central National Bank, Howard County v. 314 Britton, United States v. ...... 192 Britton, United States v.......................193 Britton, United States v..................... 199 Britton & Another, United States v.............207 Bruce, Gibson v.............................. 531 Cape Ann Isinglass & Glue Company, Manning v. . . 462 Carey, Ottawa v................................110 Chicago & Alton Railroad Company v. Wiggins Ferry Company.........................................18 Clark v. Barnard ........ 436 X TABLE OF CASES. Page Connecticut Mutual Life Insurance Company v. Cushman & Another . ..........................51 Connecticut Mutual Life Insurance Company v. Luchs. 498 Connemara (The) . . . . . . . . 352 Cooper, Sinclair v..................................352 Crane Iron Company v. Hoagland........................5 Crossley & Another v. New Orleans (City of) . . 105 Cushman & Another, Connecticut Mutual Life Insurance Company v............................................51 Daggs, Ewell v......................................143 Devoe Manufacturing Company, Ex parte . . . 401 Dickinson, Hilton v.................................165 Dinsmore, Missouri, Kansas & Texas Railway Company v...........................................30 District of Columbia, Washington & Georgetown Railroad Company v................................... . 522 District of Columbia v. Washington Market Company. 243 Downton v. Yeager Milling Company .... 466 Duncan & Others, Stebbins v..........................32 Ellett, Wilkins v.........................•. . 256 Elliott v. Sackett & Another . . . . . 132 Ellis v. Atlantic Mutual Insurance Company . . . 342 Ensminger v. Powers & Wife..........................292 Ewell v. Daggs............................. . 143 Fairbanks, Hawley v.................................543 Farlow v. Kelley....................................288 Feibelman v. Packard.................................14 Fifth Baptist Church, Baltimore & Potomac Railroad Company v...........................................317 Forty-Three Gallons of Whiskey, United States w. . ‘491 Fox, Arthur v. . .....................125 Gage v. Pumpelly . . . . . . . 164 Geiler, Barton v....................................161 Gibson v. Bruce.....................................561 Goldenberg & Another v. Murphy......................162 TABLE OF CASES. xi Page Gray v. Howe & Another ...............................12 Gross v. United States Mortgage Company . . . 477 Hamilton, Woolf v......................................15 Hampton & Others v. Phipps . ... . . 260 Hassell, Basket v.....................................267 Hays, Waples v. ....................................... 6 Hawley v. Fairbanks . . . . . . . 543 Hawkins v. Blake......................................422 Hilton v. Dickinson...................................165 Hoagland, Crane Iron Company v......................... 5 Hoagland, Wurts & Others v. ..... 5 Howard County v. Booneville Central National Bank. 314 Howe & Another, Gray v.................................12 Hung Hang, Ex parte . 552 Illinois, Illinois Central Bailroad Company v. . . 541 Illinois, Buggies v. .................................526 Illinois Central Bailroad Company v. Illinois . . . 541 Jessie Williamson, Jr. (The)..........................305 Jessie Williamson, Jr. (The), Starin v. . . . 305 Johnson & Another v. Waters............................ 4 Kelley, Farlow v......................................288 Kelley, Savannah (City of) v..........................184 King, Boese v. . . .........................379 King, Warren v........................................389 Kirkbride v. Lafayette County ..... 208 Lafayette County, Kirkbride *y. . . . . 208 Lewis, Shainwald & Others y......................... 158 Lewis v. Shreveport (City of) ........................282 Little Miami & Columbus & Xenia Bailroad Company v. United States.........................................277 Loud, Winchester v. 130 Louisiana & Others, New Hampshire -y. 76 Louisiana v. New Orleans Gas Light Company . . 568 Louisiana & Others, New York v........................76 Luchs, Connecticut Mutual Life Insurance Company y. . 498 xii TABLE OF CASES. Page Ludloff & Others v. United States . . . . 176 Manhattan Medicine Company v. Wood & Another . 218 Manning v. Cape Ann Isinglass & Glue Company . 462 Martin, Savannah (City of) v. . . . . 191 Masonic Savings Bank & Another, Stucky v. . . 74 Mayer & Another v. Walsh ... . . .17 McLean, St. Paul & Chicago Railway Company v. . 212 Meath v. Phillips County.............................553 Medsker & Wife v. Bonebrake . . . . . 66 Memphis & Charleston Railroad Company, Scruggs v. . 368 Memphis & Charleston Railroad Company v. United States...............................................228 Merritt v. Park & Another............................109 Merritt v. Stephani & Another ..... 106 Missouri, Kansas & Texas Railway Company v. Dinsmore 30 Murphy, Goldenberg & Another u . . 162 New Hampshire v. Louisiana & Others . . . .76 New Jersey Zinc Company v. Trotter . . . 564 New Orleans (City of) Crossley & Another v. . . 105 New Orleans (City of) v. New Orleans, Mobile & Texas Railroad Company......................................15 New Orleans Gas Light Company, Louisiana v. . . 568 New Orleans, Mobile & Texas Railroad Company, New Orleans (City of) v............................ . 15 New York v. Louisiana & Others........................76 Norton, Ex parte.....................................237 Nuestra Señora de Regla (The).........................92 Ottawa v. Carey .....................................110 Packard, Feibelman v. . . . . . .14 Pargoud, Scarborough v...............................567 Park & Another, Merritt v. ..........................109 Pearson, Post v...................... . . . 418 Phillips County, Meath v.............................553 Phipps, Hampton & Others 0. . . . 260 Post v. Pearson......................................418 TABLE OF CASES. xiii Page Powers & Wife, Ensminger v.......................292 Pumpelly, Gage v.................................164 Roundtree v. Smith & Another .... 269 Ruggles v. Illinois .............................526 Rules, Amendments to ............................573 Sackett & Another, Elliott v............. . . 132 St. Paul & Chicago Railway Company v. McLean . .212 St. Louis, Iron Mountain & Southern Railroad Company v. Southern Express Company .... 24 Savannah (City of) v. Kelley ....................184 Savannah (City of) v. Martin . . . . * . 191 Scarborough v. Pargoud ....... 567 Scruggs v. Memphis & Charleston Railroad Company 368 Shainwald & Others v. Lewis......................158 Shreveport (City of), Lewis v. . . . . 282 Sinclair v. Cooper....................... . . 352 Smith & Another, Roundtree v.....................269 Southern Express Company, St. Louis, Iron Mountain & Southern Railroad Company v....................24 Starin v. The Jessie Williamson. Jr. . . .. . 305 Stebbins v. Duncan & Others . . . . 32 Stephani & Another, Merritt v. ...... 106 Stucky v. Masonic Savings Bank & Another . . 74 Tom Tong, Ex parte ....... 556 Tornado (The)....................................342 Treadwell, Adriatic Fire Insurance Company v. . . 361 Trotter, New Jersey Zinc Company v. ... 564 Tutton v. Viti................................ .312 United States v. Ambrose ...... 336 United States v. Britton . . . • . . , 192 United States v. Britton . . . . . . . 193 United States v. Britton ...... 199 United States v. Britton & Another . . . .207 United States v. Forty-three Gallons of Whiskey . 491 United States, Little Miami & Columbus & Xenia Railroad Company v................................e 277 TABLE OF CASES. Page -United States, Ludloff & Others v. . . . . . 176 United States, Memphis & Charleston Railroad Company'??. 228 United States, Western Pacific Railroad Company v. . 510 United States, Wright & Others v. . . . . 281 United States Mortgage Company, Gross u . .477 Vance v. Vance............................. . . 514 Viti, Tutton v. . . . .• . . . 312 Walsh, Mayer & Another v. . . . . . .17 Waples v. Hays..................................... 6. Warden & Others, Ex parte . . . . . .153 Warden & Others, Petitioners . . . . 153 Warren v. King............................. . . 389 Washington & Georgetown Railroad Company v. District of Columbia ....................................522 Washington Market Company, District of Columbia v. 243 Waters, Johnson & Another u . . . . . 4 Western Pacific Railroad Company v. United States . 510 Wiggins Ferry Company, Chicago & Alton Railroad Company v......................................... 18 Wilkins v. Ellett.......................... . .256 Winchester v. Loud.................................130 Wood & Another, Manhattan Medicine Company v. .218 Woolf v. Hamilton . . . .' . . . 15 Wright & Others v. United States . . . . . 281 Wurts & Others v. Hoagland.......................... 5 Yeager Milling Company, Downton v..................466 xiv TABLE OF CASES CITED IN OPINIONS. Page Abbottsford (The), 98 U. S. 440 359 Adams v. Crittenden, 106 U. 8. 576 548 Adams v. Kerr, 1 B. & P. 360 45 Adventure (The), 8 Cranch, 221 359 .¡Etna Life Insurance Company v. France, 94 U. S. 562 504 Aldrich v. Cooper, 8 Ves. 382 378 Allen v. Louisiana, 103 U. S. 80 123 Allis v. Insurance Company, 97 U. S. 144 63 Almonester v. Kenton, 9 How. 1 105 Alphonso (The), 1 Curtis, 376 357 Andrews v. Russell, 7 Blackf. 474 150 Annapolis (The), Lush. 355 358 Anthony v. Rogers, 20 Missouri 281 375 Apollon (The), 9 Wheat. 362 103 Appleby v. Myers, L. R., 2 C. P. 651 351 Armstrong v. Treasurer of Athens County, 16 Pet. 281 105 Arthur v. Herman, 96 U. S. 141 129 Arthur v. Lahey, 96 U. S.112 163 Atlantic Bank v. Tavener, 130 Mass. 407 73 Aulger «. Smith, 34 Ill. 534 46 Babcock ®. Eckler, 24 N. Y. 623 73 Bailey ®. Damon, 3 Gray 94 350 Balber ®. Donaldson, 2 Grant (Penn.) 459 47 Baltimore & Ohio Railroad Co. Ex parte, 106 U. S. 5 548 Bank of United States ®. Owens, 2 Pet. 527 149 Banking Association v. Insurance Association, 102 U. S. 121 174 Barrett ®. Barrett, 8 Greenl. 353 259 Belmont ®. Coman, 22 N. Y. 438 140 Benham ®. Rowe, 2 Cal. 387 375 Benson v. Gibson, 3 Atk. 395 457 Page Berdan v. Sedgwick, 44 N. Y. 626 153 Bevin ®: Connecticut Mutual Life In. Co., 23 Conn. 244 507, 509 Biddle ®. Wilkins, 1 Pet. 686 259 Bigelow ®. Forest, 9 Wall. 339 8 Bishop ®. Cone, 3 N. H. 513 50 Blackwell (The), 10 Wall. 1 357 Blaireau (The), 2 Cranch, 240 359 Blake ®. Hawkins, 98 U. S. 315 423, 425, 428 Bogue ®. Bigelow, 29 Vt. 179 47 Bollman & Swartwout, Ex parte, 4 Cranch, 75 553, 560 Bostwick ®. Brinkerhoff, 106 U. S. 3 28,242 Branston (The), 2 Hagg. Adm. 3n 358 Breckenridge ®. Brooks, 2 A. K. Marsh. 335 375 Brine ®. Insurance Company, 96 U. S. 127 60, 63 Brown v. Metz, 33 Ill. 339 47 Brolasky ®. Miller, 1 Stockt., N. J. 807 53 Brooks ®. Norris, 11 How. 207 568 Brown v. Cayuga, &c., Railroad Company, 12 N. Y. 486 333 Brown ®. Metz, 33 Ill. 339 47 Buchanan v. Smith, 16 Wall. 277 386 Bullard ®. Briggs, 7 Pick. 533 73 Burgess ®. Gun, 8 Harr. & Johns. 225 350-1 Burr v. City of Carbondale, 76 HL 455 122 Burt (In re\ 1 Dillon 439 385 Burton v. Driggs, 20 Wall. 125 46 Cabeen ®. Breckenridge, 48 Ill. 91 49 Calder ®. Haynes, 7 Allen. 387 422 Cannon®. Pratt, 99 U. S. 619 13 Carrier Dove (The), 2 Moore, P. C. (N. S.), 243; S. C. Brown & Lush 113 359 xvi TABLE OF CASES CITED. Page Cass County v. Johnston, 95 U. S. 360 555 Cates v. Loftus, 3 A. K. Marsh, 202 47 Chamblee v. Tarbox, 27 Texas, 139 47 Charles River Bridge ®. Warren Bridge, 11 Pet. 420 531 Cherokee Tobacco Tax, 11 Wall. 616 497 Chicago, Burlington & Quincy Railroad v. Iowa, 94 U. S. 155 531 Chicago, Danville & Vincennes Railroad Co. v. Smith, 62 Ill. 268 122, 124 Chisholm v. Georgia, 2 Dall. 419 86, 87 Choteau ®. Jones, 11 Ill. 300 49 Clark ®. Keith, 106 U. S. 464 101 Clark v. Killian, 103 U. S. 766 302 Clarke v. Courtney, 5 Pet. 319 44 Clemson v, Davidson, 5 Binn. 392 351 Colin ®. U. S. Corset Company, 93 U. S. 366 471 Comanche (The), 8 Wall. 448 359 Commercial Union Assurance Co. v. Scammon, 102 Ill. 46 487 Commonwealth v. Kidder, 107 Mass. 188 333 Commonwealth ®. Shedd, 7 Cush. 514 205 Comstock ®; Hitt, 37 Ill. 542 140 Connemara (The), 103 U. S. 754 356 Connell v. Reed, 128 Mass. 477 227 Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92 466 Cook v. Stout, 47 Ill. 530 46 Cooke v. Woodrow, 5 Cranch, 13 , 44, 169, 174 Cora (The), 2 Pet. Adm. 361 : S. C. 2 Wash. C. C. 80 358, 359 Corier Maritimo (The), 1 Rob. 287 103 Cousin ®. Blanc’s Executor, 19 How. 202 485 Cousin v. Labatut, 19 How. 202 105 Crittenden ®. Wilson, 5 Cow. 165 333 Crump v. Lambert, L. R. 3 Eq. 409 329 Cummings ®. Jones, 104 U. S. 419 568 Curling ®. Long, 1 Bos. & Pul. 634 350 Curtis v. Leavitt, 15 N. Y. 9 150 Curtis v. Tyler, 9 Paige 432 265 Curtis v. Whitney, 13 Wall. 68 518, 520 Danville v. Pace, 25 Grat. 1 150 Davenport «. Dodge County, 105 U. S. 237 555 Dean v. Pearson, 102 Mass.. 101 73 Dennistoun v. Stewart, 18 How. 565 341 Dudley ®. Grayson, 6 Monroe, 259 50 Page Dugger ®. Bocock, 94 U. S. 603 484 Dunning ®. Roome, 6 Wend. 651 50 Durley ®. Davis, 69 Ill. 133 61 Duty v. Graham, 12 Texas, 427 147 Eaton (The L. W.), 9 Benedict, 289 417 Ebom ®. Cannon’s Adminis- trators, 32 Texas, 231 147 Edie ®. Shreveport, 26 La. Ann. 636 287 Edwards v. Kearzey, 96 U. S. 595 65 Egbert v. Lippman, 104 U. S. 333 465, 466 Elgin ®. Marshall, 106 U. S. 578 310, 565 Elliott v. Jumel, 107 U. S. 711 78 Elliott ®. Wiltz, 107 U. S. 711 78 Emulous (The), 1 Sumner, 207 359 Enterprise (The), 2 Curtis, 317 310 Erie Railway Company v. United States, 106 U. S. 327 234 Ernst ®. Bartie, 1 Johns. Cas. 319 367 Ewell v. Daggs, 108 U. S. 143 489 Farmers’ Loan & Trust Company v. Waterman, 106 U. S. 265 548, 549 Fell v. Goslin, 21 Law J. Rep. N. S. Exch. 14 367 Fetridge v. Wells, 4 Abbott, N.Y. 144 226 Fish ®. Dodge, 4 Denio, 311 334 Fisk v. Arthur, 103 U. S. 431 129 Fiske v. Tolman, 124 Mass. 254 140 Flanagan v. Cushman, 48 Texas, 241 147 Fletcher ®. Stone, 3 Pick. 250 150 Flight v. Reed, 1 H. & C. 703, 32 Law Jour. Rep. N. S. Ex. 205 , 150 Forbush v. Willard, 16 Pick. 42 73 Fowler v. Fay, 62 Ill. 375 140 Francis Wright (The), 105 U. S. 381 359 French v. Motley, 63 Maine, 326 73 Fusilier (The), 3 Moore, P. C. (N. S .) 51; 8. C. Brown & Lush, 341 358 General Palmer (The), 5 Notes of Cases, 159n 357 Georgia v. Jessup, 106 U. S. 458 448 Gibson ®. Chouteau, 8 Wall. 314 484 Gibson v. Lupton, 9 Bing. 297 367 Gitt ®. Watson, 18 Missouri, 274 47 Goldschmidt, In re, 3 Bank. Reg. 164 385 Goodenough v. Thayer, 132 Mass. 152 . 422 Gordon v. Ogden, 3 Pet. -33 171, 174,175 Gray ®. Blanchard, 97 U. S. 564 174 Grabill ®. Moyer, 45 Penn. St. 530 73 TABLE OF CASES CITED. xvii Page Grand Gulf Railroad & Banking Company v. Marshall, 12 How. 165 ’ 105, 485 Grant ®. National Bank, 97 U.S. 80 75 Grant v. Phoenix Insurance Com- pany. 106 U. S. 429 28, 242 Great Eastern (The), 2 Marit. Law Cas. 148 Ä C. 11 Law Times (N. S.), 516 358 Green ®. Biddle, 8 Wheat. 1 65 Green v. Kemp, 13 Mass. 515 150 Green v. Tyler, 39 Penn. St. 361 153 Grigsby v. Purcell, 99 U. S. 505 168 Hackett v. Ottawa, 99 U. S. 86 115, 118, 121 Hall v. Devoe Manufacturing Company, 14 Fed. Rep. 183 ' 405 Harper v. Butler, 2 Pet. 239 259 Harrison v. Wyse, 24 Conn. 1 375 Hawkins ®. Barry’s Lessee, 5 Pet. 457 521 Hecht ®. Boughton, 105 U. S. 235 15 Hensley v. The People, 84 Ill. 544 122 Hickling v. Wilson, 104 Ill. 54 124 Hilton v. Dickinson, 108 U. S. 165 309, 311, 565 Hitchcock ®. Buchanan, 105 U. S. 416 422 Hoard, Ex parte, 105 U. S. 580 567 Hobart «. Drogan, 10 Pet. 108 359 Hobbs ®. Francais, 19 How. (N. Y.) 567 227 Hodges ®. King, 7 Met. 583 454 Holman «. Johnson, Cowp. 341 147 Hope (The), 3 Hagg. Adm. 423 358 Hopewell ®. Cumberland Bank, 10 Leigh, 206 265 Howe ®. Handley, 25 Maine, 116 367 Hunter ®. Prinsep, 10 East. 378 347 Hyde ®. Ruble, 104 U. S. 407 132 Insurance Company ®. Pechner, 95 U. S. 183 - 562 Jackson®. Lamphire, 3 Pet. 280 520 James®. Milwaukee, 16 Wall. 159 191 Johnson ®. Bentley, 16 Ohio, 97 151 Jones ®. Holm, L. R. 2 Exch. 335 350 Jones ®. United States, 96 U. S. 24 352 Keating ®. Sparrow, 1 Ball & Beatty, 367 458 Kellogg®. Rockwell, 19 Conn. 446 375 Kennedy v. Georgia State Bank, 8 How. 586 302 King ®. Ohio & Mississippi Rail-road Co. 2 Fed. Rep. 36 390 Knapp ®. Banks, 2 How. 73 172 Knox County Commissioners ®. Aspinwall, 21 How. 539 123 Koshkoning v. Burton, 104 U. S. 668 , 521 Lamar ®. Micou, 104 U. S. 465 173 Lange, Ex parte, 18 Wall. 165 553 VOL. CV1II—B Page Lawler ®. Walker, 14 How. 149 485 Leather Clbth Co. ®. American Leather Cloth Co., 4 De G. J. & S. 137; 11 H. L. Cas. 523 223 Lee.®. Watson, 1 Wall. 337 174, 175 Lewis «. McElvain, 16 Ohio, 347 151 License Tax Cases, 5 Wall. 462 497 Littler ®. The People, 43 Ill. 188 61 Lively (The), 1 Gall. 314 103 Lloyd ®. Scott, 4 Pet. 205 153 Loring, Ex parte, 94 U. S. 419 567 Louisiana ®. New Orleans, 102 U. S. 203 519 Ludlow ®. McCrea, 1 Wend.228 367 McClure v. Oxford Township, 94 U. S. 429 123 McClurg ®. Kingsland, 1 How. 202 466 McConnell ®. Reed, 2 Scamm. 371 44 McCrachen v. Hayward, 2 How. 608 65 McVeigh ®. United States, 11 Wall. 259 301 Maillon ®. Boyce, 14 La. Ann. 621 9 Manufacturing Company v. Train- er, 101 U. S. 51 223 Marsh v. Fulton County, 10 Wall. 676 123 Martin v. Dryden, 1 Gilman, 213 49 Masterton ®. Herndon, 10 Wall. 416 15 Maure ®. Harrison, 1 Eq. Ca. Abr. 93 263 Mayer v. Hellman, 91 U. S. 496 386 Memphis & Charleston Railroad Co. ®. Alabama, 107 U. S. 581 452 Mercer County ®. Hacket, 1 Wall. 83 191 Merrill ®. Petty, 16 Wall. 338 173 Meyer ®.City of Muscatine, 1 Wall. 384 191, 212 Milliken ®. Martin, 66 Ill. 13 39 Minnehaha (The), 15 Moore P. C. 133; S. C. Lush. 335 358 Moore ®. Degraw, 1 Halst, ch. 346 375 Morrell ®. Trenton Mutual Life & Fire Ins. Co., 10 Cush. 282 506 Munn ®. Illinois, 94 U. S. 113 531, 535, 536, 541 Murdock ®. Memphis, 20 Wall. 590 105, 484, 485 Murphy ®. Arnson, 96 U. S. 181 129 Mussina ®. Cavazos, 6 Wall. 360 568 National Steamship Co. v. Tug- man, 106 U. S. 118 216 Naylor ®. South Devon Railway Company, 1 DeG. & Sm. 32 456 Nelson v. Whittail, 1 B. & A. 19 47 Neptune (The), 12 Moore P. C. 346 359 Newman ®. Walters, 3 B. & P. 612 358 New Orleans (The), 17 Blatch. 216 156 Ohio & Mississippi Railroad Company ®. Wheeler, 1 Black. 297 452 xviii TABLE OF CASES CITED. Page Ottawa V. Carey, 108 U. S. 110 2«6, 287 Ottawa V. First National Bank, 105 U. S. 342 115, 119, 121 Palmer ®. Harris, 60 Penn. St.. 156 227 Parkersburg ®. Brown, 106 U. S. 487 287 Parks ®. Ross, 11 How. 362 360 Parks Ex parte, 93 U. S. 22 553 Parmelee v. Laurence, 48 Ill. 331 150 Parmelee ®. Lawrence, 1 Wall. 38 485 Peabody ®. Stark, 16 Wall. 240 282 Peachy ®. Somerset, 1 Strange, 447; S. C. Prec. Ch. 568, 2 Eq. Cas. Abr. 227 456, 457 Peckham ®. North Parish in Ha- verhill, 10 Pick. 274 367 Peik v. Chicago & N. W. Railway Co. 94 U. S. 164 531 People ®. Central Railroad Cb. of New Jersey, 42 N. Y. 283 405 People ®. Dupuy, 71 Ill. 651 122 People ®. Trustees of Schools, 78 Ill. 136 122 Perkins v. Sterne, 23 Texas, 561 147 Perry ®. Truefitt, 6 Beav. 66 226 Petersen ®. Chemical Bank, 32 N. Y. 21 259 Peyton ®. Robertson, 9 Wheat. 527 171 Pidding ®. Howe, 8 Sim. 477 225 226 Pierce ®. Wade, 100 IT. S. 444 173 Planters’ Bank ®. Sharp, 6 Wheat. 301 65 Pontiac (The), 5 McLean, 359 358 Porter ®. United States, 106 U. S. 607 101 Post ®. Dart, 8 Paige, 639 153 Post ®. Jones, 19 How. 150 359, 360 Powell ®. Redfield, 4 Blatchford, 45 457 Prendergast v. Turton, 1 You. & Col. Ch. 98 456 Quincy, Missouri & Pacific Railroad Co. ®. Morris, 84 Ill. 410 122 Railroad Company ®. Harris, 12 Wall. 65 452 Railroad ®. Rock, 4 Wall. 177 485 Railroad Company ®. Koontz, 104 U. S. 5 216 Railway Company, Ex parte, 103 U. S. 796 567 Railway Company ®. Collector, 100 U. S. 595 234, 236, 279 Railway Company ®. Whitton, 13 Wall. 270 4521 Page Ralls County Court ®. United States, 105 U. S. 733 122 Rand v. Hubbard, 4 Met. 252 259 Read v. Plattsmouth, 107 U. S. 568 151 Rector v. Ashley, 6 Wall. 142 484 Reed v. Kemp, 16 Ill. 445 49 Reed v. McIntyre, 98 U. S. 507 386, 387 Regina ®. King, 7 Q. B. 782 205 Reitenbaugh ®. Ludwick, 31 Penn. St. 131 375 Removal Cases, 100 U. S. 457 215 Rhode Island v. Massachusetts, 12 Pet. 657 416 Riggs v. Taylor, 4 Wheat. 486 43 Robinson ®. Crandall, 9 Wend. 425 259 Roden v. Ryde, 4 Adol. & E. 629 47 Rogers ®. Burlington, 3 Wall. 654 190 Ryan ®. Bindley, 1 Wall. 66 173 Sabin v. Waterson, 17 Wall. 596 521 Salacia (The), 2 Hagg. Adm. 262 358 Sampson v. Smith, 8 Sim. 271 335 Saratoga (The), Lush. 818 358 Satterlee v. Matthewson, 16 S. & R. 169 ; S. G. (Error), 2 Pet. 380 150, 488 Savings Bank v. Allen, 28 Conn. 97 150 Saxton ®. Nimms, 14 Mass. 320 50 Schacker v. Hartford Fire Ins. 1,472. Indictment. Thomas Ambrose. ) “This cause coming on to be heard before the Honorable Noah H. Swayne and Honorable John Baxter, judges of said court, sitting therein, upon the demurrer of defendant to the indictment, certain questions thereupon occurred on said hearing to be decided by the court, to wit: “ First. Whether the instrument set forth in the first count of indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within the meaning of section 5392 of the Revised Statutes of the United States. “Second. Whether the instrument set forth in the second count of the indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within 340 OCTOBER TERM, 1882. Opinion of the Court. the meaning of section 5392 of the Revised Statutes of the United States. “Third. Whether the instrument set forth in the third count of indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written declaration within the meaning of section 5392 of the Revised Statutes of the United States. “ Fourth. Whether the instrument set forth in the fourth count of the indictment, and alleged therein to have been subscribed and sworn to by the defendant, was a written certificate within the meaning of section 5392 of the Revised Statutes of the United States. “ Upon which said questions the judges aforesaid were divided in opinion. “ It is thereupon ordered that the said points of disagreement, stated as above, under the direction of said judges, be certified under the seal of the court to the Supreme Court of the United States at their next session.” We do not think the words declaration and certificate, as. used in the section of the Revised Statutes on which this indictment is founded, are used as terms of art, or in any technical sense, but are used in the ordinary and popular sense to signify any statement of material matters of fact sworn to and subscribed by the party charged. Indeed, the word declaration, as a word of art in the law, is generally used to signify the plea by which a plaintiff in a suit at law sets out his cause of action, as the word complaint is in the same sense the technical name of a bill in chancery. The fact that in many acts of Congress cited by counsel that body has used the word to signify a statement in writing, whether sworn to or not, as the foundation in many cases of official action, or as preliminary to the assertion of rights by the party who makes the declaration, is far from proving that the use of the word in the act concerning perjury is limited to these cases. The inference is strong the other way, for the word is used in the cases cited in regard to so many and such diverse transactions, that it can, in view of them all, have no other meaning than what is attached to it in ordinary use. UNITED STATES v. AMBROSE. 341 Opinion of the Court. And in all these instances it is equivalent to a statement of facts material to the matter in hand. The paper or statement of the emolument account, the falsity of which is the foundation of the charge, is set out, and if in the charging clause of the indictment it is described by a word equally applicable to other instruments, no harm can come to defendant, since he is precisely informed as to the identical writing which is alleged to be false, and which he swore to be true. Nor can he be misled in any way, because what he says in that writing is, in the correct use of language, his sworn declaration on that subject. But the perjury in all such cases consists in the oath by which the party indicted swears to the truth of some matter, and this oath may be said to be the false statement of the statute. Or, in apother sense, it may be said that the written statement and the oath of the party that it is true, all constitute the declaration or certificate of the statute, for the falsity of which he is chargeable with perjury and liable to punishment. The previously prepared writing, his oath to its truth, or the whole taken together, is, in our opinion, a declaration of the party within the meaning of the statute, and may be so well described in the indictment. We are quite satisfied that, as set forth in this indictment, these are material matters under the statute, and if defendant did not believe them to be true when he swore to and subscribed the statement that they were true, that he is guilty of perjury, as declared in section 5392, and we think the word declaration correctly defines such statement. The same rule of construction is applicable to the word certificate used in the statute^ It is attempted in argument to raise the question whether the judge of the district court had authority to administer the oath in which the perjury was committed. But it is clear that no such question is certified to us by the judges of the circuit court, and we cannot consider it. United States v. Briggs, 5 How. 208 ; Dennistoun v. Stewart. 18 How. 565. We answer all the questions submitted to us in the affirmative, and it will be so certified to the circuit court. 342 OCTOBER TERM, 1882. Argument for Appellants. THE TORNADO. ELLIS & Others v. ATLANTIC MUTUAL INSURANCE COMPANY. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. Decided April 30th, 1883. Affreightment—Contract—Freight— Total Loss. Where a vessel, before she breaks ground for a voyage, is so injured by fire that the cost of her repairs would exceed her value when repaired, and she is rendered unseaworthy and incapable of earning freight, a contract of affreightment for the carriage of cotton by her to a foreign port, evidenced by a bill of lading, containing the usual and customary exceptions, and providing for the payment of the freight money on the delivery of the cotton at that port, is thereby dissolved, so that the shipper is not liable for any part of the freight money, nor for any of the expenses paid by the vessel for compressing and stowing the cotton. In admiralty. Libel for freight. The facts appear in the opinion of the court. J/?. Thomas J. Semmes and Mr. Richard De Gray for the appellants cited The Soblomsten, L. R. 1 Adm. and Eccl. 293; The Cito, 7 L. R. Probate Div. 5 ; Cargo ex Galam, Br. & Lush. 167; Aitchison v. Lohre, 4 App. Cases, 755; The Kathleen, L. R. 4 A. & E. 269; Jones v. Holm, L. R. 2 Exchq. 335; Tindall v. Taylor, 4 Ellis & B. 219 ; 1 Parsons Maritime Law, 158-9; Clark v. Insurance Company, 2 Pick. 104; Palmer v. Lorilla/rd, 16 Johns. 348; Campbell v. Conner, 70 N. Y. 424; BuUdey n. Cotton Company, 24 How. 386; Jordan n. Karren Insurance Compa/ny, 1 Story, 342; Hubbell v. Great Kestern Insurance Company, 74 N. Y. 246; Shipton v. Thornton, 9 Ad. & E. 314; HuggN. Banking Company, How. 595; Hickie n. Bodoca/nachi, 4 Hurls. & N. 455. Hr. P. Phillips, Mr. J. McConnell, and Mr. W. Hallett Phillips for appellees. THE TORNADO. 343 Opinion of the Court. Mr. Justice Blatchford delivered the opinion of the court. This is a libel in admiralty against cargo of the ship Tornado, brought by the master and owners of that vessel, to recover freight money. The district court and, on appeal, the circuit court, dismissed the libel. The libellants have appealed to this court. The material facts found by the circuit court are these : On the 24th of February, 1878, the ship, while moored at the wharf in New Orleans, and bound on a voyage to Liverpool, England, and before she had broken ground for said voyage, was discovered to be on fire in her hold. Her master had given bills of lading for the transportation from New Orleans to Liverpool, with the exceptions usual in bills of lading, of 5,195 bales of cotton, of which 5,008 had been put on board, 164 were on the levee, and 23 had not reached the levee. Water was pumped into the ship to extinguish the fire, and, on the 26th, near six o’clock p. m., being filled with water, she sank to the bottom of the river alongside of the wharf, a part of her bulwarks remaining above water. While so resting upon the bottom of the river, the ship, cargo and freight were, on the 27th, libelled in the district court, for salvage, by the New Harbor Protection Company, and about two o’clock p. m. of that day the marshal, by virtue of a warrant of seizure issued by said court on said Ebel, took possession of the ship and cargo. On the 28th, about noon, the ship was pumped out and raised alongside the wharf, and the discharge of the cargo on board was commenced, all of it being damaged by water, and some of it by fire, 336 bales having been removed by the salvors in an undamaged condition before the ship sank but after the fire was discovered ; but salvage was claimed and allowed on the entire cargo. On the same day, the proctor for the salvors filed in the district court a motion in writing, suggesting that the whole cargo then being discharged from the ship was greatly damaged by water and some of it by fire and water, and would in all probability have ultimately to be sold, being in an unfit condition to be sent to its destination, and an order of the court was thereupon made directing a sale of the cargo by the marshal upon the levee as it came out of the ship, on two days’ advertisement, in such lots as might 344 OCTOBER TERM, 1882. Opinion of the Court. accumulate from day to day. On the same day an application was made to the court by the master of the ship, in which he represented that he was desirous and entitled to bond the ship and cargo, and asked for a rule upon the libellant to show cause on the next day, March 1st, why the order to sell the cargo should not be rescinded, and the master be allowed to bond the cargo. On March 1st the rule came on for hearing. The proctor for the salvors, and counsel representing the insurers of the cargo, appeared and resisted the rescinding of the order of sale, and counsel appeared for the master, who filed a formal claim to the ship and cargo. On the trial of the rule witnesses were examined orally before the judge, among them various representatives of the underwriters on the cargo, who were called as witnesses by the proctor for the salvors, and who testified that if their interest were to be consulted they preferred that the cotton should be sold by the marshal as it came out of the ship, and that the master should not be permitted to bond the cotton. The counsel for the insurers of the cargo then asked leave to be heard on their behalf. To this the counsel for the master and claimant objected, and insisted that counsel for the underwriters on the cargo could not be heard until after the proof of abandonment to them by the owners of the cargo and acceptance of the abandonment. Thereupon Mr. Palfrey, president of the Factors’ and Traders’ Insurance Company of New Orleans, which was one of the companies represented by said counsel, and one of the witnesses who had been called to the stand as above stated, was recalled by said counsel and testified that so far as his company was concerned the loss on the cargo had been paid or ordered to be paid, and said company had become the owner of the cotton insured by it, and abandonment thereof had been made and accepted by his company. After this said counsel was allowed to and did make an oral argument in behalf of the underwriters, in opposition to the motion to rescind the order to sell which had been obtained by the salvors, but no pleadings were filed in behalf of the underwriters. Upon the trial of the rule evidence was also taken, by order of the court, in relation to the condition of the cargo, and whether the same was or was not a total loss. On THE TORNADO. 345 Opinion of the Court. March 5th, and before the district court had made any decision or order on the rule to rescind the order for the sale of the cotton, a proctor representing underwriters at Lloyds, by leave of the court, filed an intervention for the interest of the insurers of the freight on the cargo, in which it was prayed that the order for the sale of the cargo be rescinded. This intervention was supported by affidavits filed by the intervenors and by a brief of the proctor. Afterwards, on March 6th, after consideration of the rule taken by the master of the ship to rescind the order of sale, and of the evidence and arguments thereon, and. of the last named intervention, and of the affidavits and brief submitted therewith, the court ordered that the master be allowed to bond the ship and such of the cotton then stored in the levee steam cotton-press as was in good order, amounting to 523 bales, and that the remainder of the cargo on board the ship or upon the levee, which was more or less damaged, be sold by the marshal after -three days’ notice, and all questions of freight were reserved by the court, and the court appointed a trinity master to advise and assist in making sale of the cotton. On the 19th of March, the underwriters filed their claim, claiming all of the cargo, and procured an order from the judge of the district court to be entered on their claim, suspending the right given to the master, on the 6th of March, to bond such of the cotton as was stored in the levee cotton-press, to wit, about 500 bales, until the further order of the court. On March 26th, the master not having bonded the cotton, a rule was taken and duly served on him to show cause why the order of March 6th, so far as it allowed him to bond a portion of the cotton, should not be rescinded, and the movers of the rule, the insurers of the cargo, be allowed to bond the same. The rule was heard on March 27th, the movers of the rule and the master being represented by their respective counsel, and was by the court made absolute, without opposition, and the order allowing the master to bond said portion of the cargo was rescinded, and the movers of the rule were allowed to bond the same. On the 30th of March, the present libel was filed. The unsold cargo and the proceeds of that which had been sold 346 OCTOBER TERM, 1882. Opinion of the Court. were then in the custody of the marshal, in the suit for salvage. The libel recites the proceedings above mentioned, and alleges that the cotton might have been picked, dried and rebaled, and sent to its destination and freight have been earned thereon, but that the application of the master to bond the cargo was refused, owing to the opposition of the libellant for salvage, and especially to the opposition of the underwriters on the cargo; and that, under the contract of carriage, it was the right as well as the duty and the desire of the libellants to pick, dry and rebale so much of the cotton as might require it, and which could easily have been done, and to carry it to its destination and earn the freight money for carrying it, which they had been unable to do because they had been denied the right to bond it, owing to the opposition of the libellant for salvage and of the underwriters on the cargo, resulting in the taking away of the cargo entirely from the master, in consequence of which the entire freight money agreed on became due, as well as money paid by the libellants for compressing and stowing the cargo in the vessel, and other expenses incident thereto, and for railroad charges, for all of which the libel claims a lien on the cargo and on the proceeds of sale. The circuit court found the following further facts: The libellants paid for compressing the cargo before it was put on board, and for stowing it on board, and other expenses incident thereto, $14,278.26. The gross freight on the cargo, had it been delivered at its destination in Liverpool, as required by the bills of lading, would have been £4,169 13$ Id. Of the cotton, 523 bales were in an undamaged and sound condition, being the 23, the 164 and the 336 before mentioned. In consequence of the fire, and as a result thereof, the ship was so badly damaged that the cost of her repairs would exceed her value when repaired, and she was unseaworthy and incapable of carrying freight. The 523 bales were bonded by the underwriters and were appraised at the sum of $19,100. The gross proceeds of the sale of the damaged cotton amounted to $116,000. The purchaser at the marshal’s sale shipped to Northern States, in the condition in which it came from the ship, 1,185 bales of the damaged cotton; and 2,896 bales more THE TORNADO. 347 Opinion of the Court. were picked, dried, rebaled and shipped, part to Liverpool and the rest to Philadelphia. All the damaged cotton taken from the ship was unmerchantable cotton, even after it had been picked, dried and rebaled, that is, it could not be used for making cotton cloth, but could only be used for making felt hats, paper, wadding and such like articles, having lost, by the submersion and drying, a large part of its natural oil, its fibre being injured and its weight reduced. On the facts so found the circuit court held that the libellants had no lien on the cargo or its proceeds, for freight or for the money paid by them for compressing and stowing the cargo, and dismissed the libel. The libellants seek to apply to the present case the principle applied where a voyage partly performed is interrupted by a disaster to the ship, namely, that the ship-owner has a lien on the cargo for the earning of the freight, and so has a right to carry the cargo forward by his vessel or some other conveyance, and deliver it and receive his full freight. As in the case of a disaster to the ship in the course of a voyage the whole freight is payable if, by the fault of the owner of the cargo, the master is prevented from forwarding the cargo from an intermediate port to its destination, it is contended in the present case that the libellants have a right to recover the whole agreed freight, because they had a right to send the cargo to Liverpool and earn full freight, and were prevented from doing so by the action of the underwriters, who became, by abandonment, the owners of the cargo. It is also contended that the owners had a right to repair the ship, even though the cost of repairing would exceed her value when repaired. The law'in regard to the respective rights and liabilities of shipper and ship-owner, where cargo has been carried for a v part of a voyage, is nowhere better expressed than by Lord Ellenborough, in Hunter v. Prinsep, 10 East, 378, 394: “The ship-owners undertake that they will carry the goods to the place of destination, unless prevented by the dangers of the seas, or other unavoidable casualties ; and the freighter undertakes that if the goods be delivered at the place of their desti- 348 OCTOBER TERM, 1882. Opinion of the Court. nation he will pay the stipulated freight ; but it was only in that event, viz., of their delivery at the place of destination, that he, the freighter, engages to pay anything. If the ship be disabled from completing her voyage, the ship-owner may still entitle himself to the whole freight, by forwarding the goods by some other means to the place of destination ; but he has no right to any freight if they be not so forwarded ; unless the forwarding them be dispensed with, or unless there be some new bargain upon this subject. If the ship-owner will not forward them, the freighter is entitled to them without paying anything. One party, therefore, if he forward them, or be prevented or discharged from so doing, is entitled to his whole freight; and the other, if there be a refusal to forward them, is entitled to have them without paying any freight at all. The general property in the goods is in the freighter ; the ship-owner has no right to withhold the possession from him, unless he has either earned his freight, or is going on to earn it. If no freight be earned and he decline proceeding to earn any, the freighter has a right to the possession.” These remarks were made in regard to a voyage partly performed, and interrupted by a disaster, where freight money was claimed pro rata itineris peracti. But no case can be found in which freight money has been allowed, where the voyage was not commenced, and the ship was, by a disaster for which the shipper was not at all responsible, put into the situation of the vessel in this case after the contract of carriage was made. In the present case the ship was rendered unseaworthy by the fire and incapable of earning freight, and was so badly damaged that the cost of her repairs would exceed her value when repaired. There is no suggestion in the findings that there was any intention of repairing her, and on the facts found it must be presumed she would not have been repaired. All that could have been done, if the cargo had been bonded by the master or ship-owners, in regard to sending it forward, would have been to send it by another vessel. But, although the order of March 6th allowed the master to bond the 523 THE TORNADO. 349 Opinion of the Court. undamaged bales, and there was no suspension of that order until the 19th of March, they were not bonded. We are of opinion that by the disaster which occurred before the ship had broken ground or commenced to earn freight, the circumstances with reference to which the contract of affr^ight-ment was entered into were so altered by the supervening of occurrences which it cannot be intended were within the contemplation of the parties in entering into the contract, that the shipper and the underwriters were absolved from all liability under the contract of affreightment. The contract had reference to a particular ship, to be in existence as a seaworthy vessel and capable of carrying cargo and earning freight and of entering on the voyage. All the fundamental conditions forming part of the contract of the ship-owner were wanting at the time when the earning of freight could commence. In addition, as the result of the fire, and by no fault of the shipper, all but 523 bales of the cotton was rendered unmerchantable, and put into such a condition that its owner might well hesitate to incur the expense of sending it to Liverpool. As to the undamaged cotton, the master had an opportunity for thirteen days to bond it, and failed to do so. The money paid by the ship-owners for compressing and stowing the cotton, and for other expenses incident thereto? must be understood as having been included in the freight money, and to be reimbursed out of that, and to be money for which, in any event, the shipper of the cotton would not have been liable in addition to the freight money. If the ship-owner was not entitled to the latter, he was not entitled to anything. He took, as to the expenses, the risk of losing them if he lost the freight money. So, the two are bound up together. It is an inherent element in a contract of affreightment under a bill of lading, that the vessel shall enter on the voyage named, and begin the carriage of goods shipped, or, as it is technically called, break ground, before a claim to freight money can arise, unless the shipper of the goods, the vessel remaining ready to enter on the voyage, undertakes to reclaim the goods. In the utter case, the circumstances under which the contract was entered into continuing substantially the same so far as respects 350 OCTOBER TERM, 1882. Opinion of the Court. the vessel, the shipper cannot reclaim the goods without paying at least full freight. But, subject to this qualification, it is a principle of the maritime law, that if a ship does not begin her voyage at all, does not break ground, no freight can be payable. This was laid down and applied in the early case of Curling v. Long, 1 Bos. & Pul. 634. That case has never been overruled and no case holding to the contrary is cited or has been found. It is a case directly in point in two particulars, and it will be useful, therefore, briefly to examine it. Some hogsheads of sugar were shipped, under bills of lading, on a vessel while lying in a port in Jamaica, bound for London. Before the vessel sailed she was cut out by privateers and carried to sea, but was recaptured and taken into another port. Under a libel for salvage in the Admiralty Court of Jamaica the cargo was sold by order of the court, and the net proceeds were remitted to the defendants for the owners of the cargo. The ship-owners had expended money in lading the cargo, according to the usage of the Jamaica trade. They sued the defendants to recover the freight money or the expenses. It was held that they could not recover anything; that the inception of freight was breaking ground ; and that the expenses incurred were to be reimbursed in the freight money or not at all. The case of Jones v. Holm, L. R. 2 Exch. 335, was a different case. By a charter-party, a vessel was to go to a specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, except a small part, not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to take the remainder of the cargo. The charterer refused to supply more cargo, and the vessel obtained a cargo and carried it to England at a less freight than she would have earned for a full freight under the charter-party. In a suit to recover damages for a breach of the charter-party, it was held the charterer was bound to complete the lading of the vessel. The authority of the case of Curling v. Long, is recognized in Bailey v. Damon, 3 Gray, 94; Burgess v. Gun, 3 Harr. & THE TORNADO. 351 Opinion of the Court. Johns. 225 ; Clemson v. Davidson, 5 Binn. 392 ; and in various text-books—3 Kent’s Com. 223; 1 Parsons on Ship. & Adm. 220; Abbott on Shipping, 11th Lond. ed. 407 ; Maclachlan on Shipping, 2d ed. 458; Smith’s Mercantile Law, 3d Am. ed. 400. On principle, this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence by no fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Caldwell, 3 Best & Smith, 826, it is laid down as a rule, that, “ in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied, that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance.” The reason given for the rule is, that without “ any express stipulation that the destruction of the person or thing shall excuse the performance,” “ that excuse is by law implied, because, from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel.” The rule was there applied to excuse the owner of a music hall, which had been burned, from fulfilling a contract to let the use of it. The principle was extended farther in Appleby v. Myers, L. R. 2 C. P. 651. There the plaintiffs contracted to erect certain machinery on the defendant’s premises at specific prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course of completion, the premises, with all the machinery and materials thereon, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the con- 352 OCTOBER TERM, 1882. Syllabus. tract, and that the plaintiffs were not entitled to sue in respect of those portions of the work which had been completed, whether the materials used had become the property of the defendant or not. See Benjamin on Sales, 3d Am. ed. § 570; Wells v. Calnan, 107 Mass. 514, and cases there cited. These principles are so well established that it is only necessary to refer to one case in this court, Jones v. United States, 96 U. S. 24, which recognizes them, in which it is said: “ Where an act is to be performed by the plaintiff before the accruing of the defendant’s liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfil the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. ... A contract may be so framed that the promises upon one side may be dependent on the promises upon the other, so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform his own stipulations, which áre a condition precedent to his right of action.” On a full consideration of the case, we are of opinion that the decree of the circuit court must be affirmed. THE CONNEMARA. SINCLAIR & Another v. COOPER & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF LOUISIANA. Decided April 30th, 1883. Salvage—Statutes. 1. A ship, towed by a steam tug down a river, came to anchor in the evening, and the tug was lashed to her side. In the night, no watch having been THE CONNEMARA. 353 Argument for Appellants. set, a passenger on board of her was awakened by a smell of smoke arising from a fire, which had broken out in part of the cargo stowed in the poop, and which endangered the ship and cargo. He gave the alarm to the officers and crews of the ship and of the tug ; and he and the officers, crew and passengers of the tug, working together, and by means of a steam pump and hose upon the tug, and unaided by the officers and crew of the ship, put out the fire in twenty minutes: Held, That this was a salvage service, and that the passenger on board the ship, as well as the owner, officers, crew and passengers of the tug, might share in the salvage. » 2. Under the act of Congress of 16th February, 1875, c. 77, a decree of salvage by the circuit court is not to be altered by this court for excess in the amount awarded, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case. In admiralty. Libel for salvage. Decree below for libellants, and appeal. The act of salvage was done on a voyage down the river Mississippi, the vessel being fully freighted for Liverpool. The salvors were a tugboat, the officers and crew of the vessel, and passengers on the vessel. The main contention was as to the amount of the salvage and as to the right of a passenger to participate. P. Phillips and Mr. IF. Hallett Phillips for appellants. —The tugboat and crew are not entitled to salvage : only to a liberal renumeration pro opere et labors. The Clifton, 3 Haggard Admr. 117, cited in Abbott on Shipping, marg’l p. 557. This court defines the elements of salvage service to be “ danger to property, value, risk of life, skill, labor, and the duration of the service.” Post n. Jones, 19 How. 150, at 161. It was long doubted whether a tug, while engaged in the service of a ship, could claim salvage. It is well settled that the fact of the service diminishes the quantum of reward. James’ Salvage, 40; Dr. Lushington in The Wm. Brandt. The main ingredient, danger, being absent in ordinary services rendered by tugs, large amounts should not be awarded. The Birdie, 7 Blatchford, 238. Sailing vessels are liberally rewarded on account of the danger which they run. The Blackwell, 10 Wall. 1. In the present case the tug ran no danger whatever. The only possible ground to be urged in support of the decree is the value vol. cvni—2-3 354 OCTOBER TERM, 1882. Opinion of the Court. of the ship and cargo ; but this should not constitute the main consideration of the case. Say the Privy Council : “ The rule seems to be that, though the value of the property salved is to be considered in the estimate of the remuneration, it must not be allowed to raise the quantum to an amount altogether out of proportion to the services actually rendered.” The Amérique, L. R. 6 P. C. Appeals, 468, 472. See also The Henry, 2 Eng. Law and Eq. 565 : Parsons on Shipping, 283. The decree in allowing salvage to a passenger is sustainable on no principle. See 3 Kent. Com. marg. p. 246. In a case where an officer in the Royal Navy rendered assistance to the ship in distress, of which he was a passenger, the court said : “ No case has been cited where such a claim by a passenger has been established. When there is a common danger it is the duty of every one on board to give all the assistance he can.” The Bra/nston, 2 Haggard, 3 ; The Clarita, 23 Wall. 1 ; The Yrede, 1 Lush. 322. In the latter case, Dr. Lushington is thus reported: “ Services rendered by passengers must have occurred over and over again, yet, except the cases of the Branston and the Sala-cia, there is apparently no precedent on which a claim for salvage by a passenger has been prosecuted in this court.” The exception to the general rule is again expressed in these terms : “If they assume extraordinary responsibility and devise original and unprecedented means by which the ship is saved after her officers have proved themselves powerless.” The Great Eastern IT. S. D. C. for N. G., per Shipman. Air. Bichard Be Gra/y, Air. J. B. Beckwith and Air. Chas. W. Hornor for appellees. Me. Justice Gbay delivered the opinion of the court. This is a libel in admiralty by the owner, master and crew of the steam towboat Joseph Cooper, Jr., for salvage on the ship Connemara and cargo. Louis Wurtz and Henry Holser, passengers on the towboat, and John Evers, a passenger on the ship, were permitted to file intervening libels. The value of the ship and cargo was agreed to be $236,637. The district court awarded as salvage eight per cent, on that value, or THE CONNEMARA. 355 Opinion of the Court. $18,930.96; and the owners and claimants of the ship appealed to the circuit court. The circuit court found the following facts: On the 15th of April, 1879, the ship Connemara, being in the port of New Orleans, with her cargo on board, consisting chiefly of pressed cotton, and bound on a voyage for Liverpool, England, engaged the towboat Joseph Cooper, Jr., to tow her to the mouth of the Mississippi River, and was by her towed about twenty-six miles down the river, and came to anchor about eight o’clock in the evening opposite the Belair plantation. About eleven o’clock at night, the ship, with the towboat lashed to her side, was lying with her bow to the current and her stern to the wind, which was blowing stiffly; no watch had been set; and the two mates and the boatswain of the ship were under the influence of liquor, and the captain and the rest of the crew were sober. Evers, a passenger on board the ship, being then asleep in the second mate’s cabin, was awakened by a smoke of burning cotton, sprang from his berth, and gave the alarm to the officers and crews of the ship and of the towboat. The fire was not in the hold, but in the poop above the main deck, and near the door, which could be opened by raising the. latch; and the fire, when discovered, was confined to three bales of cotton, a spare sail, and two coils of tarred rope. There were one hundred and twenty-seven bales of cotton stowed in the poop. The fire was not caused by the fault of the towboat, or by any defect in her equipment or management. The towboat had on her deck a pump worked by steam, and hose long enough to reach the fire on the ship. As soon as the alarm was given, and.by the exertions of the towboat’s officers and crew, of her two passengers and of Evers, the hose was laid from the pump to the deck of the ship, and by their use of this pump and hose the fire was put out in fifteen or twenty minutes, without any damage to ship or cargo, beyond the burning of the sail and the two coils of rope, the partial burning of the three bales of cotton, and the charring of a part of the upper deck or roof of the poop. In extinguishing the fire, there was no serious risk of loss or damage to the towboat, or of injury to life or limb of any of the salvors. No efficient 356 OCTOBER TERM, 1882. Opinion of the Court. effort was made by the officers or the crew of the ship to extinguish the fire. The ship had on her deck, within fifteen feet of the fire, two tanks of water, holding four, hundred gallons each, one of which was full and the other half full, with six buckets near the fire and seven above, and a pump by which water could have been pumped upon the upper deck. At the time of the fire, the steam tug Harry Wright was lying about a quarter of a mile off; and there was a telegraph station on the Belair plantation, from which a dispatch could have been sent to the city of Hew Orleans for aid to put out the fire, and efficient aid might have reached the ship from the city in two hours and a half after notice. The agreed value, as aforesaid, of the Connemara and cargo, and the names and monthly wages of each of the officers and crew of the Joseph Cooper, Jr., were also stated in the findings of fact. From these facts the circuit court made and stated the following as conclusions of law: 1st. The services rendered by the towboat Joseph Cooper, Jr., her officers and crew, and the three passengers, Wurtz, Holser and Evers, in the extinguishment of the fire on board the ship Connemara, were a salvage service. 2d. A gross salvage on the ship and cargo of $14,198, or six per cent, on the value thereof, should be allowed. 3d. This salvage should be equally divided, half to the owner of the towboat and half to the salvors. 4th. The moiety allowed to the salvors should be distributed among them in proportion to their monthly wages, the passengers Wurtz and Evers to rank as pilots, and Holser as a steersman. A decree was entered-accordingly, and the claimants appealed to this court. A motion to dismiss the appeal for want of jurisdiction was made and overruled at October term, 1880. The Connemara, 103 U. S. 754. The errors assigned are: First. That the facts found do not constitute a salvage service. Second. That if a salvage service, it is salvage of the lowest grade, and the amount allowed is exorbitant. Third. That the amount allowed to John Evers, he being a passenger on board the Connemara, is not warranted by law. THE CONNEMARA. 357 Opinion of the Court. Neither of the grounds assigned will justify this court in reversing the decree. If the fire, which had made such headway as to wholly consume the two coils of tarred rope and the spare sail, and to partly destroy three bales of the cotton stowed in the poop, had not been promptly discovered and extinguished, there was imminent danger that it would extend to the rest of that cotton, and, fanned by the stiff breeze which was blowing lengthwise of the ship, destroy or greatly damage the ship and the whole cargo. Saving a ship from imminent danger of destruction by fire is as much a salvage service as saving her from the perils of the seas. The Blackwell, 10 Wall. 1. The shortness of the time occupied in rescuing the ship from danger does not lessen the merit of the service. The General Palmer, 5 Notes of Cases, 159, note; The Syrian, 2 Marit. Law Cas. 387; Sonderburg v. Ocean Towboat Company, 3 Woods, 146. The danger being real and imminent, it is not necessary, in order to make out a salvage service, that escape by other means should be impossible. Talbot n. Seeman, 1 Cranch, 1, 42. The fact that no serious risk was incurred on the part of the salvors does not change the nature of the service, although an important element in estimating its merit and the amount of the reward. As has been well said by Mr. Justice Curtis, “ The relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property, constitute a case of salvage. It may be a case of more or less merit, according to the degree of peril in which the property was, and the danger and difficulty of relieving it. But these circumstances affect the degree of the service, not its nature.” The Alphonso, 1 Curtis, 376, 378. The contract of the towboat and her officers and crew was to tow the ship, and did not include the rendering of any salvage service, by putting out fire or otherwise. Such a service, which, by the use of the steam pump and engine of the towboat, rescued the ship from an unforeseen and extraordinary peril, gave the owner as well as the officers and crew of the 358 OCTOBER TERM, 1882. Opinion of the Court. towboat a right to salvage. The William Brandt, Jr., 2 Note of Cases, Supplement, Ixvii.; The Saratoga, Lush. 318; The Minnehaha, 15 Moore P. C. 133 ; xS. C. Lush. 335; The Annapolis, Lush. 355, 361, 372. And no doubt is or could be raised as to the right of the passengers on the towboat, whose exertions contributed to putting out the fire, to share in the salvage awarded to her officers and crew. The Cora, 2 Pet. Adm. 361; S. C 2 Wash. C. C. 80; The Hope, 3 Hagg. Adm. 423. Evers, the passenger on the Connemara, was also entitled to share in the salvage. A passenger cannot indeed recover salvage for every service which would support a claim by one in no wise connected with the ship. In the case of a common danger, it is the duty of every one on board the ship to give every assistance he can, by the use of all ordinary means in working and pumping the ship, to avert the danger. Yet a passenger is not, as the officers and crew are, bound to stand by the ship to the last; he may leave her at any time and seek his own safety; and for extraordinary services, and the use of extraordinary means, not furnished by the equipment of the ship herself, by which she is saved from imminent danger, he may have salvage. Newman v. Walters, 3 B. & P. 612; The Branston, 2 Hagg. Adm. 3, note ; The Salacia, 2 Hagg. Adm. 262, 269; The Vrede, Lush. 322; The Pontiac, 5 McLean, 359, 363; The Great Eastern, 2 Marit. Law Cas. 148; N. C. 11 Law Times (N. S.), 516; The Stella Marie, Young’s Adm. 16; 3 Kent Com. 246. The services of Evers were of peculiar value, and involved the use of means outside the ship. His promptness and vigilance gave the alarm, which, by the supineness and neglect of the officers and crew of the ship, might not otherwise have been given in time to save her. This might not of itself have entitled him to reward; but beyond this he exerted himself, as if he had been one of the officers and crew of the towboat, in the use of the steam pump and hose on board of her, by which the fire on the ship was effectually subdued. It may also be observed that this case comes before us on the appeal of the owners of the ship; and that there is no controversy, either between Evers and the other salvors, or between THE CONNEMARA. 359 Opinion of the Court. the salvors who gave their personal exertions and the owners of the towboat whose machinery was used, as to the distribution of the salvage. The services performed being salvage services, the amount of salvage to be awarded, although stated by the circuit court in the form of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case. The Blaireau, 2 Cranch, 240, 267; The Adventure, 8 Cranch, 221, 228; The Emulous, 1 Sumner, 207, 213; The Cora, above cited; Post v. Jones, 19 How. 150, 161. In The Sybil, 4 "Wheat. 98, Chief Justice Marshall said: “It is almost impossible that different minds contemplating the same subject, should not form different conclusions as to the amount of salvage to be decreed and the mode of distribution.” And by the uniform course of decision in this court, during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the Judicial Committee of the Privy Council of England, exercising a like jurisdiction, the amount decreed below was never reduced, unless for some violation of just principles, or for clear and palpable mistake or gross over-allowance. Hobart v. Drogan, 10 Pet. 108, 119 ; The Comanche, 8 Wall. 448, 479 ; The Neptune, 12 Moore P. C. 346; The Carrier Dove, 2 Moore P. C. (N. S.) 243; N. C. Brown. & Lush. 113; The Fusilier, 3 Moore P. C. (N. S.) 51; N. C. Brown. & Lush. 341. By the act of Congress of 16th February, 1875, c. 77, the appellate power of this court is restricted within narrower bounds ; its authority to revise any decree in admiralty of the circuit court is limited to questions of law; and the finding of facts by that court is equivalent to a special verdict, or to facts found by the court in an action at law when a trial by jury is waived. The Abbottsford, 98 U. S. 440 ; The Francis Wright, 105 V. S. 381; Sun Insurance Company v. Ocean Insurance Company, 107 IT. S. 485. The effect of this change may be illustrated by referring to 360 OCTOBER TERM, 1882. Opinion of the Court. the revisory power of the courts in actions at law tried hy a jury. The facts are decided by the jury in the first instance. If the jury return a general verdict, clearly against the weight of evidence, or assessing exorbitant damages, the court in which the trial is had may set aside the verdict and order a new trial. But a court of error, to which the case is brought by bill of exceptions or appeal on matter of law only, cannot set aside the verdict, unless there is no evidence from which the conclusion of fact can be legally inferred. Parks v. Ross, 11 How. 362; Schuchardt n. Allens^ 1 Wall. 359. Before the act of 1875, this court, upon an appeal in a case of salvage, gave the same weight, and no more, to the decree of the court below, that a court of common law would allow to the verdict of a jury; and might revise that decree for manifest error in matter of fact, even if no violation of the just principles which should govern the subject was shown. Post v. Jones, 19 How. 150, 160. Since the act of 1875, in cases of salvage, as in other admiralty cases, this court may revise the decree appealed from for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case. In the present case, a vessel and cargo of great value were rescued from imminent danger by the energetic efforts of the salvors; and the amount of salvage awarded is less than onesixteenth of the value of the property saved. Although upon the circumstances of the case, so far as they can be brought before us by the summary of them in the findings of facts by the circuit court, we might have been better satisfied with an award of a smaller proportion, we cannot say that the amount awarded is so excessive as to violate any rule of law. Decree affirmed. ADRIATIC FIRE INS. CO. v. TREADWELL. 361 Statement of Facts. ADRIATIC FIRE INSURANCE COMPANY v. TREADWELL. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Decided April 30th, 1883. Contract. Several insurance companies having policies on the same property agreed together to defend against claims for insurance, by a written instrument of which the following is the material part: the said companies will unite in resisting the claim made upon said policies, and on each thereof, and in the defence of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies, and will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata ; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement. The management and conduct of said resistance to said claims and defence of said suits and proceedings shall be and is fully entrusted to and devolved upon a committee to be composed of W. H. Brazier and James R. Lott, of the city of New York, Charles W. Sproat, of the city of Boston, L. S. Jordan, of the city of Boston, which committee shall have full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto, and to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defence of said suits as said committee shall deem necessary and expedient; such assessment upon and payment by each of said companies to be pro rata, as above mentioned. The committee named in the agreement communicated it to the defendant in error, and employed him as counsel in resisting the suits. On a suit for professional service brought by him against the companies jointly : Held, That any contract there may have been between him and the companies was several not joint. Action by defendant in error, who was plaintiff below, to recover $15,000 for professional services claimed to have been rendered to the plaintiffs in error jointly. . The defence was that the contract was several. The agreement between the companies 362 OCTOBER TERM, 1882. Opinion of the Court. on which the alleged joint contract was founded appears in the opinion of the court. The court below held the contract to be joint, and gave judgment for the plaintiff below for $8,000. The defendants below sued out their writ of error and brought the case here. Mr. John E. Parsons for plaintiff in error. Mr. Luther E. Marsh and Mr. William G. Wilson for defendant in error. Me. Justice Matthews delivered the opinion of the court. This action was brought by the defendant in error to recover compensation for professional services as an attorney and counsellor at law, rendered, as alleged, at the instance and request of the defendants in error, and each of them, as well as of sundry other corporations not inhabitants of the Southern District of New York or of the State of New York, nor found therein, and, therefore, not joined, as defendants below, in and about the defence of certain suits brought against several of them in Massachusetts, but in which all had a common interest, and for which it is alleged these companies, including the plaintiffs in error, jointly and severally promised to pay what said services were actually worth. The cause was tried by a jury, and resulted in a verdict and judgment for the plaintiff below, to reverse which, for errors of law alleged to have occurred in the rulings of the court during the trial and presented in a bill of exceptions, this writ of error is prosecuted. The plaintiff below put in evidence an agreement in writing, signed by fifteen insurance companies, including the defendants, a copy of which is as follows: “ In re Taylor, Randall & Company ' versus I The St. Paul Fire & Marine Insurance Company et als. “The undersigned insurance companies, having policies outstanding issued to Taylpr, Randall & Company, upon property at Central Wharf, Boston, upon which claims have been made against ADRIATIC FIRE INS. CO. v. TREADWELL. 363 Opinion of the Court. said companies, do, in consideration of one dollar, by each paid to the other, and divers other good and valuable considerations, mutually covenant and agree to and with each other as follows, that is to say: the said companies will unite in resisting the claim made upon said policies, and on each thereof, and in the defence of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies, and will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings pro rata ; that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement. The management and conduct of said resistance to said claims and defence of said suits and proceedings shall be and is fully entrusted to and devolved upon a committee to be composed of W. H. Brazier and James R. Lott, of the city of New York, Charles W. Sproat, of the city of Boston, L. S. Jordan, of the city of Boston, which committee shall have full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto, and to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defence of said suits as said committee shall deem necessary and expedient; such assessment upon and payment by each of said companies to be pro rata, as above mentioned. “ Each and every of said companies shall fully and faithfully adhere to this agreement, and shall refrain from any act or proceeding in reference to such claims or suit, or the defence thereof, that can or may in anywise defeat, obstruct, or interfere with the acts or proceedings of said committee relative thereto, and shall at all times furnish to said committee any and all papers, information, and assistance in and about such management and conduct of such resistance and defence as may be in the possession or power of said companies respectively, and as may be desired by said committee. “ In witness whereof the said insurance companies have sub- 364 OCTOBER TERM, 1882. Opinion of the Court. scribed this agreement, this twenty-fourth day of April, eighteen hundred and seventy-four.” Prior to the execution, of this agreement, suits had been commenced against some of the companies, other than the plaintiffs in error, in Boston, in one of which the agreement itself is entitled ; and the defendant in error had been employed to defend them. After the agreement had been signed, the committee named in it employed the defendant in error on behalf of all the companies parties to it. He testified that the agreement was shown to him, and that he accepted the invitation to become the attorney of the companies. The employment was general, no special terms being fixed, and it is not questioned that it was with full knowledge of the agreement between the companies, and according to the authority conferred by it upon the committee. The plaintiff below having proved the fact and value of the services rendered, rested his case, at the conclusion of which and afterwards again, after all the evidence had been put in, the defendants below requested the court to instruct the jury to find a verdict for the defendants, on the ground “ that the agreement was not one under which any joint liability could be created; that the provisions of the agreement were specific, the parties to the agreement were only to pay severally and pro rata any amount that should become due under the agreement.” This instruction the court refused to give, and that refusal is now assigned for error. The committee appointed by the agreement between the insurance companies, were special agents only for the purposes and within the limits declared in it. They had no authority to bind their principals beyond its import, and the limits of that authority were made known to the defendant in error when he accepted employment from them. Whatever authority to bind the companies in making that employment had been conferred upon them by the agreement, they in fact exerted. So that the question to be determined is, whether that agreement conferred upon the committee authority to bind the companies jointly, or jointly and severally, to pay the expenses of the hti- ADRIATIC FIRE INS. CO. v. TREADWELL. 365 Opinion of the Court. gation; or, whether they became liable, severally only, each for its proper proportion. The contract, it will be observed, is between the companies. No other person is a party. The promises are between them severally. Each binds itself to each of the others. There is no joint undertaking or promise, on the part of all, to any one else. They “ mutually covenant and agree to and with each other.” They do agree, indeed, that they “ will unite in resisting the claim made upon said policies, and on each thereof, and in the defence of any and all suits and legal proceedings that have been or may be instituted against any of said companies upon any of said policies; ” but, as to the obligation of payment on that account, its nature and extent, the agreement is, that they “ will, when and as required by the committee hereinafter mentioned, contribute to and pay the costs, fees, and expenses of said suits and proceedings prorata ‘ that is to say, each company shall pay such proportion of said costs, fees, and expenses as the amount insured by said company shall bear to the whole amount insured on said property by all the companies subscribing to this agreement.” These expressions leave no doubt as to the intention of the parties in regard to the limit of their several liabilities as between themselves. The management and conduct of this common defence was entrusted to and devolved upon a committee of named persons; and the powers and rights of that committee are expressly defined. They are given full power and authority to employ counsel and attorneys to appear for said companies and each thereof, and defend said suits and legal proceedings, and to employ other persons for other services relative thereto. They are thus constituted the agents, for the purposes named, of the parties to the contract, and whatever they do within the terms of that agency, which, of course, is not general, but special, binds the parties according to their agreement. The committee is not a party to the agreement, but derives its powers from it and has rights under it, chiefly the right of reimbursement for expenses and indemnity for obligations legitimately incurred. This right would be implied, if it were not expressed; but if the mode and measure of it are expressly declared, no impli- 366 OCTOBER TERM, 1882. Opinion of the Court. cation can enlarge its limits. It is in fact expressly defined. The committee have, by the further provisions of the agreement, also, full power and authority “ to assess upon and demand and receive from such companies, from time to time, as such committee shall deem proper, such sum or sums of money for the compensation of such counsel and attorneys, and such other persons, and all other expenses of such defence of said suits as said committee shall deem necessary and expedient, such assessment upon and payment by each, of said companies to be pro rata, as above mentioned.” It is very clear, we think, from this language, that for any advances made by the committee for the expenses of the defence, or for any indemnity against any personal liability they may have incurred in conducting it, they could have no personal recourse upon the companies except by way of assessment upon them severally, each for its own proportion, according to the ratio fixed by the agreement. Such proportion could be enforced by action against each delinquent company. There is no ground on which the companies could be made jointly responsible, so that any one or more could be required to make good the default of any of the rest. The fund for the payment of all the obligations contemplated by the agreement is limited, in express terms, to be raised in the mode pointed out in it by & pro rata assessment upon each for its individual share. Such being the relation between the several companies and the committee, those employed by the latter for the purposes of the agreement can have no greater rights than such as grow out of it. The agency being special, those who claim under it are bound by its limitations ; and in the present case the defendant in error, it is admitted, had actual knowledge of them. So that, though the employment by the committee established a privity between him and the parties to the contract, giving him a right to treat the companies directly as his principals and employers, nevertheless it must be taken to be only to the extent of the authority of the committee under the agreement, and subject to the limitations imposed by it upon the liability of the companies. He must be considered as relying, if he did not stipulate for the individual liability of the members of the ADRIATIC FIRE INS. CO. v. TREADWELL. 367 Opinion of the Court. committee, upon their power to raise the fund for the payment of his compensation by the assessment under the agreement ; which, being made, he would have a right to enforce ; or which, if denied to him wrongfully, would entitle him to his action, as if it had been made, or against the committee for not making it. But there is no ground on which he can claim that the employment of the committee imports a joint promise of compensation from the companies, in the face of the express restrictions upon the power of the committee to bind them otherwise than severally, each in proportion to its interest. The defendant in error is and can be in no better position by reason of the employment by the committee under the agreement between the companies, than the committee would have been if they had made the advances required, or than he would have been if he had been a direct party to that agreement, employed by the companies according to its terms. There is not only nothing in the agreement from which it could be inferred that the companies were to be sureties for each other, but that inference is expressly negatived by the declaration, according to which each is to be Hable for its own separate and proportionate part. Similar reasoning, leading to like conclusions upon analogous facts, is to be found in many reported cases. We select, as illustrations, the following : Peckham v. North Parish in Ha/eer-hil\ 10 Pick. 274; Ludlow v. He Créa, 1 Wend. 228; Ernst v. Bartie, 1 Johns. Cas. 319; Howe v. Handley, 25 Maine, 116; Gilson v. Lapton, 9 Bing. 297 ; Fell v. Goslin, 21 Law J. Rep. N. S. Exch. 14. In our opinion the court below should have instructed the jury, as requested by the plaintiffs in error, to render a verdict for the defendants below, on the ground that no joint liability had been proven ; and its dechning to do so was error, for which the judgment is reversed, with directions to grant a new trial. And it is so ordered. 368 OCTOBER TERM, 1882. Statement of Facts. SCRUGGS’ Executor & Others v. MEMPHIS & CHARLESTON RAILROAD COMPANY & Others. APPKAK FROM THE DISTRICT COURT OF THE UNITED STATES FOK THE NORTHERN DISTRICT OF MISSISSIPPI. Decided April 30th, 1883. Equity—Feme Covert—Lease—Marshalling of Assets—Mortgage. A railroad company agreed with A that he might erect a building on property of the company, paying a ground rent therefor for a period terminable by notice, and that at the expiration or termination of the term the company would take the building at a valuation to be fixed by arbitration. A entered into possession, and constructed a valuable building, and then conveyed his interest in the term to his wife. A gave a note to B in which the wife joined as surety and the husband and wife executed a mortgage of the premises to B to secure payment of the note. A and his wife gave notice to terminate the term and called for an arbitration to fix the value of the improvements. Arbitration was had, and a price was fixed by the arbitrators as the sum to be paid for the improvements under the agreement and the date when the same was payable, and judgment was entered accordingly in a court of record. Pending these proceedings A died. At the time of the arbitration there was rent in arrear, and it was agreed that this should not enter into the arbitration, but should be subject to future adjustment. The company neglecting to pay the sum fixed by the arbitrators, the wife remained in possession after A’s death, receiving the rents and profits, and attempted to enforce the judgment by an execution. On a bill in equity filed by the company to restrain the enforcement of the judgment and for an account, and a bill of interpleader making B a party for the protection of his rights, Held, 1. That the wife was entitled to interest on the judgment sum from the date fixed in the decree for the payment, and was bound to account for the rents and profits of the premises which were received, or might reasonably have been received by her after the date fixed by the arbitrators for the payment of the money from the railroad company. 2. That B’s lien was valid under the laws of Mississippi, against the income of the property. And that, there being two funds in the possession of the court, one the decree and the other the interest upon the decree, a court of equity should so marshal the assets as to pay the lien of B from the interest on the decree. On January 8th, 1872, a decree was rendered by the Chancery Court of Alcorn County, in the State of Mississippi, in favor of Narcissa Scruggs, one of the appellants, against the SCRUGGS v. MEMPHIS & CHARLESTON R.R. CO. 369 Statement of Facts. Memphis and Charleston Railroad Company, for the sum of $31,666.66, and interest thereon from January 21st, 1871. This decree was, on December 14th, 1874, affirmed, on appeal, by the Supreme Court of Mississippi, and a decree rendered against the railroad company and the sureties on its appeal bond for the amount of the decree of- the Chancery Court of Alcorn County, and interest thereon, and $1,583.33 damages, the whole to bear interest until paid. The transactions which gave rise to the litigation which resulted in this decree were as follows*: On July 7th, 1857, John W. Scruggs, the husband of said Narcissa, made a contract in writing with the railroad company, by which he agreed to erect on its land at Corinth, Mississippi, which was one of the stations on the company’s road, a railroad hotel, and conduct it in. a manner acceptable to the railroad company, and pay the company an annual ground rent of $250. It was provided that should the railroad company at any time become dissatisfied with the manner in which the hotel was carried on, the right was reserved to it to take possession thereof by paying Scruggs its value, and if Scruggs became dissatisfied with the schedule or management of the company, he reserved the right to surrender the improvements put by him on the land, and to require the company to pay their value at the time of surrender. Scruggs erected a hotel building according to the contract, and kept therein a boarding house for the officers and employees of the railroad company, and a house of refreshment for travellers, until April 21st, 1871. About that time he conveyed the hotel building and other improvements by him put upon the land, and his leasehold in the land, to his wife, Narcissa. On the day just mentioned, Scruggs and his wife and the president of the railroad company agreed with each other that the lease should cease and determine, and the property should be surrendered to the railroad company. And as there was some dispute between the parties in reference to the construction of the contract of July 7th, 1857, they agreed to submit to arbitrators to decide upon the legal construction of said agreement, and the value of said improvements, and the amount which should be paid therefor by the railroad company to Mrs. Scruggs upon vol. cviu—24 370 OCTOBER TERM, 1882. Statement of Facts. the surrender of the premises. All other questions arising under said agreement, whether as to the rights of the party to recover damages or otherwise, were expressly reserved. It was further agreed that the award of the arbitrators should be entered as a decree of the Chancery Court of Alcorn County. The arbitrators on April 21st, 1871, made their award as follows: “ The Memphis and Charleston Railroad Company shall pay to the said Narcissa Scruggs the sum of thirty-one thousand six hundred and sixty-six dollars and sixty-six cents, in full payment of all the improvements placed on the ground occupied hy the Scruggs House on the grounds of said company, at Corinth, Mississippi, and on payment of said sum of money, the said Narcissa Scruggs shall deliver possession of said hotel to said railroad company. “ We do further decide and decree, that the true construction of the contract is, that by its terms J. W. Scruggs acquires a perpetual Ibase on the ground occupied by the said hotel on the payment of the sum of two hundred and fifty dollars per annum rent, and subject to be defeated by the Memphis and Charleston Railroad Company only on the condition that Scruggs failed to keep a first-rate eating house, and by the said J. W. Scruggs, on condition that said Memphis and Charleston railroad failed to use said hotel as an eating house. “We do further determine, that from the evidence in the case and the articles of submission and contract, that the sum to be paid by the Memphis and Charleston Railroad Company to said Narcissa Scruggs, is, as heretofore mentioned, the value of the property surrendered to the Memphis and Charleston Railroad Company.” The railroad company refused to pay the award or to take possession of the property. Whereupon, on May 2d, 1871, Narcissa Scruggs filed her bill in the Chancery Court of Alcorn County to enforce the performance' of the award. After the bringing of the bill, the counsel of the parties filed in the case an agreement in writing, as follows: “ In the above case it is agreed that the amount due to the de- SCRUGGS v. MEMPHIS & CHARLESTON R.R. CO. 371 Statement of Facts. fendant as ground rent for the land upon which the Corinth Hotel is built, as specified in the lease to J. W. Scruggs, was not included in the award by the arbitration ; and it is agreed that the amount due for the same for said rent shall be deducted from whatever amount may be found to be due by the award of said arbitrators ; and that the said Scruggs shall be permitted to set off as against said rents, any amount due him by said railroad for board of employees, &c., the said amount to be adjusted by reference to the master of the chancery court.” The litigation commenced by this bill resulted in the decree of the Supreme Court of Mississippi above mentioned. In the meantime, to wit, on August 13th, 1871, John W. Scruggs had died. On January 8th, 1875, upon an attempt by Mrs. Scruggs to enforce the payment of this decree by execution, the bill in the present case was filed by the railroad company in the Chancery Court of Alcorn County. The bill averred that the decree of the Alcorn Chancery Court above mentioned, which was affirmed by the Supreme Court of Mississippi, established a debt in favor of Mrs. Scruggs against the railroad company for $31,666.66, with interest from April 21st, 1871, and fixed that date for the surrender of the premises by Mrs. Scruggs to the railroad company, and gave her a hen on the premises for the payment of the decree, and upon failure of the railroad company to pay the same within thirty days ordered a sale of the property, and that the decree left Mrs. Scruggs as a mortgagee in possession until the sum above mentioned was paid. The bill further averred that the decree should be reduced by the ground rents due the railroad company up to April 21st, 1871, and for the use and occupancy, rents and profits of said premises, from that date up to the filing of the bill, which had been enjoyed and received by Mrs. Scruggs, amounting in all to the sum of $25,000. The bill averred that Mrs. Scruggs had caused an execution to be issued against the railroad company and the sureties on its appeal bond to enforce collection of the entire decree; that she was insolvent, and if allowed to collect the decree in full the credit to which the railroad company was 372 OCTOBER TERM, 1882. Statement of Facts. entitled would be a total loss. The prayer of the bill was for an injunction to restrain proceedings on the execution, and for a reference to a master to report the amount due the railroad company for ground rents up to April 21st, 1871, and the amount of rents of the premises received by Mrs. Scruggs from that date to the date of the master’s report, and that the amount reported by the master as due the railroad company for ground and other rents might be credited on the decree. An injunction was allowed as prayed for. Mrs. Scruggs answered the bill, admitting her retention of the possession of the property, but denied her liability for rents, and averred that she was not only entitled to the rents but also to the amount of the decree and the penalty adjudged by the Supreme Court, and interest on both, and set up said decree as res judicata and conclusive in her favor. At this stage df the cause it was, on petition of the railroad company, removed to the District Court of the United States for the Northern District of Mississippi. Upon motion made to the district court, the injunction allowed by the State court was modified so as to restrain the collection of only $20,000 of the decree, and Mrs. Scruggs was required to give, and did give, a refunding bond in the sum of $10,000, for the repayment of any sum which might on final hearing be decreed against her. An execution having issued to collect the residue of the decree, less the said $20,000, the railroad company paid the marshal $J9,217. On September 24th, 1875, the railroad company filed its amended bill and bill of interpleader, in which it averred that one J. H. Viser claimed to have a lien on the decree in favor of Mrs. Scruggs against the railroad company, and it brought into court the sum of $2,510, the residue of the decree not enjoined or not paid to the marshal, and made Viser and Mrs. Scruggs defendants, and prayed that the rights of all parties might be settled and determined. On December 24th, 1875, the district court decreed as follows : That the railroad company is entitled to have credited on the amount awarded and decreed (by the supreme court of the State) “ the reasonable rents which she,” Mrs. Scruggs, SCRUGGS v. MEMPHIS & CHARLESTON R.R. CO. 373 Opinion of the Court. had “actually received or might have received by prudent management, or for any period she actually, by herself or agent, occupied the hotel and property at Corinth, from May 11th, 1871, forward to the date of the receivers taking possession under a former order of this court,” and ordered a reference to a master to report the. amount with which the decree should be credited by reason of the rents received, and the use and occupancy of said premises by Mrs. Scruggs. On the next day the court decreed that Viser was entitled to $1,382 of the $2,510 paid in by the railroad company on filing its bill of interpleader, that being the amount of a judgment recovered by him against Mr. Scruggs, and for the payment of which the railroad company had been duly summoned as garnishee. Upon the coming in of the master’s report, the court refused to deduct from the decree in favor of Mrs. Scruggs, any sum for ground rents due the railroad company, and having reduced the amount of rent reported by the master as due from Mrs. Scruggs, applied the residue as a credit upon said decree, and as the result of such application found that there was due from Mrs. Scruggs to the railroad company on the refunding bond the sum of $179, for which it rendered a decree in favor of the railroad company against Mrs. Scruggs and the sureties on said bond, and also rendered a decree in favor of Viser against the same parties for $3,807.27. From this decree Mrs. Scruggs, and E. R. Matthews and James Matthews, the sureties on the refunding bond, appealed to this court. -Vz’. H P. Branham for appellant. William V. C. Hume and Hr. Doroid II. Poston for appellees. Mr. Justice Woods delivered the opinion of the court. Mrs. Scruggs now complains of the decree, so far as it concerns the railroad company, on the sole ground that it directed the value of the rents and occupancy of the hotel and improve- 374 OCTOBER TERM, 1882. Opinion of the Court. ments to be credited upon the decree in her favor against the railroad company. She also insists that the decree against her in favor of Viser was erroneous, for reasons which will be found stated hereafter. Her contention is, that having obtained a decree for the value of the hotel and improvements built by John W. Scruggs upon the lands of the railroad company, with damages for the appeal, and interest, to be paid upon the surrender by her of the hotel and improvements to the railroad company, she was entitled to the payment of her decree with interest, and as long as the railroad company failed to pay the decree, was not chargeable with the rents or the value of the occupancy of the premises while she retained possession. We cannot assent to this claim. It appears from the agreement to submit to arbitrators, that both parties, the railroad company on the one hand, and John W. Scruggs and Narcissa, his wife, to whom he had conveyed his leasehold and improvements, on the other, had agreed that the property should be surrendered to the railroad company, and that, in pursuance of the original contract between John W. Scruggs and the railroad company, the latter was to pay the value of the improvements. It was mainly to fix the value of these improvements that the reference to arbitrators was made, and it was agreed that on the payment of the sum so fixed Scruggs and his wife should surrender the property to the railroad company, and the amount so fixed should “ be a lien' on said property.” The arbitrators decided that on the payment of the sum awarded by them, Mrs. Scruggs should deliver the possession of the hotel to the railroad company. In her bill filed to enforce this award, Mrs. Scruggs prays that the railroad company may be compelled to pay the award, and that “ her lien for the same on said property may be enforced.” The court in which her bill was filed made a decree to the effect that Mrs. Scruggs had a lien on the property for the amount of said award, with interest thereon from January 21st, 1871, ordered its payment within thirty days, and in default of payment, directed that the property should be sold and the SCRUGGS v. MEMPHIS & CHARLESTON R.R. CO. 375 Opinion of the Court. proceeds applied to the payment of the amount due on the award. This decree was in all respects affirmed by the Supreme Court of Mississippi. We think that upon these facts Mrs. Scruggs must in equity be treated as if she was a mortgagee in possession. All the parties and the chancery and supreme courts have treated the sum awarded Mrs. Scruggs as a hen upon the property, and it was decreed, and no one disputed, that she was entitled to retain possession until her lien was discharged. Treating her as a mortgagee in possession, she is accountable for the net rents and profits of the estate. If her possession was by tenant, she is accountable for such net rents and profits as she could with reasonable diligence have received. Moore v. De Grow, 1 Halst. Ch. 346; Benham v. Rowe, 2 Cal. 387; Kellogg v. Rockwell, 19 Conn. 446; Harrison v. Wyse, 24 Conn. 1; Reiteribaugh v. Ludwick, 31 Penn. St. 131; Breckenridge v. Brooks, 2 A. K. Marsh, 335; Tharp v. Feltz, 6 B. Mon. 6; Anthony v. Rogers, 20 Missouri, 281. There is no equity in the contention of Mrs. Scruggs, that she should receive interest on the debt secured by her hen, and not account for the rents and profits of the property on which her lien rested while it was in her possession. She says that the railroad company might have had immediate possession by paying the amount of the award. So any mortgagee in possession might say the mortgagor could take possession on paying off the mortgage debt, but this does not excuse the mortgagee from accounting for the rents and profits of the mortgaged property received by him. It appears that the railroad company had ground for refusing to pay the sum awarded by the arbitrators as the value of the property. The only question submitted to the arbitrators was the true construction of the contract between John W. Scruggs and the railroad company, and the value of the property, or rather, as the arbitrators understood it, the value of the improvements placed by John W. Scruggs on the land of the railroad company. They were not authorized to adjust and settle the accounts between the railroad company and Scruggs. When, therefore, Mrs. Scruggs filed her bill to en- 376 OCTOBER TERM, 1882. Opinion of the Court. force the award, it was admitted by her counsel that the matter of the ground rent was not included in the award, and that the same ought to be deducted from the amount awarded by the arbitrators, and that she should be permitted to set off as against such rents any amount due by the railroad company for board of employees, the said amount to be adjusted by reference to the master of the court. The award did not, therefore, settle the controversy between the parties. The railroad company was justified in refusing to pay the award until the deductions therefrom, to which it was admitted that it was entitled, should be ascertained, and in defending the suit brought by Mrs. Scruggs to enforce the payment of the entire award. While this litigation was pending, the rents and profits actually received in cash by her were $10,514, and she herself occupied the premises in person for two years. The court below found that there was due the railroad company, by reason of rents incurred by Mrs. Scruggs and the occupancy of the premises by her, the sum of $17,414.50. The testimony in the record fully sustains this finding. As Mrs. Scruggs insisted that she should have interest on the amount decreed her by the Chancery and Supreme Courts of Mississippi, she was not entitled also to claim the rents of the premises. The case, therefore, stands thus: The railroad company was indebted to Mrs. Scruggs in the sum of $31,666, which was a lien upon the premises, and Mrs. Scruggs was in possession. On the other hand, the amount of the decree and interest, it was admitted, were subject to be reduced by the ground rents due to the railroad company. Mrs. Scruggs, who was shown to be insolvent, was proceeding to collect by execution the full amount of her decree, with interest; the railroad company was compelled, in order to protect itself from loss, to file the bill in this case to have the decree credited with the amount due for the ground rents. While this litigation was pending, Mrs. Scruggs received in cash rents to the amount of $10,514, and occupied the premises herself two years. She was clearly liable to account for the rents received by her, and for a reasonable rental while the premises were actually occupied by her. The court below did not charge her SCRUGGS v. MEMPHIS & CHARLESTON R.R. CO. 377 Opinion of the Court. with a dollar for which she was not accountable. So far, therefore, as the decree relates to the controversy between her and the railroad company, it is a just and proper decree. It remains to consider that part of the decree by which the debt claimed by J. H. Viser was ordered to be paid out of the money due from the railroad company on the decree in favor of Mrs. Scruggs. After the bill of interpleader, filed by the railroad company, Viser filed his cross-bill against the company and Mrs. Scruggs, in which he alleged that, on May 11th, 1869, John W. Scruggs and Narcissa, his wife, executed to him a mortgage upon the leasehold and improvements thereon, known as the Scruggs House, of which said Narcissa was then the owner, to secure a note dated the same day as the mortgage, made by them for the payment to him of $5,000 twelve months after date, and prayed that the railroad company might be compelled to pay to him, out of the moneys due from it to Mrs. Scruggs, the amount due him on said note and mortgage. This relief was resisted by Mrs. Scruggs on the ground that, at the date of the note and mortgage, she was a feme covert and incompetent, under the law of Mississippi, to encumber her property for her own or her husband’s debts. In the suit which Mrs. Scruggs brought in the Chancery Court of Alcorn County to enforce the award of the arbitrators, Viser, who had been made a party defendant, had filed his answer and cross-bill, setting up said note and insisting that the mortgage given to secure it was a lien on said property. Upon appeal to , the Supreme Court of Mississippi, that court decided that the mortgage was a good lien on the income of the property covered thereby. Viser v. Scruggs, 49 Miss. 705. The property covered by the mortgage was represented by the decree rendered in favor of Mrs. Scruggs against the railroad company for $31,666. The income of the decree represented by the interest was, as appears by the report of the master, ample to pay the demand of Viser. There was no application of the income until the court made the final decree in this case.. There were then two funds, the principal and the interest of the decree. Viser had a lien on 378 OCTOBER TERM, 1882. Opinion of the Court. the interest, and the demand of the railroad company was payable out of either principal or interest. Following, therefore, the practice of courts of equity in marshalling securities, Aldrich v. Cooper, 8 Ves. 382, the court directed the payment of Viser’s lien out of the interest. In doing this no injustice was suffered by Mrs. Scruggs. The method adopted for calculating the amount due on the decree was according to the established rules in such cases. The debt due Viser was clearly proven. It was payable out of a fund which in effect was in possession of the court, and the court was right in ordering it to be paid. It is contended for Mrs. Scruggs that the debt of Viser could only be satisfied by laying hold of the corpus of the property by a receiver and through him collecting the income and applying it. But in this case there was no necessity for a receiver for the property, and its income'was virtually in the hands of the court. The appointment of a receiver was, under the circumstances of the case, unnecessary and impracticable. The property was a decree of court, of which a receiver could not take possession. Complaint is made by appellants because the decree of the circuit court for the payment of Viser’s demand was rendered, not only against Mrs. Scruggs, but against the sureties on the refunding bond given by her. It is said that the bond was payable to the railroad company and the court was not justified in rendering a decree in favor of Viser against the sureties. The bond took the place of $10,000 which was virtually in possession of the court to do with as justice and equity might require. The court disposed of the sum payable on the bond as if it had been so much money in the registry of the court. It is true the bond was payable to the railroad company. But the amount decreed to be paid to Viser was deducted from the sum due the railroad company on the refunding bond, and the appellants have no ground of complaint. The decree of the circuit court was in all respects right, and it must therefore l>e affirmed. Justices Field and Matthews did not sit in this case, and took no part in its decision. BOESE v. KING. 379 Statement of Facts. BOESE, Receiver, v. KING & Others. IN ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK. Decided April 30th, 1883. Assignment for the Benefit of Creditors—Bankruptcy—Conflict of Law. 1. A general assignment for the benefit of creditors, made without intent to hinder, delay, or defraud creditors, is valid for the purpose of securing an equal distribution of the estate of the assignor among his creditors, in proportion to their several demands, except as against proceedings instituted under the Bankrupt Act for the purpose of securing the administration of the property in a bankruptcy court. 2. A general assignment of a debtor’s property made for the benefit of creditors, purporting to be made under a State Insolvent Law which had, at the time of the assignment, been suspended in whole or in part by a bankrupt act, may nevertheless be sustained as sufficient to pass a title to assignees in the absence of proceedings in bankruptcy impeaching it, or of appropriate steps by the assignor for its cancellation. 3. The assignees of a debtor under a general assignment for the ratable distribution of his property among his creditors, purporting to be made under a local insolvent law of the State in which the debtor resides, deposited for convenience the proceeds of the sales of the debtor’s property in a bank in another State. In the latter State, creditors of the debtor obtained judgment and execution against him. The execution being returned unsatisfied, the judgment creditors, under a local law of the latter State, obtained the appointment of a receiver of the debtor’s property within that State. The receiver, thereupon, brought suit against the assignees for the sum so deposited, claiming it as the property of the debtor : Held, That the receiver was not entitled by reason of any conflict between the local statute and the Bankrupt Act, or by force of the judgment and the proceedings thereunder, to the possession of the assigned property or of its proceeds, as against the assignees, or to a priority of claim for the benefit of the judgment creditors upon such proceeds. Suit by a receiver appointed by a State court in New York on return of execution unsatisfied; brought in New York against assignees of the property of the judgment debtor under an assignment for the benefit of creditors, made in accordance with the laws of New Jersey (of which State the assignees and the debtor are citizens), and to recover proceeds of the debtor’s property voluntarily brought within the State of New York by the assignees for distribution under the assignment. 380 OCTOBER TERM, 1882. Statement of Facts. By deed of assignment executed and delivered September 25th, 1873, Wm. H. Locke, a citizen of New Jersey, transferred and conveyed to Wm. King, John M. Goetchius, and Edward E. Poor, and the survivor of them, and their and his heirs and assigns, all his property of every kind and description—except such as was exempt by law from execution—“ in trust to take possession of and collect and to sell and dispose of the same at public or private sale in their discretion, and to distribute the proceeds to and among the creditors of the said Wm. H. Locke, in proportion to their several just demands, pursuant to the statutes in such case made and provided, and on the further trust to pay the surplus, if any there be, after fully satisfying and paying the said creditors and all proper costs and charges, to the said Wm. EL Locke.” The intention of Locke and the assignors was to have a distribution made among the creditors of the former in conformity with the requirements of an act of the legislature of New Jersey, passed April 16th, 1846, entitled “ An Act to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors.” That act provided, among other things, that every conveyance or assignment by a debtor of his estate, real or personal or both, in trust, to an assignee for the benefit of creditors, shall be made for their equal benefit in proportion to their several demands to the net amount that shall come to the hands of the assignee for distribution; and all preferences of one creditor over another, or whereby one shall be first paid or have a greater proportion in respect to his claim than another, shall be deemed fraudulent and void, excepting mortgage and judgment creditors, when the judgment has not been by confession for the purpose of preferring creditors (§ 1); further, that the debtor shall annex to his assignment an inventory, under oath or affirmation, of all of his property, together with a list of his creditors, and the amount of their respective claims, such inventory not, however, to be conclusive as to the quantity of the debtor’s estate, and the assignee to be entitled to any other property belonging to the debtor at the time of the assignment, and comprehended within its general terms (§ 2). Other 381 BQESE v. KING. Statement of Facts. sections provided for public notice by the assignee of the assignment ; for the presentation of claims of creditors; for filing by the assignee under oath of a true inventory and valuation of the estate; for the execution by him of a bond in double the amount of such inventory or valuation; for the recording of such bond ; for the filing with the clerk of the court of common pleas of the county of the debtor’s residence, within three months after the date of the assignment, of a list of all such creditors as claim to be such, and the amount of their demands, first making it known by advertisement that all claims against the estate must be made as prescribed in the statute, or be forever barred from coming in for a dividend of said estate, otherwise than as provided; for the right of the assignee or any creditor or person interested to except to the allowance of any claim presented; for the adjudication of such exceptions; for fair and equal dividends from time to time among the creditors of the assets in proportion to their respective claims ; and for a final accounting by the assignee in the orphans’ court of the county—such settlement and adjudication to be conclusive on all parties, except for assets which may afterward come to hand, or for frauds or apparent error (§§ 3, 4, 5, 6 and 7). The act further provided “ § 11. If any creditor shall not exhibit his, her, or their claims within the term of three months as aforesaid, such claim shall be barred of a dividend unless the estate shall prove sufficient after the debts exhibited and allowed are fully satisfied, or such creditor shall find some other estate not accounted for by the assignee or assignees before distribution, in which case such barred creditor shall be entitled to a ratable proportion therefrom. “ § 12. Whenever any assignee or assignees, as aforesaid, shall sell any real estate of such debtor or debtors as is conveyed in trust as aforesaid, he or they shall proceed to advertise and sell the same in manner as is now or may hereafter be prescribed in the case of an executor or administrator directed to sell lands by an order of the orphans’ court for the payment of the debts of the testator or intestate. “ § 13. Every assignee, as aforesaid, shall have as full power 382 OCTOBER TERM, 1882. Statement of Facts. and authority to dispose of all estate, real and personal, assigned, as the said debtor or debtors had at the time of the assignment, and to sue for and recover in the proper name of such assignee or assignees, everything belonging or appertaining to said estate, real or personal, of said debtor or debtors, and shall have full power and authority to refer to arbitration, settle and compound, and to agree with any person concerning the same, and to redeem all mortgages and conditional contracts, and generally to act and do whatever the said debtor or debtors might have lawfully done in the premises. “ § 14. Nothing in this act shall be taken or understood as discharging said debtor or debtors from liabilities to their creditors who may not choose to exhibit their claims either in regard to the persons of such debtors or to any estate, real or personal, not assigned as aforesaid, but with respect to the creditors who shall come in under said assignment and exhibit their demands as aforesaid for a dividend, they shall be wholly barred from having afterward any action or suit at law or equity against such debtors or their representatives, unless on the trial of such action or hearing in equity the said creditor shall prove fraud in the said debtor or debtors with respect to the said assignment, or concealing his estate, real or personal, whether in possession, held in trust, or otherwise.” The estate which came into the hands of the assignees was converted into money in New Jersey—the amount being nearly $200,000—and the proceeds, for the convenience of the assignees, were deposited in a bank in the city of New York. No proceedings in bankruptcy were ever taken against Locke. On the 3d day of February, 1876, William Pickhardt and Adolph Kutroff recovered a judgment against Locke in the Supreme Court of the City and County of New York for $3,086.85. Upon that judgment execution was issued and returned unsatisfied. Subsequently, May 27th, 1876, in certain proceedings, before one of the judges of that court, supplementary to the return of execution, Thomas Boese, plaintiff in error, was appointed receiver of the property of Locke, and having executed a bond for the faithful discharge of the duties of his trust, he obtained an order from the same court giving him BOESE v. KING. 383 Opinion of the Court. authority, as receiver, to bring an action against the assignees of Locke. Thereupon, June 9th, 1876, he commenced this action. It proceeds upon these grounds : 1. That the indebtedness from Locke to Pickhardt and Kutroff arose in New York, where they reside, before the making of said assignment; 2. That the statute of New Jersey with reference to or under which said assignment was made was, by force of the Bankruptcy Act of 1867, suspended and of no effect; 3. That the assignment was fraudulent and void by the laws of New Jersey, in that it was made with the intent upon the part of Locke to hinder, delay, and defraud his creditors, and in that he had a large amount of money and other property which he fraudulently retained to his own use and did not surrender to the assignees. The prayer of the complaint—the allegations of which were fully met by answer—was for judgment against the defendants ; that the assignments be adjudged fraudulent and void; and that the defendants be required to account to plaintiff for all the property and money received or to which they are entitled under and by virtue of the assignment. It was conceded at the hearing that defendants had in their hands, of the proceeds of the sale of the assigned property, an amount sufficient to pay the judgment of Pickhardt and Kutroff. The Supreme Court of New York, both in general and special terms, sustained the action and gave judgment against the assignees in favor of Boese, as receiver, for the amount of the demand of Pickhardt and Kutroff. But in the Court of Appeals that judgment was reversed, with directions to enter judgment for the defendants. The receiver brought the suit here in error asking to have this decision reversed. C. Bainbridge Smith for plaintiff in error. A. P. Whitehead for defendant in error. Mr. Justice Harlan delivered the opinion of the court. After reciting the facts in the foregoing language he continued : 384 OCTOBER TERM, 1882. Opinion of the Court. We are to consider in this case whether the final judgment of the Court of Appeals of New York has deprived the plaintiff in error of any right, title, or privilege under the Constitution or laws of the United States. We dismiss from consideration all suggestions in the pleadings of actual fraud upon the part either of Locke or of his assignees. The court of original jurisdiction found as a fact— and upon that basis the case was considered by the Court of Appeals—that the assignment was executed and delivered by the former and accepted by the latter in good faith and without any purpose to hinder, delay, or defraud any creditor of Locke. It is further found as a fact that the assignment was made with the intent, honafide, to make an equal distribution of the proceeds of the trust estate among creditors, in conformity with the local statute. The Supreme Court of New York ruled that the statute of New Jersey was, in its nature and effect, a bankrupt law, and the power conferred upon Congress to establish a uniform system of bankruptcy, having been exercised by the passage of the act of 1867, the latter act wholly suspended the operation of the local statute as to all cases within its purview ; consequently, it was held, the assignment was not valid for any purpose. The Court of Appeals, recognizing the paramount nature of the Bankrupt Act of Congress, and assuming that the 14th section of the New Jersey statute, relating to the effect upon the claims of creditors who exhibit their demands for a dividend, was inconsistent with that act, and therefore inoperative, adjudged that other portions of the local statute providing for the equal distribution of the debtor s property among his creditors, and regulating the general conduct of the assignee, were not inconsistent with nor were they necessarily suspended by the act of 1867; further, that the New Jersey statute did not create the right to make voluntary assignments for the equal benefit of creditors, but was only restrictive of a previously existing right, and imposed, for the benefit of creditors, salutary safeguards around its exercise, consequently, had the whole of the New Jersey statute been superseded, the right of a debtor to make a voluntary assignment would still have existed. The assignment, as a transfer BOESE v. KING. 385 Opinion of the Court. of the debtor’s property, was, therefore, upheld as in harmony with the general object and purposes of the Bankrupt Act, unassailable by reason merely of the fact that some of the provisions of the local statute may have been suspended by the act of 1867. In the view which we take of the case it is unnecessary to consider all of the questions covered by the opinion of the State court and discussed here by counsel. Especially it is not necessary to determine whether the Bankrupt Act of 1867 suspended or superseded all of the provisions of the New Jersey statute. Undoubtedly the local statute was, from the date of the passage of the Bankrupt Act, inoperative in so far as it provided for the discharge of the debtor from future liability to creditors who came in under the assignment and claimed to participate in the distribution of the proceeds of the assigned property. It is equally clear, we think, that the assignment by Locke of his entire property to be disposed of as prescribed by the statute of New Jersey, and therefore independently of the bankruptcy court, constituted, itself, an act of bankruptcy, for which, upon the petition of a creditor filed in proper time, Locke could have been adjudged a bankrupt, and the property wrested from his assignees for administration in the bankruptcy court. In re Burt, 1 Dillon, 439, 440 ; In re Goldschmidt, 3 Bank. Reg. 164; In matter of Seymour T. Smith, 4 Bank. Reg. 377. The claim of Pickhardt and Kutroff existed at the time of the assignment. The way was, therefore, open for them, by timely action, to secure the control and management of the assigned property by that court for the equal benefit of all the creditors of Locke. But they elected to he by until after the expiration of the time within which the assigmnent could be attacked under the provisions of the Bankrupt Act ; and now seek, by this suit in the name of the plaintiff in error, to secure an advantage or preference over all others ; this, notwithstanding the assignment was made without any intent to inder, delay, or defraud creditors. In order to obtain that advantage or preference, the plaintiff in error relies on the paramount orce of thé Bankrupt Act, the primary object of which, as this court has frequently announced, was to secure equality among vol. cvm—25 386 OCTOBER TERM, 1882. Opinion of the Court. the creditors of a bankrupt. Mayer v. Hellman, 91 U. 8. 496-501; Heed n. McIntyre, 98 IT. S. 507-509; Buchanan v. Smith, 16 Wall. 277. It can hardly be that the court is obliged to lend its aid to those who, neglecting or refusing to avail themselves of the provisions of the act of Congress, seek to accomplish ends inconsistent with that equality among creditors which those provisions were designed to secure. If it be assumed, for the purposes of this case, that the statute of New Jersey was, as to each and all of its provisions, suspended when the Bankrupt Act of 1867 was passed, it does not follow that the assignment by Locke was ineffectual for every purpose. Certainly, that instrument was sufficient to pass the title from Locke to his assignees. It was good as between them, at least until Locke, in some appropriate mode, or by some proper proceedings, manifested a right to have it set aside or cancelled upon the ground of a mutual mistake in supposing that the local statute of 1846 was operative. And in the absence of proceedings in the bankruptcy court impeaching the assignment, and so long as Locke did not object, the assignees had authority to sell the property and distribute the proceeds among all the creditors, disregarding so much of the deed of assignment as required the assignees, in the distribution of the proceeds, to conform to the local statute. The assignment was not void as between the debtor and the assignees simply because it provided for the distribution of the proceeds of the property in pursuance of a statute, none of the provisions of which, it is claimed, were then in force. Had this suit been framed for the purpose of compelling the assignees to account to all the creditors for the proceeds of the sale of the property committed to their hands, without discrimination against those who did not recognize the assignment and exhibit their demands within the time and mode prescribed by the New Jersey statute, a wholly different question would have been presented for determination. It has been framed mainly upon the idea that by reason of the mistake of Locke and his assignees in supposing that the property could be administered under the provisions of the local statute of 1846, even while the Bankrupt Act was in force, the title did not pass for the benefit of creditors accord- BOESE v. KING. 387 Dissenting Opinion: Matthews, Miller, Gray, Blatchford, J J. ing to their respective legal rights. In. this view, as has been indicated, we do not concur. We are of opinion that, except as against proceedings instituted under the Bankrupt Act for the purpose of securing the administration of the property in the bankruptcy court, the assignment, having been made without intent to hinder, delay, or defraud creditors, was valid, for at least the purpose of securing an equal distribution of the estate among all the creditors of Locke, in proportion to their several demands, Reed v. McIntyre, 98 U. S. 507-509; and, consequently, we adjudge only that the plaintiff in error is not entitled, by reason of any conflict between the local statute and the Bankrupt Act of 1877, or by force of the before-mentioned judgment and the proceedings thereunder, to the possession of the assigned property or of its proceeds, as against the assignees, or to a priority of claim for the benefit of Pickhardt and Kutroff upon such proceeds. The judgment is affirmed. Mr. Justice Matthews (with whom concurred Miller, Gray, and Blatchford, J J.), dissenting. Mr. Justice Miller, Mr. Justice Gray, Mr. Justice Blatchford, and myself, are unable to agree with the opinion and judgment of the court in this case. The grounds of our dissent may be very generally and concisely stated as follows: The New Jersey statute of April 16th, 1846, the validity and effect of which are in question, is an insolvent or bankrupt law, which provides for the administration of the assets of debtors who make assignments of all their assets to trustees for creditors, and for their discharge from liabilities to creditors sharing m the distribution. It was accordingly in conflict with the National Bankrupt Act of 1867 when the latter took effect, and from that time became suspended and without force until the repeal of the act of Congress. It is conceded that the 14th section, which provides for the discharge of the debtor, is void by reason of this conflict, and, in our opinion, this carries with it the entire statute. For the statute is an entirety, and, to take away the distinctive feature contained in the 14th section, 388 OCTOBER TERM, 1882. Dissenting Opinion : Matthews, Miller, Gray, Blatchford, JJ. destroys the system. It is not an independent provision, but an inseparable part of the scheme contained in the law. This being so, the assignment in the present case must be regarded as unlawful and void as to creditors. For it was made in view of this statute and to be administered under it. Such is the express recital of the instrument and the finding of the fact by the court. It is as if the provisions of the act had been embodied in it and it had declared expressly that it was executed with the proviso that no distribution should be made of any part of the debtor’s estate to any creditor except upon condition of the release of the unpaid portion of his claim. It is not possible, we think, to treat the assignment as though the law of the State in view of which it was made, and subject to the provisions of which it was intended to operate, had never existed, or had been repealed before its execution. Because there is no reason to believe that, in that state of the case, the debtor would have made an assignment on such terms. To do so is to construct for him a contract which he did not make and which there is no evidence that he intended to make. It must be regarded, then, as a proceeding under the statute of New Jersey, and as such, with that statute, made void, as to creditors, by the National Bankrupt Act of 1867. Otherwise that uniform rule as to bankruptcies, which it was the policy of the Constitution and of the act of Congress pursuant to it, to provide, would be defeated. No title under it, therefore, could pass to the defendants in error, and the judgment creditors who acquired a lien upon the fund in their hands were by law entitled to appropriate it, as the property of their debtor, to the payment of their claims. For these reasons we are of opinion that the judgment of the Court of Appeals of New York should be reversed. WARREN v. KING. 389 Opinion of the Court. WARREN & Others v. KING & Others. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF INDIANA. Decided May 7th, 1883. Preferred Stock—Railroads. Certificates of preferred stock of the Ohio and Mississippi Railway Company were issued, containing the following language : “ The preferred stock is to be and remain a first claim upon the property of the company after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company seven per cent, per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock ; and whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of seven per cent, on the preferred stock in full, and seven per cent, dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings after such payments shall be divided upon the preferred and common shares equally, share by share : ” Held, That the preferred stockholders had no claim on the property superior to that of creditors under debts contracted by the company subsequently to the issue of the preferred stock, and that their only valid claim was one to a priority over the holders of common stock. Bill to foreclose two railroad mortgages, and cross-bill by preferred stockholders to have their stock declared a lien on the property prior to one of the mortgages. On a demurrer the cross-bill was dismissed. The plaintiffs in that bill appealed. Mr. G. P. Lowrey for the appellants. Mr. E. M. Johnson, Mr. Edward Colston and Mr. B. Harrison for King and others, appellees. Mr. Wheeler H. Peckham for Campbell, appellee. Mr. Justice Blatchford delivered the opinion of the court. In November, 1876, William King and others, holders of second mortgage bonds and of Springfield Division bonds of the Ohio and Mississippi Railway Company, filed a bill in the Circuit Court of the United States for the District of Indiana, to foreclose two mortgages on the property of the company, 390 OCTOBER TERM, 1882. Opinion of the Court. subject to a first mortgage. In August, 1877, Allan Campbell, a defendant in that suit and trustee of one of the two mortgages, called the second mortgage, and also of the first mortgage, filed a bill and a cross-bill in the same court, to foreclose those two mortgages. In January, 1879, the two suits were consolidated. In December, 1879, George Henry Warren and others, as owners of preferred stock of the company, having been made parties defendant to the consolidated suit, filed a cross-bill. To this cross-bill a general demurrer for want of equity was interposed. The court sustained the demurrer, and entered a decree dismissing the cross-bill for want of equity. King n. Ohio and Mississippi Railroad Company, 2 Fed. Rep. 36. From this decree the plaintiffs in that bill have appealed to this court. The sole question involved is whether the preferred stockholders are entitled to have their shares of stock declared to be a lien on the property of the company next after the first mortgage. As the question arises on demurrer, the allegations of the cross-bill are to be taken as true. The Ohio and Mississippi Railroad Company, having been incorporated by Indiana in February, 1848, was incorporated by Ohio in March, 1849, and by Illinois in February, 1851. Under a second mortgage made by it in January, 1854, all thè property and franchises of the Illinois company were sold, on a foreclosure of that mortgage, in June, 1862, to the Ohio and Mississippi Railroad Company, an Illinois corporation created in February, 1861, for the purpose of purchasing the property and franchises of the Illinois corporation of February, 1851. The property and franchises of the Indiana and Ohio corporations were sold, under judicial decrees, in January, 1867, subject to certain mortgage debt recited in the decrees, to Allan Campbell and others, “ trustees of creditors and stockholders of said Ohio and Mississippi Railroad Company (eastern division).” This trust was created by an instrument in writing dated December 15th, 1858, and known as the “ trust agreement of creditors and stockholders of the Ohio and Mississippi Railroad Company of Indiana and Ohio.” By it Allan Campbell and others were created trustees, for the purpose of providing for and protecting claims of WARREN v. KING. 391 Opinion of the Court. judgment creditors and other persons holding liens on the property and franchises of the company, and also certain holders of unliquidated demands against it, and also the interests of the stockholders of the company. Such interests of the creditors and stockholders became vested in the trustees from time to time, so that on the 14th of September, 1867, they were the owners, subject to the terms of the trust agreement, of the rights, claims and interests of all the creditors and stockholders of the company in its property and franchises, except those existing under a first mortgage made in May, 1853. The trustees issued, in exchange for the interests they so acquired, certificates in two classes, preferred and common. Under an amendment made in April, 1863, to the trust agreement, the trustees purchased, for the benefit of the trust and the persons interested therein under the agreement of December, 1858, all the stock and a portion of the bonds of the Illinois company of 1851, sometimes called the Western Division. On the 14th of September, 1867, the certificate holders, by an instrument known as “ Amendments to the trust agreement of December, 1858,” resolved that the trustees had made the purchase of January, 1867, for the benefit of those interested in the trust agreement of December, 1858, and had, in virtue of the amendment of April, 1863, purchased all the stock and a portion of the bonds of the Illinois company of 1851; that, by such purchases, the whole road from Cincinnati to St. Louis had become the property of the trust, subject only to outstanding mortgages ; that it was the intention of all parties interested in the trust to form a new corporation, to which the entire property of the trust might be transferred, in accordance with the original agreement, such property to consist of all the rights and interests in the railroad in the three States; that the capital stock of the new corporation should consist of 35,000 shares of preferred stock and 200,000 shares of common stock, being in all $23,500,000 of stock, which should be issued and distributed to the owners of trustees’ certificates registered on the books of the trust, as follows, namely, to owners of preferred certificates, preferred full-paid stock, for the amount of such preferred certificates, at the rate of one share of preferred stock 392 OCTOBER TERM, 1882. Opinion of the Court. for every $100 of preferred certificates; that it should “ be declared upon the face of said preferred stock that it is to be and remain a first claim upon property of the corporation after its. indebtedness,” that the holders thereof shall be entitled to receive from the net earnings of the company .7 per cent, per annum upon the amount of said stock, payable semi-annually, “ and to have such interest paid in full, for each and every year, before any payment of dividend upon the common stock of said corporation, and that whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of 7 per cent, on the preferred stock in full, and 7 per cent, dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings, after such payments, shall be divided upon the preferred and common stock equally, share by share; ” that the common stock should be issued to holders of common certificates at the same rate; that the new corporation should be authorized to create a new mortgage bn its entire property, consisting of 340 miles of railroad from Cincinnati to St. Louis, and upon the contemplated improvements thereon, for an amount not exceeding $6,000,000, $4,000,000 whereof should be used exclusively to take up the then outstanding bonds issued under the mortgages theretofore created on said road; that, if a branch should be built to Louisville, the new corporation might increase the preferred stock at the rate of $10,000 for each mile in length of- such branch, and the $6,000,000 mortgage to the amount of $15,000 for each •mile of such branch; and that holders of the outstanding bonds of the old company, both eastern and western divisions, and holders of bonds to be issued by the new corporation, should be entitled to one vote for each $100 of bonds so held, at all stockholders’ meetings, and on all affairs of the corporation. Under statutes of Indiana and Ohio, Allan Campbell and others, as such trustees, became a corporation in those States by the name of the Ohio & Mississippi Railway Company. Its capital stock was fixed at 35,000 shares, of $100 each, of preferred stock, and 200,000 shares, of $100 each, of common WARREN v. KING. 393 Opinion of the Court. stock, and provision was made, in the certificate of incorporation, for increasing its preferred stock in an amount not exceeding $10,000 a mile for each mile of a branch to Louisville. In November, 1867, the Illinois company and the Indiana & Ohio company were consolidated under the name of the Ohio & Mississippi Railway Company, by articles of consolidation which provided for issuing preferred and common capital stock of the consolidated company to the extent above stated, and that the consolidated corporation should be authorized to create a new mortgage on the road for $6,000,000, of which $4,000,000 should be appropriated and used to take up the then existing mortgage bonds on the property, and should have— “All such further powers and rights as are conferred and contemplated in certain amendments adopted by the certificate holders at a meeting held by them on the 14th day of September, a. d. 1867, of an agreement dated December 15th, a. d. 1858, of the creditors and stockholders of-the Ohio & Mississippi Railroad Company of Indiana & Ohio, said agreement representing a trust which, at the date of said amendments, embodied the entire ownership of the property of both said companies so consolidated.” The consolidated company issued preferred stock to the amount of 35,000 shares, upon certificates in the following form: . “ OHIO AND MISSISSIPPI BAIL WAY COMPANY. “Reorganized and consolidated 1867. “ Preferred stock. “ This is to certify that is entitled to shares of the preferred capital stock of the Ohio and Mississippi Railway Company, of one hundred dollars each, transferable only on the books of said company, in the city of New York, in person or by attorney, on the surrender of this certificate. The preferred stock is to be and remain a first claim upon the property of the corporation after its indebtedness, and the holder thereof shall be entitled to receive from the net earnings of the company seven per cent, per annum, payable semi-annually, and to have such interest paid in full, for each and every year, before any payment of dividend 394 OCTOBER TERM, 1882. Opinion of the Court. upon the common stock ; and whenever the net earnings of the corporation which shall be applied in payment of interest on the preferred stock and of dividends on the common stock shall be more than sufficient to pay both said interest of seven per cent, on the preferred stock in full, and seven per cent, dividend upon the common stock, for the year in which said net earnings are so applied, then the excess of such net earnings after such payments shall be divided upon the preferred and common shares equally, share by share.” These preferred shares were issued in exchange for the trustees’ preferred certificates, in pursuance of the resolutions of September 14th, 1867. The cross-bill alleges that the certificate holders, by the resolutions of September 14th, 1867, intended and declared that the preferred stock to be issued should give to its holders not only a preference in respect to dividends over the common stock, but also the preference of a specific and continuing lien and security upon the property of the new corporation, next after the then existing mortgage indebtedness; that it was in accordance with and in execution of this intention that the certificate holders further resolved that it should be declared upon the face of the certificates of such preferred stock that it should be and remain a first claim upon the property of the corporation after its indebtedness; that the indebtedness referred to in the resolutions, and in the preferred stock certificates, was such indebtedness only as should arise under the $6,000,000 mortgage, that amount being designed to represent, and having been authorized for the purpose of taking up and cancelling the indebtedness existing at the time of the consolidation of the property of the two consolidating companies; and that the consolidated company, under the articles of consolidation, became bound to perform the provisions of the amendments of September, 1867, to the trust agreement, as to preferred stock, and the securing the same on the property of the consolidated company, to the full intent thereof. Besides the preferred stock to the amount of $3,500,000, further preferred stock, in the above form, to the amount of WARREN v. KING. 395 Opinion of the Court. $800,000, was issued on the building of the Louisville branch. The plaintiffs in the cross-bill, as owners of shares of such preferred stock, aver that they, in common with the other preferred stockholders, had and have a lien and security and first claim upon all the property and franchises of the consolidated company which existed at the time of the original issue of such preferred stock, in or about the year 1867, next after and subject only to the indebtedness under the $6,000,000 mortgage, as authorized by said articles of consolidation, as representing and designed to cover and cancel the only indebtedness on either of the consolidated roads which was outstanding at the time of such consolidation, and are entitled to the payment of interest, as stipulated in the certificate, out of such net earnings of the company as may remain after payment of interest on first mortgage bonds, and in priority and preference to the payment of any interest or indebtedness under any mortgage subsequent in date to the first mortgage, that being a mortgage executed in December, 1867, under which bonds to the amount of about $6,800,000 have been issued; under the so-called second mortgage, issued in March, 1871, and sought to be foreclosed in the original suit, $4,000,000 of bonds have been issued. The other mortgage sought to be foreclosed in the original suit is called the Springfield Division mortgage, and was executed in January, 1875, to secure $3,000,000 of bonds. The bill prays for a decree that such preferred stockholders are entitled, as such, to, and have always had, a specific and continuing lien and security and first claim upon and in all the property and franchises of the company, next after, and subject only to, the interest and security therein which is given under the first mortgage of December, 1867, and have been and are entitled to receive 7 per cent, interest upon their shares, out of the net earnings of the company remaining after the payment of interest to the holders of the first mortgage bonds. It also prays, that, in any decree of foreclosure of either of the mortgages so sought to be foreclosed, the rights of the preferred stockholders may be declared to be a lien and security on the property and franchises of the company next after that secured by the first mortgage of December, 1867; 396 OCTOBER TERM, 1882. Opinion of the Court. that, in case of foreclosure of the first mortgage, all surplus, after the satisfaction of claims thereunder, be applied, first, to payment in full, or pro rata, of the par value of their shares, to the preferred stockholders; and that, in case of foreclosure of either the second mortgage or the Springfield Division mortgage, the decree therein shall provide that any sale, in either of such cases, shall be subject to not only the amount due under the first mortgage, but also, and next in order to the amount at par of the preferred stock, with all unpaid interest due thereon, at 7 per cent. The rights of the holders of preferred stock in this case must be determined by the language of the stock certificate. That is exactly the same as the language of the written instruments which preceded the issuing of the certificates. The shares are shares of the capital stock of the company, though shares with different privileges from shares of the common stock. The certificate declares the quality of the preferred stock in two respects—(1) its relation to the property of the company; (2) its relation to the net earnings. As to the property, it is declared that the preferred stock is to be and remain a first claim on the property of the company “after its indebtedness.” But it is stock, and part of the capital stock, with the characteristics of capital stock. One of such characteristics is, that no part of the property of a corporation shall go to reimburse the principal of capital stock until all the debts of the corporation have been paid. It would require the clearest language to admit of the application of a different rule to any capital stock. Section 5 of the statute of Indiana of June 15th, 1852, “ establishing provisions respecting corporations,” 1 Davis’ Statutes, 369, enacted as follows: “ If any part of the capital stock of such company shall be withdrawn and refunded to the stockholders before the payment of all the debts of the company, all the stockholders of such company shall be jointly and severally liable for the payment of such debts.” The railroad law of Indiana, of March 3d, 1865,1 Davis’ Statutes, 728, entitled “An Act to authorize, regulate, and WARREN v. KING. 397 Opinion of the Court. confirm the sale of railroads, to enable purchasers of the same to form corporations and to exercise corporate powers, and to define their rights, powers and privileges, to enable such corporations to purchase and construct connecting and branch roads, and to operate and maintain the same,” under which law this company was reorganized, provided, in section 5, that the corporation should have power to “make preferred stock, make and establish preference in respect to dividends in favor of one or more classes of stock over and above other classes, and secure the same, in such order and manner, and to such extent, as said corporation may deem expedient ; ” and section 20 of the general law of Indiana of May 11th, 1852, providing for the “incorporation of railroad companies,” 1 Davis’ Statutes, 706, provided that a corporation organized under it might issue “ a preferred stock to an amount not exceeding one-half of the amount of its capital, with such priority over the remaining stock of such company, in the payment of dividends, as the directors of such company may determine and shall be approved by a majority of the stockholders.” It would be difficult to say that these statutory provisions allowed any preference in shares of capital stock, except a preference among classes of shares, or any preference of any class of shareholders over creditors. It is not to be supposed that those engaged in reorganizing this company intended to violate the law of Indiana, or the general principles of law applicable to private corporations. Nor is there anything to show that they did. The language of the certificate is entirely satisfied by referring it to a priority in rank of the preferred stock over the common stock, to a first claim of the preferred stock on the property of the corporation, after its indebtedness should be paid, when there should be moneys to be divided among stockholders, a claim which should be first as compared with the claim of other stock. Claims of stockholders, as such, on the corpus of the property of the company in which they are stockholders, do not arise until the debts of the company are paid. Until then the shares confer rights merely as regards profits and voting power. 398 OCTOBER TERM, 1882. Opinion of the Court. It is urged, for the appellants, that the expression “ after its indebtedness ” means, next after the indebtedness then existing or then authorized; that the preferred stock was issued to the holder's of preferred certificates, owners of the property, as a quasi purchase-money mortgage on its sale; and that they intended to preserve their position except as to the new $6,000,000 mortgage, because they authorized that and did not authorize any other. It is very certain that at best the words “ after its indebtedness ” are, by themselves, ambiguous on their face, and are as capable of being applied to future indebtedness as of being limited to then existing indebtedness. Under the general rules applicable to the position of the stockholdersofa corporation, as regards its creditors, a claim of the kind here made should rest on clear and not doubtful language. But the provision which follows, as to the rights of the preferred stock in the net earnings of the company, leaves no doubt as to the meaning of the whole. There is a unity of right in the claim of the preferred stock on the property of the company, and in the title of its holder to receive a share of the net earnings of that property. His proprietorship in those earnings is a right to receive from them so much a year, if earned, before the common stock receives any dividend therefrom, and when the two classes of stock have each received the same specified amount out* of the year’s net earnings, he has the right to share equally in the surplus with the holder of common stock. Thus he can have no income on his stock unless there are net earnings. Those net earnings are what is left after paying current expenses and interest on debt and everything else which the stockholders, preferred- and common, as a body corporate, are liable to pay. The holders of preferred stock have the same relation, by virtue of the certificate, to the corpus of the property, which they have to its net earnings. Their position in regard to both is one inferior to that of all creditors. They are not preferred as to reimbursement of principal, or as to a right to net earnings, over any one but the holders of common stock. The interest to be paid to them is not to be paid absolutely, as to a creditor, but only out of net earnings, the same fund out of which the dividends on common stock are to be WARREN v. KING. 399 Opinion of the Court. paid. Though called “ interest,” it is really a dividend,’ because to be paid on stock and out of net profits. There was no restriction on the creation of future indebtedness, and, necessarily, the net earnings of future business would be ascertained in reference to such future indebtedness and the interest on it; and the words “ its indebtedness,” in the same sentence, naturally mean “ its future indebtedness,” in reference to which the net earnings subsequently treated of are to be ascertained. Creditors may resort to the body of their debtor’s property for interest as well as principal. But these holders of preferred stock are limited, for any income or interest, to the net earnings. There is nothing in the certificate which clothes them with a single attribute of a creditor, while it specially gives them, as stockholders, an equal interest with the common stockholders in the excess of net earnings in each year after paying therefrom 7 per cent, on each share of stock, preferred and common. Whatever position the holders of preferred certificates occupied before they accepted preferred stock, whatever special rights of lien they had, they became corporators, proprietors, shareholders, and abandoned the position of creditors, and took up toward existing and future creditors the same position which every stockholder in a corporation occupies toward existing and future creditors. His chance of gain, by the operations of the corporation, throws on him, as respects creditors, the entire risk of the loss of his share of the capital, which must go to satisfy the creditors in case of misfortune. He cannot be both creditor and debtor, by virtue of his ownership of stock. In this case, all the parties holding trustees’ certificates united to form the new corporation, and converted themselves into stockholders in it. It seems very clear, that, if the trustees, representing the holders of trustees’ certificates, had gone on and operated the road for them, not organizing a new company, any debts contracted by the trustees in the business would have had priority over the claims of the holders of such certificates. So, in becoming stockholders in the new company, with the right to vote as to its management and to share in its earnings, they 400 OCTOBER TERM, 1882. Opinion, of the Court. must have intended to allow, through the corporation, a priority of like debts over their claims as stockholders. The same principles must govern the present case which were applied by this court in St. John n. Erie Railway Company, 22 Wall. 136, where creditors took preferred stock. It was held that they ceased to be creditors and could be regarded only as stockholders, with a chance for dividends out of net earnings and the power of voting, and a priority over holders of common stock, but not a priority over debts subsequently contracted. Much stress is laid on the averment in the cross-bill, that the existence of the preferred stock and of the certificates therefor and of their contents was known to the trustees under the subsequent mortgages before those mortgages were made, and to the bondholders under those mortgages before they became such; and it is urged that the assent of the preferred stockholders to the creation of the subsequent mortgages should have been obtained. The answer to this view is, that the preferred stockholders had no rights which made their assent necessary to the validity, as against them, of the mortgages in question; and that, represented as they were by the corporation and its directors, the act of making the mortgages was a sufficient assent of the preferred stockholders, if assent were necessary, there being no allegation in the cross-bill inconsistent with the fact, that the issuing of the mortgages was known to and participated in and sanctioned by those who were holders of the preferred stock when the mortgages were created. As to the claim that the appellants, if they have no priority over the second mortgage, have, at all events, as against the company, a lien next after the second mortgage, on the property not covered by the Springfield Division mortgage, and have, in any aspect of the case, a valid claim on the surplus assets of the company, after paying its debts, superior to the claim of the common stockholders, it is sufficient to say, that we do not deem it proper that those questions should be disposed of on a demurrer to this cross-bill, as they can be raised and decided under the answer which these appellants have filed as defendants in the consolidated suit. The decree of the circuit court is affirmed. DEVOE MANUFACTURING COMPANY. 401 Argument for Petitioner. DEVOE MANUFACTURING COMPANY, Petitioner. ORIGINAL. Decided May 7th, 1883. Jurisdiction of District Courts—New Jersey—New York—State Boundaries. 1. The District Court of the United States for the District of New Jersey has jurisdiction of a suit in admiralty, in personam, against a New York corporation, where it acquires such jurisdiction by the seizure, under process of attachment, of a vessel belonging to such corporation, when such vessel is afloat in the Kill van Kull, between Staten Island and New Jersey, at the end of the dock at Bayonne, New Jersey, at a place at least 300 feet below high-water mark, and nearly the same distance below low-water mark, and is fastened to said dock by means of a line running from the vessel and attached to spiles on the dock. 2. A vessel so situated is within the territorial limits of the State of New Jersey and of the District of New Jersey, and is not within the territorial limits of the State of New York, or of the Eastern District of New York. 3. The subject-matter of the dispute as to boundary between New York and New Jersey explained, and the settlement as to the same made by the agreement of September 16th, 1833, between the two States, as set forth in, and consented to by, the act of Congress of June 28th, 1834 (chap. 126, 4 Stat. 708), interpreted. 4. When Congress enacts that a judicial district shall consist of a State, the boundaries of the district vary afterwards as those of the State vary. Petition for writ of prohibition to the District Court of the United States for the District of New Jersey, proceeding as a court of admiralty. The sole question at issue was whether that court had jurisdiction in admiralty over a vessel afloat but fastened by a hawser to the end of a dock in the Kill van Kull, between Staten Island and New Jersey, at a place about three hundred feet distant in the stream from the line of ordinary low-water mark. Henry J. Scudder for petitioner.—I. The office of the wnt of prohibition is to prevent an unlawful assumption of jurisdiction. The writ lies to a court of admiralty only when that courtis acting in excess of its jurisdiction. Ex parte Gordon, 104 U. S. 515; Ex parte Easton, 95 U. S. 68.—II. The District vol. cviii—26 402 OCTOBER TERM, 1882. Argument for Petitioner. Court of New Jersey is proceeding here as a court of admiralty, but it gains jurisdiction of the respondent only by excess or abuse of power in .attaching property outside the limits of its district and forcing respondent to appear in order to preserve its property. The respondent or petitioner here has no redress by appeal. If it appear, in order to try the merits of the action, it confesses jurisdiction; appearing specially to deny jurisdiction only, it is met by an order denying its motion for relief from the cognizance of the court, and has no appeal from that order. Toland v. Sprague, 12 Pet. 300.—III. In subdividing the State into districts by the Judiciary Act of 1789, the legislature intended to prescribe distinct and understood boundaries to each district. To give to the- act any fluctuating power would introduce conflict and confusion where certainty was essential.—IV. In constituting the States of New Jersey and New York respectively districts, the legislature designed to conform these districts to then understood and recognized jurisdictional limits of the two States. Congress was sitting in 1789 in the city of New York, and possessed ample information as to what lines bounded .these State jurisdictions when the districts were created. It cannot be urged that the “ State of New York ” was adopted in a loose sense, as, in popular expression, for a district, such district to be subject to the contingent result of a dispute between that State and New Jersey, in respect to boundary ; such a course would have fallen short of the purpose of ordinary legislation, and cannot be presumed to have existed in a species of legislation that above all others addresses itself to precision. In the formation of districts, Congress was dealing with jurisdictional subjects, and these always involve clear definitions. If any matter may be left to .contingent explanations or events, jurisdiction cannot; that must be “ ascertained,” and certain. In using the “ State of New York ” as a term, the legislature had considered and determined upon exact lines as containing that State. True, when the lines may have fallen upon a sea shore or a river subject to ebb ancl flow of tide, they might not be so geometrically accurate as upon courses and distances, but the logic of law would undergo no violation in that respect. Low- DEVOE MANUFACTURING COMPANY. 403 Argument for Petitioner. water mark is a certain limit, and if the State of New York had that as one of its boundaries, it sufficed and answered every demand of preciseness.—V. The jurisdiction of the State of New York in 1789, extended to low-water mark along the Jersey shore, including the Kill van Kull, and the district of New York was co-extensive with such jurisdictional limits of the State. It seems clear that in the conveyance made by the Duke of York of the territory of East Jersey, he was governed by the contemporaneous understanding that the Kill van Kull was a part of the Hudson River, and that by such conveyance he limited the territory conveyed to the western side of said waters or the shore thereof. The grant by James must be treated as a royal grant, and nothing held by intendment against it or in favor of the grantee. Martin v. Waddell, 16 Pet. 367. Hudson River being thus understood to embrace Kill van Kull, and entirely excluded from the conveyances by James, remained the property of the latter, and so of the province of New York, and by conquest through the Revolution, of the State of New York. None of the States enlarged its territorial limits over those in its. provincial character by the mere operation of independence from the sovereignty of the mother country, and the rule applied to New Jersey by the United States Circuit Court in Corfield v. Coryell, as to the Delaware bay and river, is applicable to the eastern shore of that State upon the waters of. the Kill van Kull and Hudson River. Corfieldv. Coryell, 4 Wash. C. C. R. 371; Handly1 s LesseeN. Anthony, 5 Wheat. 374. The limits of New Jersey as a province were recognized by the authorities of that State as the shore or low-water mark of the waters of the Hudson and New York Bay so-called, inclusive of the Kill van Kull, and continued so to be recognized until the beginning of the present century. Opinion of Judge Elmer, State n. Babcock, 1 Vroom, 29, 32.— VI. The jurisdiction of the State of New York, therefore, in 1789, covered the place of the seizure under consideration here, and the District of New York equally covered it, and unless some change has been effected by national legislation in the extent of that district it still embraces it, and the District Court of New Jersey has no jurisdiction over it. 404 OCTOBER TERM, 1882. Opinion of the Court. Jfk Franklin A. Wilcooe, opposing. Mr. Justice Blatchford delivered the opinion of the court. The question involved in this case is as to the territorial jurisdiction of the District Court of the United States for the District of New Jersey. In April, 1882, a libel in admiralty, in personam, for damages growing out of a collision, was filed in that court against the Devoe Manufacturing Company, a New York corporation. In October, 1882, process was issued by the court to the marshal, commanding him to cite the respondent if it should be found in the district, and, if it could not be there found, to attach its goods and chattels within the district. On this process the marshal seized a tug belonging to the corporation and made return that he had attached the tug, as its property. At the time of the seizure the tug was afloat in the Kill van Kull, between Staten Island and New Jersey, at the end of a dock at Bayonne, New Jersey, at a place at least 300 feet below high-water mark and nearly the same distance below low-water mark, and about half a mile from the entrance of the Kill into the bay of New York, and was fastened to the dock by means of a line or fastening running from the tug and attached to spiles on the dock, and was lying close up to the dock. The respondent, insisting that the tug, when seized, was within the exclusive jurisdiction of the Eastern District of New York, and not within the jurisdiction of the District of New Jersey, applied to the court to set aside the service of the process. The court denied the application, holding that the tug, being, when seized, fastened to a wharf or pier on the western side of the Kill van Kull, was within the exclusive jurisdiction of the district of New Jersey. The respondent now applies to this court to issue a writ of prohibition to the district court, restraining it from exercising the jurisdiction so asserted. By section 2 of the act of September 24th, 1789, “ to establish the judicial courts of the United States,” chap. 20,1 Stat. 73, the United States were divided “into thirteen districts, to be limited and called as follows: . . . one to consist of the State of New York, and to be called New York district; one DEVOE MANUFACTURING COMPANY. 405 Opinion of the Court. to consist of the State of New Jersey, and to be called New Jersey district,” and, by section 3, a court called a district court was created in each of said districts, and, by section 9, exclusive original cognizance was given to such district courts, of all civil causes of admiralty and maritime jurisdiction, within their respective districts. By these provisions the territorial limits of the respective States of New York and New Jersey were made the territorial limits of the respective judicial districts of New York and New Jersey. By section 1 of the act of April 9th, 1814, chap. 49,3 Stat. 120, it was enacted that the State of New York “ shall be and the same is hereby divided into two districts, in manner following, to wit: the counties of Rensselaer, Albany, Schenectady, Schoharie, and Delaware, together with all that part of the said State lying south of the said above mentioned counties, shall compose one district, to be called the Southern District of New York; and all the remaining part of the said State shall compose another district, to be called the Northern District of New York.” By virtue of this act all that part of the State of New York which was bounded on the line between New York and New Jersey fell within the Southern District of New York. The boundary line between the States still formed the boundary line of jurisdiction between the districts. By section 3 of the act of April 3d, 1818, chap. 32, 3 Stat. 414, the counties of Albany, Rensselaer, Schenectady, Schoharie, and Delaware were transferred from the Southern District of New York to the Northern District of New York, but the boundaries of the Southern District of New York were otherwise not altered. A dispute existed for a long time between the States of New York and New Jersey respecting the boundary line between them as to property and jurisdiction. The history and circumstances of this dispute, some particulars of which are to be found in the reports of the cases of State v. Babcock, 1 Vroom, 29; People n. Central Railroad Company of New Jersey, 42 N. Y. 283; and Hall v. Devoe Manufacturing Company, 14 Fed. Bep. 183, are not material to the determination of this case, in the view we take of it, any further than to show what was the 406 OCTOBER TERM, 1882. Opinion of the Court. subject-matter of the dispute. For the purpose of having it settled, the State of New Jersey filed a bill in equity in this court against the State of New York, in February, 1829. That bill sets forth the patent of March 12th, 1664, from Charles the Second to the Duke of York; the conveyance of léase and release by the Duke of York, of June 24th, 1664, to Lord Berkeley and Sir George Carteret, of land constituting the State of , New Jersey; the division of the land, by various conveyances, into East New Jersey and West New Jersey, its settlement and the institution of proprietary governments therein, which continued until May, 1702, when the proprietors surrendered their right of government to Queen Anne; and the union of the two divisions into one province and government, under the Crown of England, which continued until July 4th, 1776. The bill sets forth that the Hudson River was, by the said grants, the dividing boundary between New Jersey and New York, and New Jersey was bounded on her eastern shores by the waters formed by the confluence of the Hudson and East rivers and also by the waters of Staten Island Sound or Kill van Kull or Arthur Kull, which sound is distinct from Hudson River or bay ; that, soon after the grant to Berkeley and Carteret, the inhabitants of East New Jersey proceeded to use the waters of the Hudson and sound adjoining the New Jersey shore, for the purposes of fishing, navigation, wharfing and other purposes, and erected docks and piers at Jersey City and Hoboken, and on the shores of the Hudson, and far beyond low-water mark, without interruption from the inhabitants or public authorities of New York, and the citizens of New Jersey had always exercised full and absolute right and enjoyment over the river Hudson and the other adjoining waters to the midway or channel thereof, and also a common right of navigation and use over the whole of the river and dividing waters in common with the State of New York; that, by the fair construction of the said grants and by the principles of public law, New Jersey is entitled to the exclusive jurisdiction and property of and over the waters of the Hudson River from the 41st degree of latitude to the bay of New York, to the filum aquae, or middle of the river, and to the midway or channel DEVOE MANUFACTURING COMPANY. 407 Opinion of the Court. of the bay of New York and the whole of Staten Island Sound, together with the land covered by the water of the river, bay and sound, in the like extent; that, while the said two States were colonies, New York became wrongfully possessed of Staten Island and the other small islands in the dividing waters between the two States; that the possession thus acquired by New York had been since acquiesced in, New York insisting that her possession of said islands had established her title; that New York has no other pretence of title to said islands but adverse possession; that, as such possession has been uniformly confined in its exercise to the fast land thereof, the title of New Jersey to the whole waters of the Staten Island Sound remains clear and absolute in New Jersey, according to the terms of said grants; that, though the people of the State of New York formerly recognized the rights and jurisdiction of New Jersey as so set forth, they had lately asserted an absolute and exclusive right of property, jurisdiction and sovereignty over all the waters of the Hudson River and bay and Staten Island Sound, and that quite up to high-water mark on the New Jersey shore, and, by late public statutes, had extended the west lines of her counties lying opposite to New Jersey, on the east side of the Hudson River, to the west bank of the river, and had enforced the said unjust pretension by enacting that penalties should be imposed on any person who should execute, or attempt to execute, civil or criminal process on any part of the dividing waters by virtue of any other authority than her own laws; that, under color of said statutes, her officers had occasionally executed process on the west side of Hudson River and on the wharves so erected on the west bank of the river, within the territory and jurisdiction of New Jersey; that New York pretends that all that part of said tract of country granted to the Duke of York, and which he did not convey to Berkeley and Carteret, remained in him, that no part of Hudson River was granted to Berkeley and Carteret, and that, when New York became an independent State, all the said domain of the Duke of York, with the Hudson River and the other dividing waters, vested in full propriety and sovereignty in New York, and that New York has always 408 OCTOBER TERM, 1882. Opinion of the Court. claimed and possessed the same accordingly; that New Jersey insists, that, in the grants to Berkeley and Carteret, the equal use and property of the river Hudson and sound is expressly and in terms conveyed to them, and, accordingly, Berkeley and Carteret and their grantees and assigns before the Revolution, and New Jersey, as one of the United States, since the Revolution, had always claimed, exercised, occupied and enjoyed right, title and jurisdiction, as well over the territory as the waters of Hudson River and bay, equal in extent to those used and exercised by New York; that the citizens of New Jersey, both before and since the Revolution, under the authority, jurisdiction and control, as well of the colonial as of the State government of New Jersey, had, ever since the first settlement of the colony, used, occupied and enjoyed the territory and waters of the Hudson River and bay and Staten Island Sound, and all other dividing waters between the said States, by building and constructing docks and wharves thereon extending far below low-water mark on the westerly shores thereof, by locating and appropriating several fisheries therein, and exercising the rights of common fishery in other parts thereof, by locating and appropriating oyster grounds therein and planting them with oysters under rights derived from New Jersey, and by navigating the same with her ships and vessels, which would, at pleasure, lie at anchor in the Hudson River, bay and sound, and also by the docks and wharves so constructed under the authority and jurisdiction of New Jersey, without interruption, and by various other acts and uses; that, even though said grants may not have conveyed any right of property in said river, yet, inasmuch as no part of said river was ever granted to the colony of New York, it remained in the Duke of York until his accession to the throne of England, in 1685, when said river became re-annexed to the Crown by his accession thereto, and remained a royal river until the American Revolution, and, upon the independence of New York and New Jersey being achieved, this public navigable river became the common boundary of the two States, with a right of property and jurisdiction in each to the midway thereof; that, at the time of the said grants to the Duke of York and from him to Berkeley and DEVOE MANUFACTURING COMPANY. 409 Opinion of the Court. Carteret, and for many years after, the general understanding of all parties interested in the subject-matter of those grants was, that no part of the waters of the Hudson River belonged to New York, but said river, so far as respected the colony of New York, her counties and the city of New York especially, was the mere natural boundary of the said colony, in which no right of property existed or could exist; that all the ancient grants made by the Duke of York to individuals, while he remained a duke and after he became the king, or by the colonial government established by him in the State of New York, are limited to low-water mark on the east side of the Hudson River ; that the first charter to the city of New York, made in 1686, gives the city boundary and assigns to it all Manhattan Island as far as low-water mark; that the colonial legislature of New York, by an act passed in 1691, revised the previous act or ordinance laying off several counties in New York, and the county boundaries fixed by the said Revised Statutes were prescribed and based upon the principle that New York had no claim to the waters on the New Jersey side of the Hudson, the city and county of New York and the counties of Westchester and Dutchess being expressly located on the east bank of the Hudson; and that New Jersey had uniformly resisted and opposed said encroachments and pretensions of New York from their first existence. The bill prays that the eastern boundary fine between New Jersey and New York may be ascertained and established; that the rights of property, jurisdiction and sovereignty of New Jersey may be confirmed to the filum aquae, or middle of Hudson River, from the 41st degree of north latitude on said river through the whole line of the eastern shore of New Jersey, as far as said river washes and bounds New Jersey, down to the bay of New York and to the channel or midway of the said bay, and to all the waters and the land they cover lying between the New Jersey shore and Staten Island, and all other waters washing the southern shores of New Jersey within and above the Narrows; that New Jersey may be quieted in the full and free enjoyment of her property, jurisdiction and sovereignty in said waters; and that the right, title, jurisdiction and sovereignty 410 OCTOBER TERM, 1882. Opinion of the Court. of New Jersey in and over the same, as part of her public domain, may be confirmed and established by a decree of this court. The averments made by New Jersey in said bill show what claims she made, and what her understanding was as to the claims made by New York, and as to the assertion of claims theretofore by the respective States. It is alleged by the counsel for the applicant that in early colonial times the waters surrounding Staten Island were regarded as the waters of the Hudson River, and Staten Island was regarded as lying in the waters of the Hudson River; that, in the grant to Berkeley and Carteret, New Jersey was bounded on the east, partly by the main sea and partly by the Hudson River; that the same boundary was contained in the subsequent grant of East Jersey to Carteret; that, in 1682 and again in 1709, the legislature of East Jersey, by statute, bounded Bergen County, the site of the present dispute, on the bay and the Hudson River; that such legislation of New Jersey as to the boundary of Bergen County remained unchanged until 1807; that the Montgomerie charter to the city of New York, in 1730, expressed the jurisdiction of that city as extending “ to low-water mark on the west side of the North River, or so far as the limits of our said province extend there ; ” and that the boundaries of New York were asserted by it, in its Revised Statutes of 1830, to embrace the waters of Kill van Kull to low-water mark on the New Jersey side. The matters in dispute between the two States as to boundary being those thus set forth, the dispute was brought to a close by an agreement or compact entered into on the 16th of September, 1833, between commissioners appointed by the two States, which agreement was confirmed by the legislatures of the two States respectively. The consent of the Congress of the United States was given to said agreement, “ and to each and every part and article thereof,” by an act approved June 28th, 1834, ch. 126, 4 Stat. 708. That act sets forth the agreement at length. The first five articles of it, which are all that are important here, are as follows: “ Article First. The boundary line between the two States DEVOE MANUFACTURING COMPANY. 411 Opinion of the Court. of New York and New Jersey, from a point in the middle of Hudson River, opposite the point on the west shore thereof, in the forty-first degree of north latitude, as heretofore ascertained and marked, to the main sea, shall be the middle of the said river, of the bay of New York, of the waters between Staten Island and New Jersey, and of Raritan Bay, to the main sea ; except as hereinafter otherwise particularly mentioned. “Article Second. The State of New York shall retain its present jurisdiction of and over Bedlow’s and Ellis’s Islands ; and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that State. “ Article Third. The State of New York shall have and enjoy exclusive jurisdiction of and over all the waters of the bay of New York ; and of and over all the waters of Hudson River lying west of Manhattan Island and to the south of the mouth of Spuytenduyvel creek ; and of and over the lands covered by the said waters to the low-water mark on the westerly or New Jersey side thereof ; subject to the following rights of property and of jurisdiction of the State of New Jersey, that is to say : “ 1. The State of New Jersey shall have the exclusive right of property in and to the land under water lying west of the middle of the bay of New York, and west of the middle of that part of the Hudson River which lies between Manhattan Island and New Jersey. “ 2. The State of New Jersey shall have the exclusive jurisdiction of and over the wharves, docks and improvements, made and to be made on the shore of the said State ; and of and over all vessels aground on said shore, or fastened to any such wharf or dock ; except that the said vessels shall be subject to the quarantine or health laws, and laws in relation to passengers, of the State of New York, which now exist or which may hereafter be passed. “3. The State of New Jersey shall have the exclusive right of regulating the fisheries on the westerly side of the middle of the said waters, Provided, That the navigation be not obstructed or hindered. “Article Fourth. The State of New York shall have exclusive jurisdiction of and over the waters of the Kill van Kull between Staten Island and New Jersey to the westernmost end 412 OCTOBER TERM, 1882. Opinion of the Court. of Shooter’s Island in respect to such quarantine laws, and laws relating to passengers, as now exist or may hereafter be passed under the authority of that State, and for executing the same; and the said State shall also have exclusive jurisdiction, for the like purposes, of and over the waters of the sound from the westernmost end of Shooter’s Island to Woodbridge creek, as to all vessels bound to any port in the said State of New York. “Article Fifth. The State of New Jersey shall have and enjoy exclusive jurisdiction of and over all the waters of the sound between Staten Island and New Jersey lying south of Woodbridge creek, and of and over all the waters of Raritan Bay lying westward of a line drawn from the lighthouse at Prince’s Bay to the mouth of Mattavan creek ; subject to the following rights of property and of jurisdiction of the State of New York, that is to say : “ 1. The State of New York shall have the exclusive right of property in and to the land under water lying between the middle of the said waters and Staten Island. “ 2. The State of New York shall have the exclusive jurisdiction of and over the wharves, docks and improvements made and to be made on the shore of Staten Island, and of and over all vessels aground on said shore, or fastened to any such wharf or dock; except that the said vessels shall be subject to the quarantine or health laws, and laws in relation to passengers, of the State of New Jersey, which now exist or which may hereafter be passed. “ 3. The State of New York shall have the exclusive right of regulating the fisheries between the shore of Staten Island and the middle of the said waters : Provided, That the navigation of the said waters be not obstructed or hindered.” The act of June 28th, 1834, provides that nothing contained in said agreement “shall be construed to impair or in any manner affect, any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement.” It is apparent, from the terms of the various provisions of the agreement, that it is an agreement settling the territorial limits and jurisdiction of the two States in respect to the waters between them, from a point in the middle of the Hudson River, DEVOE MANUFACTURING COMPANY. 413 Opinion of the Court. in the 41st degree of north latitude, to the sea. The boundary line is declared to be the middle of the said river, of the bay of New York, of the waters between Staten Island and New Jersey, and of Raritan Bay, except as afterwards otherwise particularly mentioned. What may be the effect of the exception, whether it affects the boundary line itself, or only amounts to a concession of extraterritorial jurisdiction to the one State and the other, beyond the territorial boundary, is not necessary to be decided in the present case. For, in either view, it is clear that the waters in which the tug was lying when she was seized were in the boundaries of the State of New Jersey. The only jurisdiction given to the State of New York, beyond the boundary line specified in Article First, over the waters of the Kill van Kull, is that specified in Article Fourth, by which it is declared that “the State of New York shall have exclusive jurisdiction of and ovep the waters of the Kill van Kull between Staten Island and New Jersey to the westernmost end of Shooter’s Island, in respect to such quarantine laws, and laws relating to passengers, as now exist or may hereafter be passed under the authority of that State, and for executing the same.” The rest of that article relates to Staten Island sound west of Shooter’s Island, and has no reference to this case. The jurisdiction thus conceded to New York is clearly a limited one, and cannot, in any view, be regarded as altering the general boundary line; and as the tug, when seized, was on the New Jersey side of that line, she was within the State of New Jersey, not because she was fastened to a dock on the shore of New Jersey, but because she was within that part of the waters between Staten Island and New Jersey which, by Article First of the agreement, is set apart to New Jersey. Being thus within the State of New Jersey, was the tug within the District of New Jersey and within the territorial jurisdiction of the District Court of the United States for the District of New Jersey? We are all of the opinion that, when the act of Congress of 1789 declared that the New Jersey district should consist of the State of New Jersey, it intended that any territory, land or water, which should at any time, 414 OCTOBER TERM, 1882. Opinion of the Court. with the express assent of Congress, form part of that State should form part of the District of New Jersey. By sections 530 and 531 of the Revised Statutes, the State of New Jersey constitutes a judicial district. The intention is, that the boundary of the district shall be coterminous with the boundary of the State. The same thing is true as to the Southern District of New York, and as to the district across the water at the locus in quo, which is the Eastern District of New York. That district was created by the act of February 25th, 1865, chap. 54, 13 Stat. 438, to consist of “ the counties of Kings, Queens, Suffolk and Richmond, in the State of New York, with the waters thereof.” By section 541 of the Revised Statutes, the Northern District of New York is defined as including the counties of Albany, Rensselaer, Schoharie, and Delaware, with all the counties north [and west] of them; the Eastern District as including “ the counties of Richmond, Kings, Queens, and Suffolk, with the waters thereof; ” and the Southern District as including “ the residue of said State, with the waters thereof.” It is consonant with the convenience and habits of the people, that, when any place is within the limits and jurisdiction of a State, it should not be joined to the whole or a part of another State, as to the jurisdiction of the courts of the federal government ; and it is not to be presumed, in view of the terms of the statutes on the subject, and of the necessity for the consent of Congress to all compacts between the States, that such separation can be intended unless clearly expressed. Where Congress declares that such a judicial district shall consist of such a State, and afterwards the boundary of the State is so lawfully altered as to include or exclude a particular piece of territory, it is a reasonable construction to say, that the judicial district shall, ipso facto, without further legislation by Congress, expand or contract accordingly. When the State of Massachusetts ceded to the State of New York, in 1853, its sovereignty and jurisdiction over the district of Boston Corner, and the latter State accepted the same, and Congress consented to such cession and annexation, Act of January 3d, 1855, chap. 20, 10 Stat. 602, there was no special transfer by Congress of the annexed territory from the District of Massachusetts to the Southern District DEVOE MANUFACTURING COMPANY. 415 Opinion of the Court. of New York, but it fell within that district by becoming a part of Columbia County, in the State of New York. The provision in the act of June 28th, 1834, that nothing in the agreement between New York and New Jersey shall impair “any right of jurisdiction of the United States in and over the islands or waters which form the subject of the said agreement,” is well satisfied without construing it as applying to the then existing jurisdiction of any particular court of the United States. Article Second of the agreement provides that “ the State of New York shall retain its present jurisdiction of and over Bedlow’s and Ellis’s Islands; and shall also retain exclusive jurisdiction of and over the other islands lying in the waters above mentioned and now under the jurisdiction of that State.” Other articles of the agreement provide for the exclusive jurisdiction of New York or New Jersey over specified waters. In giving consent to the agreement, and “ each and every part and article thereof,” Congress was consenting, apparently, as against any rights of jurisdiction which the United States then had, to the exclusive jurisdictions of New York and New Jersey, respectively, over the islands and waters referred to. Hence, for abundant caution, the clause in question was added. New York had, by an act passed February 15th, 1800, 1 R. L. 189, ceded to the United States jurisdiction over “ all that certain island called Bedlow’s Island, bounded on all sides by the waters of the Hudson River, all that certain island called Oyster Island ” (known afterwards and now as Ellis’s Island), “ bounded on all sides by the waters of the Hudson River,” and also Governor’s Island, reserving to the State the right to serve and execute, on those islands respectively, civil or criminal process issuing under the authority of the State. Reference is made to Article Six of the amendments of the Constitution, which provides that, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; ” and it is suggested that the boundaries of a district could not be ascertained by law, if they were left to change with such local changes as coterminous 416 OCTOBER TERM, 1882. Opinion of the Court. States might agree upon with each other as to their respective boundaries and limits. Article Six was one of ten articles proposed by the first Congress, as amendments to the Constitution,on the 25th of September, 1789, the day after the Judiciary Act was approved, providing that the New York district should consist of the State of New York, and the New Jersey district of the State of New Jersey, and defining and ascertaining by law all the other districts which it established, solely by naming the several States as districts. There were two disputes as to boundary existing at that time between Massachusetts and Rhode Island, both of them running back to colonial times, one respecting the northern boundary of Rhode Island, and the other respecting the eastern boundary of Rhode Island. The particulars of the first dispute appear in the record of a suit in equity brought in this court by Rhode Island against Massachusetts, in 1832, 12 Pet., 657, to settle such northern boundary. In December, 1845, by a decree of this court, the bill in the suit was dismissed on the merits, and the northern boundary of Rhode Island was established on the fine claimed by Massachusetts. In 1854 Massachusetts filed a bill in equity in this court against Rhode Island, to settle said eastern boundary. A conventional boundary fine, different from that claimed by either State, was agreed upon, and sanctioned by Congress, by an act approved February 9th, 1859, chap. 28,11 Stat. 382, and established by a decree of this court made December 16th, 1861, to take effect March 1st, 1862. The act of Congress declared that the new line should “ be taken and deemed to be, for all purposes affecting the jurisdiction of the United States, or of any department of the government thereof,” the true line of boundary between Massachusetts and Rhode Island. In the latter case, as in the present one, the boundary between the two disputing,States was settled on a line different from that claimed by either. The Judiciary Act defined the State as the district, not the State as either party to the dispute claimed it to be; and the effect of the change of State boundary in the present case, on the limits of judicial districts, must be held to be as potent as that in the case of Massachusetts and Rhode Island, notwithstanding the affirmative provision in the act in DEVOE MANUFACTURING COMPANY. 417 Opinion of the Court. the latter case, as to the jurisdiction of the United States and of the departments of its government. Congress has always left judicial districts to be' confined within State limits. Of course, the district, as a place of trial, must be ascertained by law before the crime is committed, and a person charged with a crime cannot be tried for it in a district which did not include, when the crime was committed, the place where it was committed. Whether a change in the boundary of a State, and thus of a district, after the commission of a crime, and before a trial for it, would have the effect of preventing a trial in any district, is a question which must be decided when it shall arise. The mode adopted by Congress of ascertaining districts by law, in such manner that their boundaries shall change as the boundaries of the States change, is one at least sufficient and convenient for practical purposes in all cases except where a person charged with crime and placed on trial in a particular district, may be able to establish that his rights under Article 6 of the amendments of the Constitution are being violated. Views not in harmony with those above set forth were expressed by the District Court for the Southern District of New York in the case of The United States v. The Ship Julia Lawrence, and the case of The L. IF. Eaton, 9 Benedict, 289. The former case was decided by Judge Betts, in 1860, and from that time forward the District Court for the Southern District of New York exercised its jurisdiction on the view that that jurisdiction was not to be governed by the provisions of the agreement between New York and New Jersey. Our attention has not been called to any case before the present one where a federal court in New Jersey has passed on the question of the limits of the District of New Jersey, as affected by that agreement. There being thus a conflict of interpretation between the judicial authorities of the two districts as to the question of the territorial jurisdiction of those districts, it is important that the effect of the agreement between the two States on that jurisdiction should be clearly defined. This we have endeavored to do. The result is, that The application for the writ of prohibition must be denied. vol. cvm—27 418 OCTOBER TERM, 1882. Statement of Facts. POST v. PEARSON. IN ERROR TO THE SUPREME COURT OF THE TERRITORY OF DAKOTA. Decided May 7th, 1883. Contract—Demurrer—Pleading. An agreement in writing, between “ W., superintendent of the Keets Mining Company, parties of the first part, and P., party of the second part,” by which “ the said parties of the first part ” agree to deliver at P.’s mill ore from the Keets mine (owned by the company) to be crushed and milled by P.; and signed by “ W., Supt. Keets Mining Co.,” and by P.; is the contract of the company. An order sustaining a defendant’s demurrer, and giving the plaintiff leave to amend, does not preclude the plaintiff from renewing, or the court from entertaining, the same question of law at the subsequent trial on an amended declaration. This was an action brought in an inferior court of Dakota Territory by John B. Pearson against Alvin W. Whitney and Morton E. Post, copartners under the name of the Keets Mining Company. Annexed to the complaint was a copy of a contract under seal, entitled “Memorandum of an agreement made and entered into this 16th day of July, 1877, at Central City, Dar kota, by and between A. W. Whitney, superintendent of the Keets Mining Company, parties of the first part, and J. B. Pearson, party of the second part; ” and by which “ the said parties of the first part ” agree to deliver at Pearson’s mill in Central City gold-bearing ore from the Keets mine from time to time, in quantities sufficient to constantly supply the working capacity of the mill of about thirty tons daily; and also agree to pay the sum of nine dollars for each ton crushed and milled; and Pearson agrees to run his mill constantly upon that ore for a term of ninety days from the date of the contract ; and which is signed and sealed as follows: “A. W. Whitney, [Seal.] “ Sup. Keets Mining Co. “John B. Pearson. [Seal.]” 419 POST v. PEARSON. Statement of Facts. The complaint set forth the terms of the contract, and alleged the plaintiff’s performance and readiness to perform, and the defendants’ neglect and refusal to deliver ore as agreed, or to pay for crushing and milling what they did deliver. The defendant Post demurred to the complaint, because he was not shown to be a party to the contract sued on, and because sufficient facts were not stated to constitute a cause of action against him. The inferior court sustained the demurrer, and gave the plaintiff leave to amend his complaint. The plaintiff then filed an amended complaint, hot alleging the contract to have been in writing, but setting forth its terms, and alleging the other facts substantially as in the original complaint. The defendants answered, Post denying all the allegations of the amended complaint, and Whitney admitting the making of the contract, and denying the other allegations. At the trial, the written contract was admitted in evidence, without objection. It appeared that it was made by the parties thereto; and that Whitney, in making it, acted in behalf and for the benefit of the Keets Mining Company, of which he Was the superintendent, and that he was understood by the plaintiff so to act; and that Whitney, as such superintendent, afterwards broke the contract, to the damage of the plaintiff. The plaintiff, against the objection of Post, and for the purpose of showing that Post was one of the real parties in interest and a participant in the results of the contract, and that Whitney acted merely as the agent of himself and Post as principals, was permitted to introduce oral evidence that Post was an owner of the Keets Mine, and a copartner with Whitney, under the name of the Keets Mining Company, in the business of working the. mine and having ore from it crushed, and as such copartner received a large portion of the proceeds of the contract, knowing whence they came. The court also declined to rule and instruct the jury, as Post requested, that the order sustaining his demurrer to the original complaint prevented a recovery against him in this action. Post alleged exceptions to both rulings, and the jury returned a verdict for the plaintiff, upon which judgment was rendered. 420 OCTOBER TERM, 1882. Argument for Plaintiff in Error. On appeal, that judgment was affirmed by the Supreme Court of the Territory. See 2 Dakota, 220. Post sued out this writ of error. Jfr. B. T. Merrick and Mr. M. F. Morris for the plaintiff in error.—I. The liability of Post can be sustained only upon proof that Whitney in the execution of the contract was authorized to bind him; and there was no such proof. Mr. Justice Story, in his Treatise on Agency, lays down the law upon this subject, as follows : “ In order to bind the principal and to make it his contract, the instrument must purport on its face to be the contract of the principal; and his name must be inserted in it and signed to it, and not merely the name of the agent, even though the latter be described as the agent in the instrument ; or at least the terms of the instrument should clearly show that the principal is intended to be positively bound thereby, and that the agent acts plainly as his agent in executing it.” Story on Agency, sec. 147; Story on Contracts, sec. 222; Stackpole v. Arnold, 11 Mass. 27,29; Bedford, &c.,y. Covell, 8 Met. 442. Nor does it make any difference that the person signing the contract signs as “agent,” or with any other descriptio personae j it is still his own contract, and not that of a principal whom he may have intended to bind. This is held universally by all the authorities. Stone n. Wood, 7 Cow. 453; Bank v. Monteath, 1 Den. 402; Seaver v. Colm, 10 Cush. 324; Jones v. Littledale, 6 A. & E. 486; Magee v. Atkinson, 2 M. & W. 440; Higgins v. Senior, 8 M. & W. 834; Appleton v. Binks, 5 East, 148; Duvall v. Craig, 2 Wheat. 45 ; Tippets v. Walker, 4 Mass. 595; Forster n. Fuller, 6 Mass. 58; White v. Skinner, 13 Johns. 307; ElwellN. Shaw, 16 Mass. 42; Smith v. Morse, 6 Walk 76, 83. It does not alter the fact that Whitney and Post were partners. One partner cannot bind his copartner by an instrument under seal, at least when the partners are not present and no assent is shown.—II. The second ground of complaint on behalf of the plaintiff in error is, that the matter in controversy between him and the defendant in error had been adjudicated in the territorial district court by the decision upon the demurrer interposed by Post to POST v. PEARSON. " 421 Opinion of the Court. Pearson’s first complaint, that this demurrer went to the merits of the case; and that the judgment upon it should have been allowed as a bar to further proceedings upon the trial of the issue raised by the amended complaint. It matters not now whether the demurrer was good or bad, or whether the judgment upon it was right or wrong. There was judgment upon it; and the plaintiff in the suit acquiesced in that judgment; and the judgment became final. And the question now is, whether that judgment is not a bar to any further proceedings intended to enforce the contract involved in it. The claim of the plaintiff in error is that the court below erred in refusing to rule out that contract and to give effect to the judgment on the demurrer as a bar to the suit, supported as the suit was merely by the contract in question. That a decision upon demurrer, if it involves the merits of the case, is just as final as any other decision, is beyond question. It is also true that “a decision given in the progress of a case, whether right or wrong, is the law of the case in which it is given and binding upon the parties.” Rector v. Danley, 14 Ark. 304; Cole v. Clarke, 3 Wise. 292 ; Deslonde v. Darrington, 29 Ala. 92; Thomas n. Doub, 1 Md. 252; Lucas v. San Francisco, 28 Cal. 591. There is no difference in principle between a decision on demurrer in the same case as res judicata for all subsequent proceeding, and a similar decision rendered in a different case. The demurrer, if sustained, disposes of the subject-matter; and the pleading demurred to drops entirely out of the case, if the party thereafter amends. Fir. J. W. Smith for defendant in error. Mr. Justice Gray delivered the opinion of the court. After reciting the facts as above set forth, he said: It is unnecessary to consider whether, if this were to be treated as a contract under seal, it could be held to be upon its face the contract of the Keets Mining Company, and not of Whitney only, or whether the oral testimony would have been admissible to charge Post; because, by the Civil Code of Dakota, “ all distinctions between sealed and unsealed instruments 422 OCTOBER TERM, 1882. Syllabus. are abolished,” and “ any instrument within the scope of his authority, by which an agent intends to bind his principal, does bind him, if such intent is plainly inferable from the instrument itself.” Civil Code of Dakota of 1877, §§ 925, 1373. By the subject-matter of this contract, which is the delivery and milling of ore from the Keets Mine; by the description of Whitney, both in the body of the contract and in the signature, as superintendent of the Keets Mining Company ; and by the use of the words “ parties of the first part,” which are applicable to a company and not to a single individual—the contract made by the hand of Whitney clearly appears upon its face to have been intended to bind, and therefore did bind, the company ; and, upon proof that Post was a partner in the company, bound him. Whitney v. Wyman, 101 U. S. 392; Hitchcock v. Buchanan, 105 U. S. 416; Goodenough n. Thayer, 132 Mass. 152. The order sustaining Post’s demurrer to the original complaint gave the plaintiff leave to amend, and did not preclude the plaintiff from renewing, nor the court from entertaining, the same question of law upon a fuller development of the facts at the trial on the amended complaint. Calder v. Haynes, 1 Allen, 387. Judgment affirmed. HAWKINS & Another, Assignees, & Others v. BLAKE & Another. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF NORTH CAROLINA. Decided May 7th, 1883. Assignees in Bankruptcy—Equity—Mandate—Parties—Practice. On appeal from the decree of the court below executing the mandate of the court on the judgment entered in Blake v. Hawkins, 98 U. 8. 815: He , 1. That it was no error in the execution of the mandate to permit a new pa y to become party and set up rights under the decree, when it appears y the record that all parties consented. HAWKINS v. BLAKE. 423 z Opinion of the Court. 2. That there was no error in charging the amount found due to the appellees as next of kin, upon the real estate conveyed to Devereux by his mother, and in the hands of his assignees in bankruptcy; and the assignees took the estate charged with the specific equity to which it was subject in the bankrupt’s hands, and must hold and apply it to the purposes to which in equity it is devoted. Appeal from the decree entered in. the court below on the mandate of this court sent down with the judgment and opinion in Blake n. Hawkins, 98 U. S. 315. Hr. Augustus 8. Merrimon and Mr. Thomas C. Fuller, for appellants. Mr. Solicitor-General and Mr. John IF. Hinsdale for appellees. Mr. Justice Matthews delivered the opinion of the court. A former appeal in this cause was disposed of by this court by a decision reported in Blake v. Hawkins, 98 U. S. 315, to which reference is made for a full statement of the case as then presented. The final decree of the circuit court, there reviewed, was reversed, and the cause was remanded with directions to take further proceedings and enter a decree in accordance with the opinion of the court as then declared. The subsequent proceedings and decree, upon the mandate of this court, are now brought here for review, on the ground that they do not, in several particulars, conform to that mandate. A brief statement of the case will suffice to explain and adjust the remaining controversy. The complainants below were the appellants from the first decree, and are now appellees. They are of the next of kin of Frances Devereux, entitled to a share of the residue of her personal estate undisposed of by her will. The object of the bill was to obtain an account of that estate from Thomas P. Devereux, as executor de son tort, including a fund, being part of a sum of $50,000 originally charged upon real estate conveyed to Thomas P. Devereux by Frances Devereux, in case she should appoint the same by will or otherwise, and which, it was claimed by the complainants, she had appointed by her will to her executors. The estate of Thomas P. Devereux 424 OCTOBER TERM, 1882. Opinion of the Court. passed, by his bankruptcy, to assignees and trustees, including the lands on which the fund in question, alleged to have been the subject of the appointment, had been charged. These assignees and trustees were defendants below, and are now appellants. The charge upon the lands conveyed to Thomas P. Devereux included an annuity, during the life of Frances Devereux, payable to herself, of $3,000, being six per cent, on the principal sum, and as to the principal sum the language of the deed was: “ That the said Thomas P. Devereux, his heirs or assigns, shall invest for, or pay to, the said Frances, at such times, in such proportions, and in such manner and form as she shall direct and require, to and for her own sole and separate use, and subject to her own disposal by will, deed, or writings in nature thereof, or otherwise, to all intents and purposes (notwithstanding her coverture) as if she were a feme sole and unmarried, the sum of $50,000 ; but if the said sum of money, or any part thereof, shall remain unpaid, or shall not be invested during her life, and if the said Frances shall not by deed or will or writing in nature thereof, or by some other act, give, grant, dispose, or direct any payment, investment, or application of the same, then the said sum of money, or so much thereof as shall remain not paid, given, granted, disposed, or directed to be invested, paid, or applied, shall be considered as lapsing and the charge thereof as extinguished for the benefit of the said Thomas.” In her will, among other bequests, was one of $7,500 to Thomas P. Devereux, in trust, to apply the income on the same annually to the payment of certain annuities and charities therein specified. There was no residuary clause. Thomas P. Devereux, though named as executor in his mother’s will, did not qualify as such; but, after her death, paid off the legacies mentioned and took possession of a large part of her personal estate, so as to become chargeable therefor as executor de son tort. The estate of Frances Devereux is represented by an administrator de bonis non with the will annexed. HAWKINS v. BLAKE. 425 Opinion of the Court. The decree of the circuit court in 1874, which was the sub-' ject of the former appeal, declared among other things: 1. That Frances Devereux did not by her last will appoint the fund of 150,000, charged upon the land, “ to be part of her general personal estate in the hands of her executors; nor appoint the said fund at all, except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her personal assets, after payment of her debts and general expenses and the cost of administering her estate.” 2. That the complainants were not entitled to any account of the fund of $50,000, except for the purpose of determining the amount in arrears of the annuity of $3,000 during the lifetime of Thomas Devereux, unexpended, of which unexpended balance, and of the remainder of her personal estate which came to the hands of Thomas P. Devereux, they are entitled to an account. 3. That in taking that account, the assignees in bankruptcy are entitled to be credited with the amounts which Thomas P. Devereux expended in purchasing the pecuniary legacies bequeathed by Frances Devereux. A statement of that account was agreed upon, which showed that, at the date of his bankruptcy, May 31st, 1868, Thomas P. Devereux was chargeable with $41,633 of the general personal assets of his mother’s estate, after payment of debts, funeral expenses, and costs of administration, including interest to that date; and that he was entitled to credit for $39,466.58, which included interest to the same date, for the amount expended by him in payment or purchase of the pecuniary legacies under the will, leaving a balance due from him of $2,166.42, of which the complainants were entitled to one-third, or $722.14, for which accordingly, a decree was entered in their favor. In reversing this decree, this court said, 98 U. S. 328: “ Whether, if the fund which remained in the hands of Thomas P. Devereux at the death of the testatrix had exceeded the sum required to pay the legacies given by her will—that is to say, the 426 OCTOBER TERM, 1882. Opinion of the Court. sum of 028,500—the will would have been a complete execution of the power, covering the whole fund, or only a partial appointment of so much as was needed to pay those legacies, it is unnecessary for us now to decide. In the view which we take of the other questions involved in the case, that fund had been reduced so far that there was not more than enough .remaining subject to the power to pay the sums bequeathed by the will. The execution was therefore complete, and it appointed the whole fund to the executors of this will, who took it under the appointment as part of the personal estate of the appointor.” . . . There was, therefore, error in the decree of the circuit court, so far as it adjudged that the testatrix, Frances Devereux, did not appoint to her executors the fund over which she had the power of appointment, “ except so far as it is necessary to resort to the same to pay off the pecuniary legacies bequeathed by her in her said will, after exhausting for that purpose what remains of her general assets after payment of her debts and funeral expenses and the costs of administering her estate.” After noticing and disposing of other assignments of error, not material now to be repeated, the judgment of the court concludes as follows: “ Our conclusion, therefore, is, after reviewing the whole case, that there has been no error committed, except the single one which we first noticed. For that, however, the decree of the circuit court must be reversed, and the case sent back with instructions to direct a new accounting, and to enter a decree in conformity with this opinion.” The mandate of this court was entered of record in the circuit court at the June term, 1879; and thereupon Louisa N. Taylor filed her petition praying to be made a party, for the purpose of asserting her right to receive the value of two annuities to which she claimed to be entitled, one of $50 per annum out of the fund of $7,500 bequeathed to Thomas P. Devereux in trust for herself and others ; and one of $150 per annum, which by the will of Frances Devereux, was directed to be paid out of funds arising from the sale of certain slaves HAWKINS v. BLAKE. 427 Opinion of the Court. and a house and lot in Chapel Hill, it being alleged in her petition that Thomas P. Devereux had sold the house and lot, received the proceeds, and converted the slaves to his own use. Service of this petition was accepted, and it was agreed that it might be heard at the same term, if practicable. The assignees in bankruptcy filed their answer to it, pleading the statute of limitations, alleging that the fund of $7,500 had been raised, and that the lands of Thomas P. Devereux were discharged from its payment, denying that the $150 annuity was a charge on those lands, but upon the house and lot in Chapel Hill, which sold for only $45, and the slaves, which it is alleged were not sold by Thomas P. Devereux, but lost by the result of the war, &c. It was thereupon agreed by the parties to waive the taking of the account ordered by the mandate of this court, and that “ the balance charged on the land of Thomas P. Devereux, and which Mrs. Frances Devereux had not disposed of during her life, and which by her will she appointed to her executors, was on the third (3d) of June, 1849, the date of her death, the sum of ($21,527.67) twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents.” The facts in regard to the legacy of $7,500 to Thomas P. Devereux in trust, and the interest therein of Louisa N. Taylor, were also agreed upon. It was further agreed that a certain account D, theretofore taken, of the general personal assets of Frances Devereux, filed at June term, 1874, was correct, except that the assignees in bankruptcy insisted on an exception, to the extent that Thomas P. Devereux is chargeable only with one-half the value of the slaves, being $9,995.50, with interest thereon to the amount of $9,823.57, instead of with the full amount charged; while the complainants insisted that the correctness of that account had been finally agreed to and settled at the June term, 1874, but that otherwise the account was in all respects correct. At the November term, 1879, the final decree was made, from which the present appeal is taken. The first seven of the 428 OCTOBER TERM, 1882. Opinion of the Court.* declarations in that decree specifically follow the mandate of this court, and the agreement of the parties as to the state of the accounts, overruling the exception of the assignees in bankruptcy to the account D, which charged Thomas P. Devereux with'the value of all the slaves which came to his hands after the death of Mrs. Devereux; and in this, we think, there is no error. The decree then proceeds as follows: “ 8. It is further declared that the said Thomas P. Devereux never raised and appropriated the $7,500.00 appointed to him in trust by the will of the said Frances out of his lands, conveyed to him by the aforesaid deed of July 3d, 1839, and that all the annuitants provided for by said appointment of $7,500.00 are dead or have abandoned their claims, except Louisa N. Taylor, who is still living ; and that none of said annuities have been paid since the first day of January, 1863, except the annuity to the said Louisa N. Taylor, which was paid by said Thomas P., Devereux up to the 1st day of January, 1867 ; and the court doth declare that there is a resulting trust for one-third of said sum of $7,500.00, and interest thereon from the 1st day of January, 1863, to the plaintiffs, subject, however, to the said Louisa N. Taylor’s claim for the value of her annuity of $50.00 per annum, one-third of which value falls upon the plaintiff’s share of said resulting trust; which said claims of the said Louisa N. and the said plaintiffs are first liens upon the lands of the said Thomas P. Devereux or the proceeds thereof in the hands of the defendants, in the relative order in which said claims are last herein stated, and are to be first paid in full by the defendants with and out of the proceeds of said lands. “ 9. It is further declared that the said Thomas P. Devereux, before November, 1852, purchased up all the other pecuniary legacies bequeathed by the will of the said Frances, and after said purchase, and before the day and date last aforesaid, converted to his own use all the general personal assets of the said Frances specified in section 7 of this decree as amounting, on the 31st day of May, 1868, to forty-one thousand six hundred and thirty-three dollars ($41,633.00), claiming the same to belong to him to satisfy the said pecuniary legacies and the aforementioned sum of $7,500.00 ; and the court doth declare that the annuity of $150.00 HAWKINS v. BLAKE. 429 Opinion of the Court. per annum bequeathed by the will of the said Frances to the said Louisa N. Taylor was and is a first lien on said sum of $41,633.00 of general assets, and ought to have been first paid thereout, and that the plaintiffs ought to have been paid one-third of said sum of general assets, subject to the burden of one-third of the annuity of $150.00 per annum to the said Louisa N. Taylor ; and that the said pecuniary legacies purchased by the said Thomas P. Devereux as aforesaid, and the aforesaid sum of $7,500.00, ought to have been paid out of the fund charged and appointed by the last will and testament of the said Frances Devereux on and out of the lands of the said Thomas P. Devereux, and the money to satisfy the same ought to have been raised on and out of said lands, and that said lands were exonerated from said burden by the use by the said Thomas P. Devereux, of the general personal assets aforesaid, whereby the plaintiffs have become entitled to have their aforesaid one-third of said general personal assets, burdened as aforesaid, paid out-of the proceeds of said lands in the hands of the defendants, and the said Louisa N. Taylor has become entitled to have the value of her aforesaid annuity of $150.00 per annum paid to her out of the said proceeds of the said lands, and in preference to the said claim of the plaintiffs ; and it is declared by the court here that the last aforesaid claim of the said Louisa N. Taylor is a third lien upon the said proceeds of lands in the hands of the defendants, and the last aforesaid claim of the plaintiffs is a fourth lien on the same, and that both of said claims are to be paid by the defendants out of said proceeds in the relative order in which the same are next hereinbefore stated in full, if the said proceeds shall be sufficient to pay both of the same in full, and if not sufficient then the claim of the said Louisa N. is to be paid in full, and the claim of the plaintiffs shall be paid as far as said proceeds shall extend to satisfy the same. “ 10. All the parties, plaintiff and defendant, having at June term, a. d. 1879, of this court filed an agreement in writing waiving any further account, and ascertaining the balance charged on the lands of Thomas P. Devereux for the benefit of Frances Devereux at the date of her decease, in the words and figures following, to wit : “ ‘ In this cause the mandate from the Supreme Court of the U. S. is filed, and to avoid the expense and delay incident to taxing the account ordered and directed herein by the decision 430 OCTOBER TERM, 1882. Opinion of the Court. and decree of said court, and because from the accounts already heretofore taken in this cause the parties are able to ascertain by agreement all the results necessary for the final determination of this cause, without the new accounting directed by said decree of supreme court, by consent of all the parties, plaintiff and defendant, herein, all further account herein is waived, and it is agreed that the balance charged on the land of Thomas P. Devereux, and which Mrs. F. Devereux had not disposed of during her life, and which, by her will, she appointed to her executors, was on the 3d day of June, 1849, the date of her death, the sum of twenty-one thousand five hundred and twenty-seven dollars and sixty-seven cents ($21,527.67)? “11. And the said Louisa N. Taylor having, at June term, 1879, of this court filed a petition to be made a party to this cause and to assert her rights in the premises, and having at said term, by the consent of all the parties, plaintiff and defendant herein, been made a party hereto, and it appearing to the court that said Louisa N. Taylor, on the 26th of March, 1869, before the register in bankruptcy proved and filed her claim on account of the legacy hereinbefore named against the estate of said bankrupt, Thomas P. Devereux, as a debt secured by lien on the lands of the said Thomas P. Devereux, to the amount of $2,926.12,'with interest, and the plaintiffs having here in open court assented to the payment of said claim in the manner specified and directed in this decree, the court doth declare that there is now due to the said Louisa N. Taylor upon the $50.00 annuity, the sum of $1,196.45, with interest on $726.53, from Nov. 24th, 1879, and upon the $150.00 annuity, the sum of $3,413.40, with interest on $2,179.59, from Nov. 24, 1879, charged as hereinbefore declared. “ And thereupon, it being obvious to the court that a new reference and further account in the premises is entirely useless and unnecessary, it is finally ordered, adjudged, and decreed that the said Louisa N. Taylor recover of the defendants, William J. Hawkins and Walter Clark, assignees in bankruptcy of the estate and effects of Thomas P. Devereux, deceased, a bankrupt, and of the said Walter Clark and the defendant, Jno. Devereux, substituted trustees for Thomas P. Devereux, deceased, under the deed for the Pollock land, of July 3d, 1839, the sum of ($1,196.45) eleven hundred and ninety-six dollars and forty-five cents, with interest on $726.53 thereof, from 24th November, 1879, until paid, HAWKINS v. BLAKE. 431 Opinion of the Court. to be paid and satisfied out of the proceeds of the sales of the said Pollock lands, in their hands, respectively, first, and in preference to all other claims against said proceeds; and that the plaintiffs, Grinfill Blake and Elizabeth J., his wife, and Jno. Townsend and Georgiana P., his wife, do recover of the said defendants, Hawkins, Clark, and Devereux, assignees and trustees as aforesaid, the sum of ($4,569.73) forty-five hundred and sixty-nine dollars and seventy-three cents, with interest on $2,468.34 thereof from the 24th November, 1879, until paid, to be paid out of said proceeds of said sales of said Pollock lands in their hands, respectively, and next in order of preference. “ And that the said Louisa N. Taylor do recover of the said defendants, Hawkins, Clark, and Devereux, assignees and trustees as aforesaid, the sum of ($3,413.40) three thousand four hundred and thirteen dollars and forty cents, with interest on ($2,179.59) twenty-one hundred and seventy-nine dollars and fifty-nine cents thereof from the 24th November, 1879, until paid, to be paid and satisfied out of said proceeds of said sales of said Pollock lands in their hands, respectively, and next in order of preference. “ And that the plaintiffs, Grinfill Blake and Elizabeth J., his wife, and Jno. Townsend and Georgiana P., his wife, do recover of the said defendants, Hawkins, Clark, and Devereux, trustees and assignees as aforesaid, ($21,200.46) twenty-one thousand two hundred dollars and forty-six cents, with interest on $13,877.66 thereof from the 24th day of November, 187*9, until paid, to be paid and satisfied out of the said proceeds of the said sales of the said Pollock lands in their hands, respectively, and in the event that said proceeds shall prove sufficient to pay and satisfy said last-mentioned sum in full, and if said proceeds shall not prove sufficient, then as far as said proceeds shall extend to satisfy the same. “ That the costs in this cause incurred, to be taxed by the clerk, be paid by the said defendants, assignees and trustees as aforesaid, with and out of said proceeds of said sales of said Pollock lands in full and without reference to the satisfaction of the four foregoing sums adjudged to be paid out of such proceeds.” It is now objected to this decree that it is not warranted by the mandate of this court, in execution of which only it could be properly made; and that if the matters decreed were open under the mandate, they were adjudged erroneously. 432 OCTOBER TERM, 1882. Opinion of the Court It is said, in. the first place,* that it was error to permit Louisa N. Taylor to become a party and set up rights not embraced in the former decree. The obvious answer to this objection is, that it was done by consent of all parties, as appears by the record. And there is no ground on which the decree in her favor can be impugned. Her annuity of $50 per annum was expressly payable out of the legacy to Thomas P. Devereux in trust, in respect to which his assignee cannot be heard to say that his land has been relieved of the charge by which the fund was to be raised, when, in point of fact, the fund never has been raised. As to the annuity of $150, although payable out of a fund expressly designated, it was a demonstrative legacy, payable, in default of that fund, out of general assets, and entitled, therefore, to the benefit of the fund of $50,000, converted by the appointment into general personal estate, and, as part of that, chargeable on the land as hereafter shown. 2 Williams on Executors, Pt. 3, Book 3, ch. 2, § 3, p. 1160, 6th Am. ed. 1252. It is next objected that the circuit court below erred in charging the amount found due to the appellees, as next of kin, entitled to share the undisposed residue of the estate of Frances Devereux, from the estate of Thomas P. Devereux, upon his real estate conveyed to him by his mother. It is claimed that this part of the decree is not justified by the mandate, and is erroneous on principle. But this view, in our opinion, cannot be sustained. The very point of our former decision was, that the appellees were entitled to an account of the fund of $50,000, or so much of it as remained, as part of the personal estate of Mrs. Frances Devereux, by virtue of her will, construed as an appointment. The language of the opinion was, 98 U. S. 328: “We conclude, therefore, that Mrs. Devereux’s will was an execution of the power and an appointment of the fund to her executors. It converted the fund into her own estate, at least to the extent of $28,500, if there was so much of it remaining.’ It is conceded that the proper amount of this fund, according HAWKINS v. BLAKE. 433 Opinion of the Court. to the agreement of the parties, has been brought into account, and that the balance decreed in favor of the appellees is the true amount due to them from the estate of Thomas P. Devereux. This is so, because the personal estate of Mrs. Frances Devereux has been increased, in the account, by the addition of the balance of this fund, according to the mandate of this court. But that fund is still uncollected and is a lien on the lands of Thomas P. Devereux in the hands of his assignees and trustees. Why should not security go with the debt ? The debt is the principal and the security an incident, which necessarily attends it. It certainly was not the intention of this court, in its former order, to separate them. And when it reversed the decree of the circuit court in order to award to the appellees the benefit of the fund appointed by the will of Mrs. Devereux to become part of her personal estate, it meant also to give them the benefit of any security for its collection and payment that appointment furnished. And that such security existed, by way of lien and charge upon the land, in virtue of the appointment, and inures to the benefit of the appellees, as entitled to share in the general personal estate of the testatrix, is necessarily involved in the former judgment of this court. For that judgment did not proceed, as seems to be claimed, on the ground that the appointment of that fund by the will was merely to the legatees, or to the use of the legatees under the will, so that when their legacies were satisfied, no matter by what means, the land was discharged of its lien. On the contrary, that judgment proceeded on the ground that the will was an appointment of what remained of the fund of $50,000 as a charge upon the land, to the executor of the testatrix, so as to convert that fund into part of the general personal estate of the testatrix, thereby subjecting it, as part of that estate, to the claims of all persons entitled to share in its distribution, it being the intention of the testatrix, as expressly deduced by this court from the provisions of the will, to provide a fund in the hands of her executors, in addition to the personal estate in possession, adequate to redeem the legacies given by the will, so as to exonerate that vol. cvrii—28 434 OCTOBER TERM, 1882. Opinion of the Court. estate from their payment. That fund was not a trust merely in aid of the general assets, to enable the latter to meet the payment of the legacies. That was the error of the circuit court in its first decree, for which it was reversed. It was, on the other hand, as declared by this court, “ an appointment of the whole fund to the executors of the will, who took it under the appointment as part of the personal estate.” And that means, just what the decree now under review declares, that it is appointed to be raised by a sale of the land on which it is charged, to be paid into the estate of the testatrix, for the purpose of being distributed to the appellees, as being the parties entitled. Not only was this fund charged upon the real estate of Thomas P. Devereux appointed to his executors, so as to become part of the general personal estate of Mrs. Frances Devereux, so that in law the whole, including the undisposed-of residue, became liable to distribution as one trust fund for creditors, legatees, and distributees, in the order of legal priority, but that order of priority was changed by the will as declared by this court, so as to make the fund charged on the land and appointed by the will the primary fund for the payment of the legacies, so as to authorize those entitled to the general personal estate, as in this case, the next of kin entitled to the undisposed-of residue, to require that, for the purpose of paying the legacies, the specific fund charged on the land and appointed by the will should be first exhausted before resorting to the general assets of the testatrix. This court expressly so declared in its judgment on the former appeal. It said, 98 U. S. 327: “ Turning now to the will we have before us, two things are evident. The first is that the testatrix did not intend that the pecuniary legacies given for charitable purposes and to pay annuities should be satisfied out of her own personal property. After specifying the disposition made of her personal estate in possession, the opinion proceeds: “Thus it appears that while she gave pecuniary legacies HAWKINS v. BLAKE. 435 Opinion of the Court. amounting in the aggregate to more than $28,500, she carefully withdrew from any positive application to their payment the personal estate she owned in her own right.” Notwithstanding this, Thomas P. Devereux, acting, though wrongfully, as executor of this will, and chargeable as such, appropriates the general personal estate to his own use, to reimburse himself the amount which he had expended in paying or purchasing the legacies; and thus charges them upon the general assets, in violation of the intention of the will and the rights of the parties who by law were entitled to share in that estate. Why are not the next of kin now entitled to stand in the place of those legatees, in respect to the fund out of which they should have been paid ? Upon the familiar principle of marshalling assets by means of subrogation, when a party, having a right to resort to two funds, to the detriment of another, entitled to be paid out of but one, has been satisfied out of the latter, the fund thus exonerated will in equity be subjected to the payment of the postponed claim. This is such a case. For it is immaterial that Thomas P. Devereux did not use the specific property received by him out of the estate of Frances Devereux for the purpose of paying or purchasing the legacies entitled to payment out of the fund charged on his land, because he had received credit, with the assent of the parties and by the decree of the court, in his account of the general assets of that estate, for the amount paid by him on account of the legacies. How can he say, after that, that his real estate has been discharged of the lien by his payment of the legacies ? The deficiency in the general personal estate thus created by him for the purpose of exonerating his land, is, in equity, something more than a personal claim against him. It is entitled to be supplied out of the securities that attended the claims which it was created to satisfy, and these securities are in equity considered as subsisting for that purpose. As against Thomas P. Devereux himself, if he were in being and in his own right defending against this claim of the appellees, the case would be too clear for argument. What greater rights have his assignees in bankruptcy, representing his general 436 OCTOBER TERM, 1882. Syllabus. creditors ? They have come into possession of this real estate, but only with the title by which he held it, subject to the specific equity now asserted against it; and in their hands, as trustees, it must be held and applied to subserve the purposes to which in equity it is devoted. Those purposes, in our opinion, are correctly set forth in the decree of the circuit court; and It is accordingly affirmed. CLARK, General Treasurer of Rhode Island, v. BARNARD & Others, Assignees. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOE THE DISTRICT OF MASSACHUSETTS. Decided May 7th, 1883. Bond—Constitutional Law— Corporations—Damages—Franchises—Penalty. 1. The B. H. & E. Railroad, a corporation created by the State of Connecticut, purchased the franchises and railroad of the H. P. & F. Railroad, a corporation created under the laws of Rhode Island and Connecticut. The legislature of Rhode Island ratified the sale, and authorized the B. H. & E. Company to exercise the rights, privileges, and powers of the H. P. & F. Company: Held, That the B. H. & E. Company thereby became the legal successor of the H. P. & F. Company in Rhode Island ; and, in respect to its railroad in Rhode Island, a corporation of that State. 2. The State of Rhode Island authorized by an act of its legislature the B. H. & E. Company to extend within the limits of the State the road thus acquired. The act further contained the following proviso: “This act shall not go into effect unless the said B. H. & É. Company shall, within ninety days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this State, in the sum of $100,000, that they will complete their said road before the first day of January, A. d. 1872.” Within the time named the requisite bond was filed in the sum of $100,000 conditioned as follows : “ Now, therefore, if said B. H. & E. Company shall complete their said railroad before the first day of January, A. d. 1872, then the afore written obligation shall be void; otherwise be and remain in full force and effect ; ” and as the requisite security for the payment o the bond, a loan certificate of the city of Boston for $100,000 was deposito with the State treasurer. The B. H. & E. Company became bankrupt. CLARK v. BARNARD. 437 Argument for Appellees. The assignees in bankruptcy filed a bill in equity to restrain the treasurer of the State from collecting the certificate. The treasurer demurred, on the ground that the real party in interest was the State. In the course of the proceedings the money was paid into court on an interlocutory decree. The State then came in and claimed it: Held, (1.) That the voluntary appearance by the State disposed of the demurrer and conferred jurisdiction to adjudicate upon the rights of the State. The case distinguished from Georgia v. Jesup, 106 U. S. 458. (2.) That the sum named in the bond in question was not a penalty to secure the performance of a condition, which could be discharged on payment of such damages as might be proved to have arisen from non-performance; but that it was in the nature of a statutory penalty for the non-performance of a statutory duty, and that it was not necessary for the State to show any actual damage or injury from the breach, in order to be entitled to recover when the breach was proved. The law and cases on this subject considered and reviewed. Bill in equity by the assignees in bankruptcy of the Boston, Hartford & Erie Railroad to restrain the treasurer of the State of Rhode Island from receiving $100,000 in the possession of the court, the proceeds of a loan certificate of the city of Boston, which was lodged with the State by the bankrupt as security for the performance of its bond for that amount given to the State in pursuance of law to secure the construction of an extension of its road in Rhode Island, the extension never having been made. The facts appear in detail in the opinion of the court. The main questions discussed in argument were: The power of the corporation to make the agreement with the State; the rights of the parties in the absence of the State; the effect of an appearance by the State for the purpose of claiming the fund after it had been paid into court; and the measure of damages on the breach of the condition of the bond. Hr. Charles Hart and Hr. William G. Roelker for the appellants. Hr. Robert R. Bishop and Hr. John C. Gray for the appellees.—I. In this suit the State is not a party to the record. Even if Clark had been described as treasurer, the suit would not have been against the State. Still less will it be so, when ne is sued simply as an individual. Osborn n. Bank of United States^ 9 Wheat. 738, 857, 858; Davis v. Gray^ 16 438 OCTOBER TERM, 1882. Argument for Appellees. Wall. 203, 220; The Arlington Case ( United States v. Lee), 106 IT. S. 196; Governor of Georgia n. ALadrazo, 1 Pet. 110,122, 123. The plaintiffs could have recovered in this suit, even if the State of Rhode Island had not appeared. For the fact that it cannot be made a party defendant is sufficient reason for not making it a party defendant, and the bill cannot therefore be objected to for want of parties. Attorney-General n. Baliol College, 9 Mod. 409; Osborn v. Bank of United States, 9 Wheat. 738, 846, 847; Davis v. Gray, 16 Wall. 203. But the State has appeared voluntarily and claimed the fund, and has thereby submitted itself to the jurisdiction of the court. Brunswick n. Hanover, 6 Beav. 1, 39. Interpleader will lie against the Crown, Deed v. Steam, 1 L. T. (N. S.), 539; & C. 6 Jur. 267 ; and the position of affairs in this case is like that which would arise in an interpleader suit. See Lariviere v. Morgan, L. R. 7 Ch. App. 550, 560. The State, having voluntarily appeared and claimed the fund in court, cannot take any objections to the want of jurisdiction over it, or to the form of the proceedings, or to the manner in which the fund has got into court, except so far as it has reserved the right to do this by inserting these words in its appearance and claim—“ without prejudice to the demurrer of said general treasurer.” The demurrer of the treasurer asked that he might be dismissed from the suit, because the suit was really against the State of Rhode Island. The treasurer is entitled to the judgment of this court on the soundness of that demurrer, notwithstanding the appearance of the State. The appearance and claim of the State is not to debar the treasurer of the right of taking the judgment of this court upon the soundness of his demurrer. That is the effect of the words “ without prejudice to the demurrer of said general treasurer,” and that is their only effect. The demurrer is clearly bad, for the ground that the whole transaction was ultra vires is taken on the bill; and Osborn s Case is conclusive that, if the delivery was without authority, the bill can be maintained against the treasurer.—II. The acceptance by the company of the act of Rhode Island is void as ultra vires. The Boston, Hartford & Erie Company was chartered by the State of Connecticut. The general rule of CLARK v. BARNARD. 439 Argument for Appellees. law is clear: A corporation chartered in one State cannot do acts in another State which are not authorized by the charter, although they are permitted by such other State. The rules to be applied to the construction of corporate grants are well known. “ A corporation created by statute can exercise no powers, and has no rights except such as are expressly given or necessarily implied.” Huntington v. Savings Bank, 96 U. S. 388, 393. A corporation can make no contracts and do no acts, either within or without the State which creates it, except such as are authorized by its charter. Bank of Augusta n. Earle, 13 Pet. 519, 588, 589; Cleveland, dec., Railroad Company v. Speer, 56 Penn. St. 325. See Pierce v. Crompton, Sup. Ct. R. I. Index Decisions, March T. 1881, p. 18. Indeed, unless authorized to do so expressly, or by necessary implication, it can do no acts at all outside of the incorporating State. Bank of Augusta v. Earle, 13 Pet. 589. The reason why acts done without authority outside of the incorporating State are ultra vires is precisely the same as the reason why acts done inside of the State without authority are ultra vires; namely, that the capital stock of a corporation is in the nature of a trust fund. Bpton v. Tribilcock, 91 U. S. 45-48; Great Eastern Railway Company v. Turner, L. R. 8 Ch. App.* 149,152. The terms of the trust being that it shall be used for the purposes specified in the charter, and for no other purposes : (1) In the interest of the public, that the ability of the corporation to render to the public those benefits in consideration of which the corporate privileges were granted may not be impaired; Pearce v. Madison, dec., Railroad Company, 21 How. 441, 443; East Anglian Railways Company v. Eastern Counties Railway Company, 11 C. B. 775, 812; (2) In the interest of the creditors of the corporation, that the fund, to which alone they can look for the payment of their debts, shall not be wasted by being applied in any other manner than that authorized by the charter. Upton v. Tribilcock, ubi sup.; Ashbury, R. C. <& L Company v. Riche, L. R. 7 H. L. 653, 667, 678, 687, 691, per Lords Cairns, Chelmsford, Hatherley, and O’Hagan.—III. The State of Rhode Island can recover on the bond in question, if valid, only the damage it proves that it has really sustained 440 OCTOBER TERM, 1882. Argument for Appellees. from the failure to build the road. The obligation imposed by a bond is a matter perfectly familiar not only to lawyers, but to every business man. It is that the obligor is bound for the damages caused by the breach of the condition, to an amount not exceeding the penal sum, and that the penal sum is not itself due on a breach. This is as well known as that a bill of exchange payable to order is negotiable. Equity construed a bond, according to the original intent, to be an obligation to perform the condition, and accordingly held that the obligee was entitled to a decree directing the obligor to specifically perform the act set forth in the condition. Anonymous, Mosely, 37; Holtham v. Ryland, 1 Eq. Cas. Abr. 18, pl. 8 ; Parks v. Wilson, 10 Mod. 515, 517, 518; Hobson n. Trevor, 2 P. Wms. 191. Counsel also cited Tall n. Ryland, 1 Ch. Cas. 183; Benson v. Gibson, 3 Atk. 395 ; Hardy v. Martin, 1 Cox, 26; S. C. 1 Bro. C. C. 419, note f ; Sloman v. Walter, 1 Bro. C. C. 418; Errvngton v. Aynesly, 2 Bro. C. C. 341; Bertie v. Falkland, 3 Ch. Cas. 129,131; Reynolds v. Pitt, 19 Ves. 134, 142; Hill n. Barclay, 16 Ves. 402, 404. There are no late cases in equity on bonds, because the doctrines of equity have been taken up into the common law by virtue of statutes, of which 8 & 9 Wm. III., c. 11, § 8, was the first. That statute was entitled “ An Act for preventing frivolous and vexatious suits,” and provided that in all actions on any bonds or on any penal sums for the non-performance of covenants, agreements, etc., the plaintiff might assign as many breaches as he pleased, and the jury should assess the damages caused by such breaches; that judgment should be given for the penal sum, but on payment of the damages assessed by the jury there should be a stay of execution, and the judgment should stand as security for future breaches. That statute was practically inoperative until 1790; for, until then, it was assumed that it was not compulsory, and that the plaintiff had the right to elect whether to proceed under the statute or not. But, in 1790 it was definitely settled that, the main object of the statute being to relieve obligors, Savile n. Jackson, 13 Price, 715, 719; Smith n. Bond, 10 Bing. 125, 131, it was to be constructed liberally and to be compulsory, Hardy v. Bern, 5 T. CLARK v. BARNARD. 441 Argument for Appellees. R. 636; Roles v. Rosewell, ib. 538; and to include all bonds, except those against which courts of law could relieve under other statutes without the intervention of a jury. Roberts v. Mariett, 2 Wm’s Saunders, Edition of 1845, p. 187, note 2; Collins v. Collins, 2 Burr. 820; Welch v. Ireland, 6 East, 613 ; Smith x. Bond, ubi supra', Leake’s Digest of Law of Contracts, 144, 1083. The practical effect of this statute was to adopt the rule in equity, and was concisely stated by Baron Parke in Beckham v. Drake, 2 H. L. 579, 629: “ That statute in effect makes the bond a security only for the damages really sustained.” The exact effect of 8 & 9 W. III., c. 11, § 8, is to prescribe that, in every action brought in England on a bond conditioned for a collateral act, nothing should be recovered but the damages proved to have been really sustained by the failure to perform that collateral act. The several States, including Rhode Island, have passed statutes in substance like the English statute. It is unnecessary to consider them particularly, because the U. S. Rev. Stat. § 961, is explicit. “ In all suits brought to recover the forfeiture annexed to any articles of agreement, covenant, bond, or other specialty, where the forfeiture, breach, or non-performance appears by the default or confession of the defendant, or upon demurrer, the court shall render judgment for the plaintiff to recover so much as is due according to equity. And, when the sum for which judgment should be rendered is uncertain, it shall, if either of the parties request it, be assessed by a jury.” Accordingly, neither in England nor America, neither in equity nor under the statutes, has the penalty of a bond been considered as liquidated damages. In some cases where a bond has been given not to commit a crime, e. g., not to defraud the revenue, equity has refused to interfere, not because the penalty is liquidated damages, but because the penalty is the punishment imposed for committing a crime. See Benson v. Gibson, 3 Atk. 395, 396 ; Treasurer v. Patten, 1 Root. 260 ; United States v. Montell, Taney Dec. 47. There are some cases in which the obligee of a bond has been allowed to recover a sum equal to the penalty; but this has not been because the penalty was liquidated damages, but because the condition provided that such 442 OCTOBER TERM, 1882. Opinion of the Court. sum should be paid as liquidated damages. The contract was to pay the sum named in the condition, and the penalty stood as usual as security for this payment. Fletcher v. Dyche, 2 T. R. 32 ; Mercer v. Iring, E. B. & E. 562 ; Cotheal v. Talmage, 9 N. Y. 551 ; Smith v. Smith, 4 Wend. 468 ; Bagley n. Peddie, 16 N. Y. 469 ; Chase v. Allen, 13 Gray, 42 ; Leary v. Lafdn, 101 Mass. 334 ; Hodges v. King, *1 Met. 583 ; Gowen v. Gerrish, 15 Maine, 2T3. In conclusion, therefore, it is clear that, from a period at’least as early as the year 1650, down to the present time, bonds have constituted a distinct class of instruments, the effect of which is always the same, in the same sense that the effect of a conveyance to A and his heirs is always the same. Such is the rule of equity. Such was the effect of the statutes. Mr. Justice Matthews delivered the opinion of the court. The appellees, who were complainants below, filed their bill in equity, as assignees in bankruptcy of the Boston, Hartford & Erie Railroad Company, against Samuel Clark, general treasurer of the State of Rhode Island, and the city of Boston and Frederick IT. Tracey, its treasurer. The bill alleged that the Boston, Hartford & Erie Railroad Company was a corporation created by the States of Connecticut and Massachusetts for the purpose of building, acquiring, and operating a railroad from Boston in Massachusetts to Willimantic in Connecticut, and from Providence in Rhode Island to Willimantic, and from Willimantic through Waterbury to the State line of Connecticut, and thence to Fishkill in New York ; that the directors of the company, without, authority from the corporation or by law, applied to the legislature of Rhode Island in 1869, and obtained the passage of an act entitled “An Act in addition to an act to ratify and confirm the sale of the Hartford, Providence & Fishkill Railroad to the Boston, Hartford & Erie Railroad Company,” by which thé company was authorized to locate and construct a railroad in extension of their line of railroad purchased of the Hartford, Providence & Fishkill Railroad Company, commencing at their depot in Providence, thence running to the easterly line of the State in or near the village CLARK v. BARNARD. 443 Opinion of the Court. of Valley Falls, to meet and connect with a Massachusetts railroad extending through North Attleborough from Boston, so as to make a continuous line of railroad in a northerly and southerly direction between Providence and Boston; that this act contained a provision in the following terms: “ This act shall not go into effect unless the said Boston, Hartford & Erie Railroad Company shall, within ninety days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this State in. the sum of one hundred thousand dollars, that they will complete their said road before the first day of January, a. d. 1872.” That this condition was not complied with, and that the said act therefore never took effect and is wholly null and void; that, after the passage of the act, the directors and officers of the corporation, without authority and in abuse of their trust and duty, filed with one Samuel Parker, then the general treasurer of Rhode Island, a paper, purporting to be the bond of the corporation, but without sureties, and fraudulently took of the funds of the corporation the sum of $100,000 and deposited the same with the city treasurer of Boston in exchange for the obligation of that city, a copy of which is as follows: “Temporary Loans, City of Boston. “$100,000. No. 6. “ This certifies that, for value received, there will be due from the city of Boston, payable at the office of the city treasurer, on demand, after the first day of December next, to the general treasurer of the State of Rhode Island, or order, the sum of one hundred thousand dollars, with interest at the rate of seven per cent, per annum, in current funds. “This loan being authorized by an order of the city council passed the ninth day of June, eighteen hundred and sixty-nine, to anticipate the income of the present financial year. “ Interest will not be allowed after this note is due. “June 28, 1869. Alfred T. Turner, Auditor. “Fred. U. Tracey, Treasurer. Nath’l B. Shurtleff, Mayor.” 444 OCTOBER TERM. 1882. Opinion of the Court. That the directors and officers of the company, without consideration and without authority, deposited this certificate and obligation with the said Parker, who received the same without warrant of law, and thereupon held the same to the use of the railroad company; that the corporation never accepted the act of the legislature recited; that the railroad authorized thereby has never been built, nor any work done thereon, nor has the State of Rhode Island, nor any citizen thereof, suffered any damage or loss by reason thereof; that the general assembly of Rhode Island considered that the filing of the certificate and obligation of the city of Boston was not a compliance with the act, and did not ratify the taking of the same till after the bankruptcy of the railroad company; that said bankruptcy was adjudicated on October 21st, 1870, and the complainants became assignees in bankruptcy of said company from that date, and entitled to the money represented by the said certificate; that Samuel Parker having died, the respondent Clark succeeded him as general treasurer of Rhode Island, and came into possession of the said certificate, which, it is alleged, however, he holds wrongfully, and in his individual and not his official capacity, and to the use of the complainants, but which, nevertheless, he threatens to collect and to withhold from them the proceeds thereof. The prayer of the bill is, “ that the said respondent Clark may be decreed to have no right, title or interest in or to the said paper writing A, or in or to the said money so deposited with the said respondent Tracey, or to any part thereof, and that he may be decreed to assign and deliver over the said paper A to your orators, and may be enjoined and restrained from presenting the same to the said respondent Tracey, or to the said city of Boston, or from receiving any money or payment whatsoever thereon or therefor, or any part thereof, or from receiving or holding the said sum of $100,000, or any part thereof, from the said respondent Tracey, or the said city of Boston, and that the said respondent Tracey and the said city of Boston may be decreed to pay over to your orators, as assignees as aforesaid, the said sum of $100,000, with interest thereon, and may be enjoined and restrained from paying the same, or any part thereof CLARK v. BARNARD. 445 Opinion of the Court. or any money on account thereof, to the said respondent Samuel Clark, the general treasurer of the State of Rhode Island, and that your orators may have such other and further relief as to your honors shall seem meet, and as the nature and circumstances of the case shall require.” To this bill a demurrer was filed by Clark, for want of jurisdiction, on the ground that it was in substance a suit by citizens of one State against the State of Rhode Island. This demurrer was overruled. Clark then filed his answer, denying the material allegations of the bill, asserting that the transaction was with the State of Rhode Island, through the treasurer in his official capacity, and insisting upon the immunity of the State from suit by citizens of other States as a defence. The cause came on for hearing upon the pleadings and proofs, when an interlocutory decree was passed, April 15th, 1878, ordering the payment of the money due from the city of Boston upon the loan certificate into the registry of the court, with liberty to the defendant Clark to take and file evidence in support of any claim for damages by reason of the breach of the bond of the Boston, Hartford & Erie Railroad Company to the State of Rhode Island; and further ordering, that on final hearing, and upon filing in court the certificate of indebtedness, the general treasurer of the State of Rhode Island should have and recover of the said sum in the registry such portion or the whole thereof as should amount to the sum, if any. for which any surety might or for which the principal obligor in said bond would be liable, upon the evidence, either for any penalty or damages by reason of the non-performance and breach of the conditions of said bond. On May 3d, 1878, the city of Boston paid into court the sum of $100,000, and, in addition, the interest accrued to December 1st, 1869, and subsequently, on February 25th, 1880, an additional amount for interest in full. On March 17th, 1880, the following claim of the State of Rhode Island was filed by the allowance of the court as of April 15th, 1878, after the entry of the interlocutory decree of that date: 446 OCTOBER TERM, 1882. Opinion of the Court. “ And now Comes the State of Rhode Island, by the undersigned, the same counsel who have appeared for the defendant Clark, general treasurer of said State, and without prejudice to the demurrer of said general treasurer, claims the fund in the registry of the court.” This was signed by counsel. On final hearing the fund was awarded to the appellees; and from that decree Clark, general treasurer of the State of Rhode Island, and the State of Rhode Island appealed. The State itself is a party to the appeal bond, which recites that the State of Rhode Island was an intervenor and claimant of the fund in court, and that a decree was rendered against it as such. The bond executed and delivered by the Boston, Hartford & Erie Railroad Company to the State of Rhode Island is as follows: “ Know all men by these presents that the Boston, Hartford and Erie Railroad Company, a corporation created by the general assembly of the State of Connecticut, is held and firmly bound to the State of Rhode Island and Providence Plantations in the sum of one hundred thousand dollars, to be paid to said State of Rhode Island and Providence Plantations ; to which payment, well and truly to be made, the said corporation doth bind itself and its successors firmly by these presents. “ The condition of the aforewritten obligation is such, that whereas by an act of the general assembly of said State of Rhode Island, entitled ‘ An Act in addition to an act entitled An Act to ratify and confirm the sale of the Hartford, Providence and Fishkill Railroad to the Boston, Hartford and Erie Railroad Company,’ passed at the January session, 1869, said Boston, Hartford and Erie Railroad Company are authorized and empowered to locate, lay out, and construct a railroad, in extension of their hue of railroad purchased of the Hartford, Providence and Fishkill Railroad Company, commencing at a point in their said purchased railroad at or near their freight depot in the city of Providence, thence running westerly and northerly by a line westerly of the State’s prison, a little easterly of the Rhode Island Locomotive Works, and thence by nearly a straight line and crossing or running near to Leonard’s Pond, and thence passing between the CLARK v. BARNARD. 447 Opinion of the Court. villages of Pawtucket and Lonsdale, and over and above the Providence and Worcester Railroad, thence continuing to the easterly line of the State, in or near the village of Valley Falls : “Now, therefore, if said Boston, Hartford and Erie Railroad Company shall complete their said railroad before the first day of January, a. d. 1872, then the afore written obligation shall be void ; otherwise be and remain in full force and effect. “In testimony whereof, said Boston, Hartford and Erie Railroad Company have caused this instrument to be signed by John S. Eldridge, its president, and its corporate seal to be thereto affixed, this twenty-third day of June, 1869. “[l. s.] Boston Hartford and Erie R. R. Co., “By John S. Eldridge, President. “ Executed in presence of— “Samuel Currey. “H. S. Barry.” The testimony taken in the cause pursuant to the interlocutory decree, it is admitted, failed to prove any damage or loss occasioned to the State of Rhode Island, or to any of its citizens or inhabitants, by reason of the failure of the railroad company to comply with the conditions of this bond. The first question for determination on this appeal is that of jurisdiction, raised first by the demurrer and afterwards by the answer of Clark, general treasurer of the State of Rhode Island, on the ground that the suit was in effect brought against a State by citizens of another State, contrary to the Eleventh Amendment to the Constitution of the United States. We are relieved, however, from its consideration by the voluntary appearance of the State in intervening as a claimant of the fund in court. The immunity from suit belonging to a State, which is respected and protected by the Constitution within the limits of the judicial power of the United States, is a personal privilege which it may waive at pleasure; so that in a suit, otherwise well brought, in which a State had sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States would be a voluntary submission to its jurisdiction; while, of course, those courts are always open to it as a suitor in controversies between it and 448 OCTOBER TERM, 1882. Opinion of the Court. citizens of other States. In the present case the State of Rhode Island appeared in the cause and presented and prosecuted a claim to the fund in controversy, and thereby made itself a party to the litigation to the full extent required for its complete determination. It became an actor as well as defendant, as by its intervention the proceeding became one in the nature of an interpleader, in which it became necessary to adjudicate the adverse rights of the State and the appellees to the fund, to which both claimed title. The case differs from that of Georgia v. Jesup, 106 U. S. 458, where the State expressly declined to become a party to the suit, and appeared only to protest against the exercise of jurisdiction by the court. The circumstance that the appearance of the State was entered without prejudice to the demurrer of Clark, the general treasurer, does not affect the result. For that demurrer could not reach beyond the question of the right to sue Clark by reason of his official character, which became insignificant when the State made itself a party; and in point of fact, the bill was framed to avoid the objection, by charging Clark as a wrongdoer in his individual capacity. For the groundwork of the bill, whether it be regarded as directed against the officer or the State, is, that the transaction throughout was void, as ultra vires the corporation. And this presents the next question to be considered. That question arises and is to be determined upon the following statement of facts. The Boston, Hartford & Erie Railroad Company was originally created a corporation by the laws of Connecticut. Its charte! conferred authority upon it in these terms: “ Said Boston, Hartford and Erie Railroad Company may purchase . . . the franchise, the whole or any part of the railway or railway property of any railroad company, located in whole or in part in this State, whose line, or a portion of whose line, of railway, constructed or chartered, now forms part of a railway line from the harbor of Boston, passing through Thompson to Willimantic, and from Providence through Willimantic to Hartford, Waterbury, and thence toward the North River, with CLARK v. BARNARD. 449 Opinion of the Court. the purpose of reaching a point at or near Fishkill, in the State of New York; . . . and said Boston, Hartford and Erie Railroad Company may make any lawful contract with any other railway company with which the track of said railroad may connect, in relation to the business or property of the same ; and may take lease of any railroad, or may lease their railway to, or may make joint stock with, any connecting railway company in the line of, and forming a necessary part of, and running in the same general direction as, their said route, and between its terminal points.” In pursuance of this authority, the Boston, Hartford & Erie Railroad Company purchased the franchises and railroad of the Hartford, Providence & Fishkill Railroad Company. This latter company was a consolidated corporation, deriving its existence and powers from the laws both of Connecticut and Rhode Island, whose road, as defined in the acts of incorporation, constituted a line within the general description contained in the section from the charter of the Boston, Hartford & Erie Railroad Company, already quoted. By a subsequent act of the legislature of Rhode Island, the sale and transfer of the Hartford, Providence Fishkill Railroad, its property and franchises, to the Boston, Hartford & Erie Railroad Company was ratified and confirmed, so far as said railroad was situated in that State; and it was thereupon further enacted, that the “said Boston, Hartford & Erie Railroad Company, by that name, shall and may have, use, exercise and enjoy all the rights, privileges, and powers heretofore granted and belonging to said Hartford, Providence & Fishkill Railroad Company, and be subject to all the duties and liabilities imposed upon the same by its charter and the general laws of this State.” The Hartford, Providence & Fishkill Railroad Company was, without question, so far as it owned and operated a railroad within the State of Rhode Island, a corporation in and of that State; and the Boston, Hartford & Erie Railroad Company became its legal successor in that State, as owner of its property, and exercising its franchises therein, and became, therefore, in its respect to its railroad in Rhode Island, a corporation in and of that State. vol. cviii—29 450 OCTOBER TERM, 1882. Opinion of the Court. Thereafter, in January, 1869, the legislature of Rhode Island passed the act out of which the present litigation has grown, entitled “ An Act in addition to an act entitled ‘An Act to ratify and confirm the sale of the Hartford, Providence & Fishkill Railroad to the Boston, Hartford & Erie Railroad Company.’ ” In its first section it is enacted as follows: “ The Boston, Hartford and Erie Railroad Company, a corporation created by the general assembly of the State of Connecticut, are hereby authorized and empowered to locate, lay out, and construct a railroad in extension of their line of railroad by them purchased of the Hartford, Providence and Fishkill Railroad Company, commencing at a point in their said purchased railroad at or near their freight depot in the city of Providence, thence running westerly and northerly by a line westerly of the State prison, a little easterly of the Rhode Island Locomotive Works, and thence by nearly a straight line, and crossing or running near to Leonard’s Pond (so called), and then passing between the villages of Pawtucket and Lonsdale, and over and above the Providence and Worcester Railroad; thence continuing to the easterly line of the State in or near the villageof Valley Falls, there to meet and connect with a railroad extending westerly through North Attleborough, from the direction of Boston, authorized by the Commonwealth of Massachusetts.” The eighth section of the act is as follows: c< Said railroad, when the same shall have been constructed, shall be managed and protected in all respects according to the provisions of, and be subject to, an act entitled ‘ An Act to incorporate the Providence and Plainfield Railroad Company,’ and the several acts in addition to and amendment thereof, and the general laws of the State.” The act thus referred to as the “ act to incorporate the Providence & Plainfield Railroad Company,” was the charter of the corporation by that name, in the State of Rhode Island, that, by consolidation with a Connecticut company, formed the Hartford, Providence & Fishkill Railroad Company. CLARK v. BARNARD. 451 Opinion of the Court. The twelfth section of the act, recited in the complainant’s bill, is as follows : “ This act shall not go into effect unless the said Boston, Hartford & Erie Railroad Company shall, within ninety days from the rising of this general assembly, deposit in the office of the general treasurer their bond, with sureties satisfactory to the governor of this State, in the sum of one hundred thousand dollars, that they will complete their said road before the first day of January, A. d. 1872.” This act of the legislature of Rhode Island was duly accepted by the stockholders of the Boston, Hartford & Erie Railroad Company ; the bond required by the twelfth section, as already set out, was executed and delivered ; and the certificate of indebtedness, in lieu of sureties, was given by the company and accepted by the State. It is now argued by counsel for the appellees, that the party which, in all these transactions, was dealing with the State of Rhode Island was the Boston, Hartford & Erie Railroad Company, in its character as a corporation of the State of Connecticut ; that, as such, it had no power, under the charter granted by that State, to build or own a railroad directly connecting Boston and Providence, nor had it, as such, any capacity to receive a grant of such a franchise ; that, consequently, everything done or attempted in that behalf was ultra vires and void. But the Boston, Hartford & Erie Railroad Company was also a corporation of Rhode Island. As such, it owned and operated a railroad within that State, and had received and exercised franchises under its laws, to which it was in all respects subject. It was the assignee of the road and rights connected therewith, formerly belonging to the Hartford, Providence & Fishkill Railroad Company ; and it was this corporation, dwelling and acting in Rhode Island, that the legislature, by the act in question, authorized to exercise the additional powers it conferred. If it had had no previous existence as a corporation under the laws of Rhode Island, it would have become such by virtue of the act in question. For although as a Connecticut corpora- 452 OCTOBER TERM, 1882. Opinion of the Court. tion, it may have had no capacity to act or exist in Rhode Island for these purposes, and no capacity by virtue of its Connecticut charter, to accept and exercise any franchises not contemplated by it, yet the natural persons, who were corporators, might as well be a corporation in Rhode Island as in Connecticut ; and, by accepting charters from both States, could well become a corporate body, by the same name and acting through the same organization, officers and agencies, in each, with such faculties in the two jurisdictions as they might severally confer. The same association of natural persons would thus be constituted into two distinct corporate entities in the two States, acting in each according to the powers locally bestowed, as distinctly as though they had nothing in common either as to name, capital, or membership. Such was in fact the case in regard to this company, so that in Rhode Island it was exclusively a corporation of that State, subject to its laws and competent to do within its territory whatever its legislation might authorize. “Nor do we see any reason” [as was said by this court, Mr. Justice Swayne delivering its opinion, in Railroad Company v. Harris, 12 Wall. 65-82], “why one State may not make a corporation of another State, as there organized and conducted, a corporation of its own, quo ad any property within its territorial jurisdiction. That this may be done was distinctly held in The Ohio and Mississippi Railroad Company n. Wheeler, 1 Black, 297.” The same view was taken in Railway Company v. Whitton, 13 Wall. 270; in Railroad Company n. Yance, 96 IT. S. 450; and in Memphis and Charleston Railroad Company n. Alabama, 107 IT. S. 581. The question of the powers of the Boston, Hartford & Erie Railroad Company, as a corporation in Rhode Island and the legal effect of its acts and transactions performed in that State, is to be determined exclusively by the laws of that State, and not by those of Connecticut, which have no force beyond its own territory. It results, therefore, that the doctrine of ultra vires, as here urged by the appellees, has no place in this controversy. CLARK v. BARNARD. 453 Opinion of the Court. It is, however, urged on behalf of the appellees—and this was the ground on which the decree below proceeded—that the obligation required by the statute and given by the company, was a bond, in the penal sum of $100,000, conditioned that the company would completely build its road within the period limited, upon which no recovéry can be had, except for such damages as may be shown to have resulted to the State of Rhode Island from the breach of its condition ; that no damage on that account is proven, it being in fact admitted that none actually resulted ; that the certificate of indebtedness and the fund which has arisen from its payment, were pledged merely, in lieu of sureties, as collateral security for the satisfaction of the bond ; and that, consequently, the claim of the State of Rhode Island against it having thus failed, that fund reverts to the appellees. The proposition of counsel for the appellees, as stated by them, is, that, “ from a period at least as early as the year 1650 down to the present time, bonds have constituted a distinct class of instruments, the effect of which is always the same, in the same sense that the effect of a conveyance to A and his heirs is always the same. Such is the rule of equity. Such was the effect of the statutes. Consequently, if in a particular case, parties have expressed their obligation in the form of a bond, their liability is thereby determined to be an obligation to perform the condition or pay the damages actually sustained from non-performance thereof ; ” and as a statement of the rule, they cite the following passage, 2 Sedgwick MeaS. Dam. (Tth ed.) 259, note : “ Of course, in this class of agreements, as in all others, when the contract takes the ordinary form of a penal bond, the sum fixed will invariably be regarded as a penalty ; and this might well be put, at the present day, on the ground of intention, as derived from the writing itself, for this form of instrument is in such common use that persons who resort to it must be held to have in view its legal consequences.” While this may be accepted as a sufficiently accurate statement of the general rule, as to bonds with conditions, designed 454 OCTOBER TERM, 1882. Opinîbn of the Court. as an indemnity between private persons for non-performance of a collateral agreement, yet, in respect to such cases, it cannot be considered as universally true. “ It is often a doubtful question ” [said the Supreme Judicial Court of Massachusetts in Hodges n. King, 7 Met. 583-587], “ whether the sum stipulated to be paid on the non-performance of a condition is in the nature of a penalty, or is the amount settled by the parties for the purpose of making that certain which would be otherwise uncertain. . . . The bond has indeed a condition; but that is a matter of form and cannot turn that into a penalty which, but for the form, is an agreement to pay a precise sum under certain circumstances.” So that it cannot correctly be said to be true, in all such cases, that the intention to treat the sum named in the bond as a penalty to secure the performance of the condition, and to be discharged on payment of damages arising from non-performance, can be inferred as a rule of law, or a conclusive presumption, from the mere form of the obligation. Originally, at law, in case of breach of the condition of a bond, the amount recoverable was that named in the obligation. So that, if the condition is impossible either in itself or in law, the obligation remains absolute. As “ if a man be bound in an obligation, etc., with condition that if the obligor do go from the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, that then the obligation shall be void. The condition is void and impossible and the obligation standeth good.” So, again, if the condition is against a maxim or rule in law, as, “ if a man be bound with a condition to enfeoff his wife, the condition is void and against law, because it is against the maxim in law, and yet the bond is good.” Co. Litt. 206 b. So, where the condition is possible at the date of the instrument and becomes impossible subsequently, the obligation does not become thereby discharged, unless the impossibility of performance was the act of God, or of the law, or of the obligee. Accordingly, it was held by this court in Taylor n. Taint or, 16 Wall. 366, that when a person arrested in one State on a criminal charge, and released under CLARK v. BARNARD. 455 Opinion of the Court. his own and his bail’s recognizance, that he will appear on a day fixed and abide the order and judgment of the court, goes into another State, and while there, is, on the requisition of the governor of a third State, for a crime committed in it, delivered up, and is convicted and imprisoned in such third State, the condition of the recognizance has not become impossible by act of law so as to discharge the bail; “ the law which renders the performance impossible, and therefore excuses failure, must be a law operative in the State when the obligation was assumed and obligatory in its effects upon her authorities.” The ground, nature, and limits of the jurisdiction of courts of equity to relieve against penalties in such instruments is well stated by Mr. Justice Story, in this language: “ In short, the general principle now adopted is that, wherever a penalty is inserted merely to secure the performance or enjoyment of a collateral object, the. latter is considered as the principal intent of the instrument, and the penalty is deemed only as accessory, and, therefore, as intended only to secure the due performance thereof or the damage really incurred by the non-performance. In every such case the true test generally, if not universally, hy which to ascertain whether relief can or cannot be had in equity, is to consider whether compensation can be made or not. If it cannot be made, then courts of equity will not interfere. If it can be made, then, if the penalty is to secure the mere payment of money, courts of equity will relieve the party, upon paying the principal and interest. If it is to secure the performance of some collateral act or undertaking, then courts of equity will retain the bill, and will direct an issue of quantum damnificatus ; and when the amount of damages is ascertained by a jury, upon the trial of such an issue, they will grant relief upon the payment of such damages.” Story’s Eq. Jur. § 1314. And Mr. Adams, in his Treatise on Equity, 6th Am. ed. 107, says, on the same subject: “ The equity for relief against enforcement of penalties originates in the rule which formerly prevailed at law, that, on breach of a contract secured by penalty, the full penalty might be enforced, without regard to the damage sustained. The court of 456 OCTOBER TERM, 1882. Opinion of the Court. chancery, in treating contracts as matters for specific performance, was naturally led to the conclusion that the annexation of a penalty did not alter their character ; and, in accordance with this view, would not, on the one hand, permit the contracting party to evade performance by paying the penalty; and, on the other hand, would restrain proceedings to enforce the penalty on a subsequent performance of the contract itself, viz., in the case of a debt, on payment of principal, interest, and costs ; or in that of any other contract, on reimbursement of the actual damage sustained.” It has accordingly been uniformly held, in cases too numerous for citation, that courts of equity will not interfere in cases of forfeiture for the breach of covenants and conditions where there cannot be any just compensation decreed for the breach; for, as was said by Lord Chancellor Macclesfield, in Peachy v. Duke of Somerset, 1 Strange, 447; 7?. C. Prec. Ch. 568, 2 Eq. Ca. Abr. 227, “ it is the recompense that gives this court a handle to grant relief.” The application of this principle becomes more manifest in cases where a public interest or policy supervenes, as where, for non-compliance by stockholders in corporations engaged in undertakings of a public nature, with the terms of payment of instalments due on account of their shares, by which a forfeiture of the stock and of all previous payments thereon has been incurred and declared, the courts refuse to grant relief. SparksN. Proprietors of Liverpool WaterWorks, 13 Ves. 428; Prendergast v. Turton, 1 You. & Col. Ch. 98; Naylor n. South Devon Pailway Company, 1 DeG. & Sm. 32; Sudlow n. The Dutch Rhenish Railway Company, 21 Beav. 43. In the case of Sparks v. Proprietors of Liverpool Water Works, 13 Ves. 433, Sir Wm. R. Grant, M. R., said: “ The parties might contract upon any terms they thought fit, and might impose terms as arbitrary as they pleased. It is essential to such transactions. This struck me as not like the case of individuals. If this species of equity is open to parties engaged in these undertakings, they could not be carried on. . . . “ Why is not this equity open to contractors for gov- CLARK v. BARNARD. 457 Opinion of the Court. eminent loans ? Why may not they come here to be relieved when they have failed in making their deposit ? And if they could have relief, how could government go on ? It would be just as difficult for these undertakings to go on. If compensation cannot be effectually made it ought not to be attempted.” Accordingly, where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the penalty or forfeiture, if incurred, for it would be in contravention of the direct expression of the legislative will. Story’s Eq. Jur. § 1326. Lord Chancellor Macclesfield said in Peachy v. Duke of Somerset, 1 Strange, 447-453: “ Cases of agreements and conditions of the party and of the law are certainly to be distinguished. You can never say the law has determined hardly, but you may that the party has made a hard bargain.” In Powell v. Redfield, 4 Blatchford, 45, an application was made in equity to restrain suits upon a bond given in pursuance of the revenue laws of the United States, which was denied on the ground that a court of equity had no right to interfere and, by injunction or decree, to virtually repeal the express provisions of a positive statute, or defeat their operation in the particular case. In Benson v. Gibson, 3 Atk. 395, Lord Hardwick said: “Nor is it like the case of bonds given as a security not to defraud the revenue, because there, where a person is guilty of a breach, it is considered in law as a crime, and this court will not relieve for that reason.” The case of Treasurer v. Patten, 1 Root, 260, was an action for the penalty of a bond given to oblige the defendant to observe the laws respecting excise, in which there was a verdict for the plaintiff and the £200 penalty. Defendant moved the court, says the report, to chancer said bond : “By the court: There is no power short of the legislature can do it; for it is the sum prescribed by an act of the legislature.” 458 OCTOBER TERM, 1882. Opinion of the Court. So in Keating v. Sparrow, 1 Ball & Beatty, 367—373, the Lord Chancellor Manners said: “ It has been argued on the part of the plaintiff that this court leans against forfeiture, if the party can be compensated ; and that he can in this case, where interest and septennial fines maybe given to the landlord. That principle is applicable to cases of contract between the parties, but not to the provisions of an act of Parliament or conditions in law.” The fact that the obligation, is in the form of a bond to the State does not make its penalty less a statutory forfeiture, and so outside the jurisdiction of a court of equity. In the case of The United States v. Montell, Taney, 47, it was held that the sum secured by a bond with sureties, under the act of Congress of December 31st, 1792, ch. 1, sec. 7,1 Stat. 290, conditioned that the registry of a vessel should be used solely for the 'Vessel for which it was granted, and should not be disposed of to any person whatsoever; and if the vessel be lost, or prevented by disaster from returning to the port, and the registry shall be preserved, or if the vessel be sold, that the registry shall be delivered up to the collector, is a penalty or forfeiture inflicted by the sovereign power for a breach of its laws, not a liquidated amount of damages due under a contract, but a fixed and certain punishment for an offence, and not the less so, because security is taken before the offence is committed, in order to secure the payment of the fine if the law should be violated. Chief Justice Taney, in his opinion, said: “ Penalties and forfeitures imposed by statute are not usually-provided for by bond and security given in advance. The sum recovered from Montell is recovered upon a contract; the action was brought upon a contract, and was not and could not have been brought in any of those forms which are usually necessary for the recovery of fines or forfeitures imposed by law. Yet this sum was, in truth, forfeited by Montell, by reason of his violation of a duty imposed by the act of Congress ; it was a specific penalty upon the owner and master, for the commission of a particular offence against the policy of that law. And although the amount was secured by bond given for the performance of the CLARK v. BARNARD. 459 Opinion of the Court. duty, yet this duty was a part of the same policy with other duties mentioned in the act and for which other penalties are inflicted. . . . “It certainly is not to be regarded as a bond with a collateral condition, in which the jury are to assess the damages which the United States shall prove that they have sustained ; for according to that construction, the amount of damages would not depend upon the amount of the penalty described in the section, which is graduated according to the size of the vessel, but would depend upon the discretion of different juries, and larger damages might be given where the penalty was only four hundred dollars, than in a case where the penalty was two thousand dollars. This, obviously, is not the intention of the law, and the United States are entitled to recover the whole sum for which the party is bound, if any one of the conditions are broken. Besides, how could the United States prove any particular amount of-damages to have been sustained by them in a suit on this bond ? What do they lose ? It would be difficult, we think, by any course of proof or any process of reasoning, to show that the United States had sustained any particular amount of damages in a case of this description, or, to adopt any rule by which the damages could be measured by a jury, or be liquidated by agreement between the parties. “ The sum for which the parties are to become bound, is manifestly a penalty or forfeiture, inflicted by the sovereign power for a breach of its laws. It is not a liquidated amount of damages due upon a contract, but a fixed and certain punishment for an offence. And it is not the less a penalty and a punishment, because security is taken before the offence is committed, in order to secure the payment of the fine if the law should be violated.” Recurring now to the particular circumstances of the present case, with a view to the application of these principles and decisions, we are satisfied that the proper solution of the question now under examination is to be found in two principal considerations. The first of these is, that it was not intended by the parties, the State of Rhode Island on the one hand, and the Boston, Hartford & Erie Railroad Company on the other, that the ob- 460 OCTOBER TERM, 1882. Opinion of the Court. ligation given and accepted should be for an indemnity against any loss or damage expected to be suffered by the State, in the event that the railroad company should fail to build the railroad as required. It is found as a fact that no such loss or damage has in fact ensued. It is equally plain that none could possibly have arisen. The security is not to be extended to any supposed damage to private interests legally affected by the process of constructing the work. All damage of this kind to private persons was carefully provided for in other parts of the act. As to the State itself, the real party to the arrangement and contract, it could gain nothing in its political and sovereign character by the construction of the road, it could lose nothing by the default. If it could be supposed as possible that the State had in view the public interests of commerce and trade in the construction of the proposed railroad, and meant to provide for loss and damage to them by reason of its failure, the obvious answer is that no computation and assessment of actual damages on that account would be practicable, leaving as the alternative that the State, in fixing the penalty of the bond in the statute, had established its own measure of the public loss. The question of damages and compensation was not, because it could not have been, in contemplation of the parties. There was no room for supposing that there could be any. To assume that the statute required this bond and security in this sense, in full view of the legal conclusion which it is said necessarily flows from its form, and that in the event contemplated, of the failure to build the road, all that remained to be done was that the State should hand back cancelled the obligation and security it had been at such pains to exact, is to put upon the transaction an interpretation altogether inadmissible. It would have been, upon such an assmnptipn, a vain and senseless thing, and however private persons may be sometimes supposed to act improvidently, we are not to put such constructions, when it is legally possible to avoid them, upon the deliberate and solemn acts and transactions of a sovereign power, acting through the forms of legislation. The conclusion, in our opinion, cannot be resisted that the intention of the parties in the transaction in question was that, if the railroad should CLARK v. BARNARD. 461 Opinion of the Court. not be built within the time limited, the corporation should pay to the State, absolutely and for its own use, the sum named in the bond and- secured by the deposited certificate of indebtedness. The supposition is not open that the penalty was prescribed merely in terrorem, to secure punctuality in performance, with the reserved intention of permitting subsequent performance to condone the default, for a distinct section of the statute (sec. 9) declares that in case of failure to complete the road within the time limited, the act itself should be -void and of no effect. In the second place, we think, that the sum named in the statute is imposed by it as a statutory penalty for the non-performance of a statutory duty. The obligation required is that the railroad company shall give a bond, with satisfactory security, that they will obey the law, that they will complete their road as required by it. The language evidently means that, in case they fail to do so, they shall forfeit and pay the sum named ; and in order to insure its. payment, additional parties to the bond, as sureties, are required. It is admitted, that if it does not mean this, it does not mean anything, and we have already said that we are nbt at liberty to adopt that alternative. We must construe it, ut res magis valeat guam pereat ; and the rule of strictness, in the construction of penal statutes, does not require an interpretation which defeats the very object of the law. The State of Rhode Island was dealing with one of its own corporations, and it had perfect right to act upon its own policy and prescribe its own terms, as conditions of powers and privileges sought from its authority. For these reasons the decree of the circuit court is reversed, and the cause is remanded with instructions to enter a decree in favor of the State of Rhode Island for the sum of $100,000, payable out of the fund in court, with so much interest thereon, if any, as has accrued on that sum since the 1st day of January, 1872, which is the date when the amount became due. And it is accordingly so ordered. 462 OCTOBER TERM, 1882. Statement of Facts. MANNING & Another v. CAPE ANN ISINGLASS & GLUE COMPANY & Others. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS. Decided May 7th, 1883. Patent. The facts in this case show a public use of the alleged invention for more than four years prior to the date of the patent. This was a suit brought by the appellants, John J. Manning and Caleb J. Norwood, to restrain the infringement by the appellees of letters patent dated January 7th, 1873, issued to the appellants and W. N. Manning, as assignees of the inventor, James Manning. -By the subsequent assignment of W. N. Manning the appellants became vested with the title to the entire patent. It is well known that the swimming-bladders or sounds of certain fishes are largely composed of that variety of gelatin called isinglass. The sounds are usually found in the market in a dry and hard state. They are manufactured into isinglass by a mechanical operation which consists in passing the macerated sounds successively between several sets of rollers, the first set kneading the sounds into a homogeneous sheet, and the subsequent sets squeezing and elongating the sheets into the ribbons of isinglass known to commerce. The invention covered by the patent sued on was for “ an improvement in the manufacture of isinglass from fish sounds.” The specification of the patent declared as follows: “ In the manufacture of ribbon isinglass from fish sounds it is customary to feed the softened and moist or macerated sounds to and between feed and compressing rollers, by which the viscid substance is compressed and joined and formed into a continuous sheet. Notwithstanding the constant application of cold water into the rolls, the substance adheres tenaciously to the roll and MANNING v. CAPE ANN ISINGLASS & GLUE CO. 463 Statement of Facts. accumulates thereupon, and has to be cut away therefrom, an operation which is very slow and laborious and productive of imperfect sheets. “ My invention is designed to obviate the return of the adhering gelatinous substance to the action of the rolls before it is stripped therefrom, and to so strip it that the rolls may work continuously or without stoppage, the ribbon, as it is stopped, being again fed or guided by the operator into and between the rolls until sufficiently reduced or elongated for removal or for the action of other rolls set nearer together to produce a thinner ribbon. “ To effect this result I place at the side of each roll a scraper extending the whole length of the roll, and having an edge set up to the roll, so that the roll shall run just clear of it, which scraper or cleaner strips from the whole surface of the roll the adhering gelatine in the form of a sheet. “ The invention consists in this method of passing the isinglass between hollow rolls, cooled by water thrown into the rolls, and then stripping the gelatinous matter from the rollers and returning it to the hopper to be again treated, the rollers being adjustable.” The claim was as follows: “ The herein described method of converting isinglass into sheets of any desired thickness by running it between hollow rolls into which cold water is thrown to cool the compressing surfaces, such rolls being preferably made adjustable to graduate the degree of compression, and the adhering sheets being removed from the rolls by stationary scrapers or clearers and returned to the hopper as required.” One of the defences set up in answer and relied on was that the improvement described in the patent had been in public use for more than two years before the patent was applied for. The circuit court dismissed the bill on that ground. From its decree this appeal was prosecuted by the complainants. Mr. Thomas William Clarke for appellants. Mr. George L. Roberts for appellees. 464 OCTOBER TERM, 1882. Opinion of the Court. Mr. Justice Woods delivered the opinion of the court. We think that the defence, that the improvement described in the patent had been in public use for more than two years prior to the application therefor, is established by the testimony. The appellants contend that the patent covers an improvement in the process of making isinglass. It is not contended that the patent covers the rolls between which the fish-sounds are passed, or the keeping of the rolls cool by making them hollow and injecting a stream of cold water into the cavity, nor the automatic scrapers, but in the use of automatic scrapers applied to such rolls to prevent the isinglass from being carried through the rolls a second time without aeration. The testimony shows that, as early as the year 1860, James Manning, the inventor, was engaged in the manufacture of isinglass at Ipswich, Mass., in copartnership with his brother-in-law, Caleb Norwood, under the same of Norwood & Manning. In that year Oliver C. Smith, a machinist at Salem, constructed for the firm a machine containing adjustable hollow water-cooled rolls, with stationary scrapers, substantially such as are described in the patent, for converting isinglass into sheets in the manner therein set forth. The use of this machine was continued down to the year 1867, when the firm of Norwood & Manning was dissolved. In the division of the assets of the firm between the partners, the machine with the scraper, made by Smith, fell to Norwood. He took into the business with him as a partner his son, Caleb J. Norwood, and continued it in the same factory from 1867 to 1870, using the machine with the stationary scraper which had been made by Smith. James Manning, after the dissolution of the firm of Norwood & Manning, established an isinglass factory at Rockport, Mass., and procured to be constructed two machines' similar to that disclosed in the patent. With this factory and machinery he set up in business his two sons, John J. Manning and William N. Manning, and they carried on the business of manufacturing isinglass, under the name of J. J. Manning & Brother, from the year 1868 until the testimony in this case was taken in 1877, using the two machines with scrapers above mentioned. James Manning, the inventor, had no interest in the business carried MANNING v. CAPE ANN ISINGLASS & GLUE CO. 465 Opinion of the Court. on by Norwood and his son after the dissolution of the firm of Norwood and Manning in 1867, nor in the business of J. J. Manning & Brother, carried on from 1868 until after the issue of the patent. Some attempt is made to show that the use of the machines in the factory of Caleb Norwood, from 1867 to 1870, was a secret and not a public use. But we think the testimony shows a use open to the public generally. But whether this be so or not is immaterial, for Norwood and his son were allowed by the inventor the unrestricted use of the patent during the period mentioned, without injunction of secrecy or other condition. This is sufficient to constitute a public use. Egbert v. Lippman, 104 U. 8. 333. The decided weight of the evidence shows that there was also a public use of the invention in the factories of J. J. Manning & Brother for more than four years prior to the application for the patent, namely, from 1868 to 1873. It is also made clear by the testimony, not only that the machinery, but the process used by Norwood & Manning from 1860 to 1867, by Norwood & Son from 1867 to 1870, and by J. J. Manning & Brother from 1868 to 1873, and after that year was substantially the same as that described in the patent. During all these years there was no material change, either in the machinery or the process. The use of the machinery and process was not, therefore, an experimental use. These conclusions of fact are fatal to the complainant’s case. It is the policy of the patent laws to forbid the issue of a patent for an invention which has been in public use before the application therefor. The statute of 1836, 5 Stat. 117, section 6, did not allow the issue of a patent when the invention had been in public use or on sale for any period, however short, with the consent or allowance of the inventor; and the statute of 1870, 16 Stat. 201, section 24; Rev. Stat. § 4886, does not allow the issue, when the invention had been in public use for more than two years prior to the application, either with or without the consent or allowance of the inventor. Under either of these statutes the patent relied on in this case was nnprovidently issued, for there was a public use, with the con- vol. cvni—30 466 OCTOBER TERM, 1882. Statement of Facts. sent of the inventor, for more than two years prior to the application. The patent is threefore void. McClurg v. Kingsland, 1 How. 202; Egbert v. Lippman, ubi supra; Consolidated Fruit Jar Co. v. Wright, 94 U. S. 92; Worley v. Tobacco Co., 104 U. S. 340. The decree of the circuit court must be affirmed. DOWNTON v. YEAGER MILLING COMPANY. APPTCAT, FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Decided May 7th, 1883. Patent—Printed Publication. 1. The doctrine reaffirmed that the earlier printed and published description of a subject of a patent which is put in evidence to invalidate a patent must be in terms that would enable a person skilled in the art or science to which it appertains to make, construct and practise the invention as completely as he could do by the aid of information derived from a prior patent; and that unless it is sufficiently full to enable such person to comprehend it without assistance from the patent, or to make it or repeat the process claimed, it is insufficient to invalidate the patent. 2. Applying the doctrine to this case, the appellant’s patent held to be yoid. The appellant was the complainant in the circuit court. He filed his bill to restrain the infringement by the appellee of certain letters patent, for which he made an application on March 20th, 1875, and which were issued to him on April 20th following, for an “ improvement in processes of manufacturing middlings flour.” The state of the art, and the purpose of the improvement which the patent was intended to cover, were set forth in the specification, as follows: “ This invention has for its aim the better working or manipulating of grain particles known as middlings, for their reduction into meal or flour. “ To fully set forth the advantages that this process possesses DOWNTON v. YEAGER MILLING CO. 467 Statement of Facts. over any of the various processes previously known and in use, it will be necessary to previously describe the manufacture as now practised. “ It is customary under the ordinary mode of milling to separate and purify the middlings by the action of air alone, or air and bolting-cloth combined; then to convey the purified product to millstones to be ground to a sufficient fineness to admit of the passage of the middlings flour through the meshes of the boltingcloth, which is used as a finishing-preparer between the stones and the flour barrels or sacks receiving the finished product. In some cases the middlings that are not sufficiently reduced to go through the meshes of the cloth, pass through the ends of the flour-bolts, and are brought back into some of the various purifiers, and subjected to repurification. This process requires much careful manipulation, and even then the yellow germ and pellicle of the grain will be so torn and pulverized by the stones that loose portions of the same will pass through the meshes of the bolting-cloth, into the flour, with injurious effect. The reason why the germ and pellicle is so torn is that millstones are composed of two disks—one revolving, the other stationary—receiving the material to be ground at the eye or centre of the stones, and compelling it by centrifugal force to escape at the skirt or periphery of the stones, passing alternately over face and furrow until it reaches the periphery, where it is discharged. Such action comminutes the germs and forms specks that cannot be removed by the purifiers, and are, therefore, ground in with the flour. “In the manufacture of middlings flour the action of stones on the middlings is not different from their action on grain, but in the wheat-stones the germ ends and bran are not sufficiently comminuted by one grinding to pass through the meshes of the cloth used for the flour known to the trade as ‘ first run.’ I propose to arrest and remove such germ matter and bran particles by my improved process before they reach the second grind on the middlings-stones, by placing between the purifiers or separators and middlings-stones one or more sets of rolls, which will operate to reduce the large middlings by a bruising or crushing action, while they simply flatten out the intermixed germs and bran. Any of the various purifiers or separators in public use may be employed. A second important advantage or result of this improved process is the production of a large yield of high-grade 468 OCTOBER TERM, 1882. Statement of Facts. flour. The large middlings or glutinous particles of the grain require more grinding than do the finer and more starchy particles removed at the head or first part of the purifiers ; and when ground together, as is generally the case with small mills, and frequently the case with large mills, the meal is considerably heated in the grinding, owing to the miller’s requiring the middlings meal to be of uniform fineness. The disposition and fineness of the small middlings cause them to ‘ flour ’ quicker than the large middlings, therefore the grinding is unequal, as, in order for the large glutinous middlings to be ground enough, the small starch middlings must be ground too much. This impairs the quality of the flour by deadening it, as -well as by reducing the germs and bran to such an extent as to cause them to pass through the- cloth. Some mills, therefore, run the coarsest middlings to a lower grade of flour. “ It is plain that with an intermediate reduction, by the flattening-rolls working on the large middlings as above set forth, the comminution of the middlings under the stones is rendered more equal, and a larger percentage of high-grade flour can be made. “ I will now describe briefly my mode of milling, referring, for illustrations, to the accompanying drawing, in which— “ Fig. 1 is a general side view, partly in section, showing an apparatus, or a series of machines, comprising a section of my purifier A ; and Fig. 2 is a like view of the same apparatus, in part, illustrating the employment of any other purifier, A2. “ Naturally the germs and bran are kept with the large and valuable middlings or particles of grain by the bolting-cloth of the purifying machines or flour-bolts till they reach certain parts, where the middlings are subjected to strong currents of air to remove light bran-flakes and fuzzy matter. The partially-freed middlings are now passed from the purifier A, or A , between rolls or uniformly rotating surfaces, B, where the good middlings particles, being more brittle, are reduced to small granules, or to flour, while the germ and heavy bran matter, being o a soft, plastic nature, is flattened out, so that on passing it into a reciprocating or revolving bolt, C, clothed with suitable cloth, the flouring matter is thoroughly removed through the meshes of the cloth in a fit state of purity to pass to the stones D to be reground as usual, and the injurious germs and refuse matter are arrested, so as to be run off into suitable receptacles.” DOWNTON v. YEAGER MILLING CO. 469 Opinion of the Court. The claim was stated as follows: “ The following is claimed as new, namely : “ The herein-described process of manufacturing middlings flour by passing the middlings, after their discharge from a purifier, through or between rolls, and subsequently bolting and grinding the same for the purposes set forth.” The answer of defendant set up, among other things, as matter of defence, want of novelty, and vagueness and uncertainty in the specifications and drawings filed by the patentee to describe his invention. The circuit court sustained both these defences and dismissed the bill. The complainant appealed. Mr. Geo. Harding and Mr. W. G. Rainey for appellant. Mr. F. IF. Cotzhauser and Mr. Robert H. Parkinson for the appellee. Mk. Justice Woods delivered the opinion of the court. A grain of wheat may be described generally as follows: It consists of a pellicle or outside covering known as bran, an inner envelop consisting of cells and their contents of gluten and phosphates, the most nutritious portion of the berry, and an interior white mass composed mainly of starch and albuminoid matter, extending to the heart of the berry. At one end of the berry, under an irregularly-curved surface layer of bran, technically called the shield, is the embryo or germ. The germ is a yellow, waxy substance, and the bran is consistent and tough. It has always been the aim of good milling to separate as completely as possible the bran and germ from the other contents of the berry, because they not only gave color to the flour, but rendered it more liable to sour. The main purpose of the improvement described in appellant^ .letters patent was to accomplish this result by removing the bran and germ from the coarse middlings, leaving only those parts of the grain from which pure white flour could be produced. The improvement consisted in a process, and did not cover the several devices by which the process was carried on. 470 OCTOBER TERM, 1882. Opinion of the Court. The process was as follows: Coarse middlings, from which the fluffy matter had been eliminated by a well-known contrivance known as a purifier, were passed between one or more sets of rolls which reduced the large middlings to a greater degree of fineness, but flattened out the tough and waxy germs and bran. After the middlings, with the intermixed germs and bran particles, had been passed between the rolls, they were carried to a bolting-cloth. This allowed the comminuted middlings to pass through its meshes, whence they were carried to the stones “ to be reground as usual,” but the germs and bran particles having been flattened and their surfaces enlarged by the rolls, could not get through the bolting-cloth, and were carried to the end of the bolt, and then run off into suitable receptacles. It will be observed that all the separate parts of this process are old. The use of purifiers on middlings to take out the fluffy particles, the use of rolls to comminute middlings, the use of bolting-cloths to separate the bran and germs from the flour, and the use of stones to regrind middlings, all long antedate the patent of the appellant. The only field left for invention, therefore, was either a new order in which the different parts of the process were to be applied, or some new method of using some one or more of the devices by which the process was accomplished, or both these combined, so as to produce some new product, or some old product in a cheaper or otherwise more advantageous method. It is claimed for the appellant that his invention consists “ in interjecting in the old modes, after the purifier, a pair of smooth rolls of equal diameter and running at equal speed, and then rebolting the product and regrinding the middlings” which pass through the bolting-cloth. We are to inquire whether the defence relied on in this case, that the invention claimed as his own by the appellant, had been described in a printed publication before his invention thereof had been made out. By section 24 of the act of 1870 it was provided that any person who had invented any new and useful art, machine, manufacture, or composition of matter not known or used by DOWNTON v. YEAGER MILLING CO. 471 Opinion of the Court. others in this country, “ and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof,” might obtain a patent therefor. In construing the words “ described in any printed publication in this or any foreign country,” as they were used in reference to the same subject in section 7 of the act of 1836, 5 Stat. 117, this court, in the case of Seymour v. Osborn, 11 Wall. 516, said (on page 555): “ Patented inventions cannot be superseded by the mere introduction of a foreign publication of the kind, unless the description and drawings contain and exhibit a substantial representation of the patented improvement in such full, clear and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practise the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent.” So in Cohn v. United States Corset Company, 93 IT. S. 366, Mr. Justice Strong, speaking for the court, said (at page 370): “ It must be admitted that, unless the earlier printed and published description does exhibit the later patented invention in such a full and intelligible manner as to enable persons skilled in the art to which the invention is related to comprehend it without assistance from the patent, or to make it, or repeat the process claimed, it is insufficient to invalidate the patent.” Applying strictly the rule thus laid down, we are of opinion that the defence of prior publication has been made out. After a careful consideration of the evidence in the record, we are forced to the conclusion that the method of making flour set forth in the specification of appellant’s patent was fully and clearly described in a printed publication before the invention thereof by the appellant, and that his patent therefor is consequently void. We refer to a German work put in evidence by the defendant, entitled Die Mehlfabrication, by Frederick Kick, published at Leipsic in 1871. We take the following extracts from a translation of this book. 472 OCTOBER TERM, 1882. Opinion of the Court. “ Part IV., Rough Grinding with Roll Mills : “ In the successive process of grit, or high milling, the grain is crushed in its first passage through between the stones, that is, broken into parts of different sizes—groats. “ In the disintegrating process which follows next, flour, dust, middlings, partings, and breakings are obtained. With each of these substances, classified according to size, particles of the hull of the same size are mixed, or still adhere to the particles of the grist. By this method of crushing with stones, a partial splitting up of the hull is unavoidable, and the flour obtained from such rough grinding is mixed with particles of bran, even from decorticated wheat, and is therefore discolored. “ If one were able wholly to prevent the disintegrating of the particles of the hull, the flour produced by rough grinding would be white. . “This, however, is never fully accomplished; but there is, on the one hand, a way to diminish the friability of the hull —by moistening ; on the other hand many sorts of wheat, under similar treatment, exhibit this difficulty to a less extent, and therefore produce white flour, viz., soft wheat—or, finally, machines are employed which, in the process of rough grinding, break up the hull to a less degree, as is the case with roll mills. “ The roll mills operate partly by crushing and partly by grinding. They produce breakings, which then pass to the stones for grinding into flour. The surfaces of the rolls are smoother than those of the stones, and the hull is, therefore, less torn. Of course the disintegrating by means of rolls is not appropriate for every kind of wheat. If soft, mild wheat is passed through the rolls, it leaves the rolls in a flat, compressed condition, whereas, with the same treatment, hard (Hungarian), wheat is reduced to fragments, and so regularly broken. “ The action of the rolls evidently depends upon their relative position (their distance apart) ; it also depends on the condition of their surfaces (whether smooth or channelled) ; and then again on their relative motion, viz., whether both rolls have like or different velocities. “ If the rolls are so far apart that the wheat sustains only a moderate pressure, and if they are smooth, then only a breaking of the grain occurs in the direction of the crease. The berry is DOWNTON v. YEAGER MILLING CO. 473 Opinion of the Court. thereby divided into two longitudinal halves, of which many still cohere at thé back, thus resembling an open book. “ In case the rolls are closer together, then, with soft wheat a flattening takes place, and the middlings obtained therefrom are very clean or free from bran. Hard wheat is much more considerably reduced, and a proper breaking is effected. . . . Rolls with smooth surfaces operate more by compression—those with fluted surfaces more in a cracking or breaking manner. In order to give the rolls at the same time a triturating effect, they are made to revolve with different velocities. “Two, three pairs of rolls may be arranged'one above another. By the first pair ‘ coarse breakings ’ are produced ; by the second ‘ first breakings,’ etc. Hence, the application of three pairs of rolls permits a gradual disintegration during a single passage of the grain through the roll mill. . . . There are (as we shall explain hereafter) certain varieties of middlings in which the but partially broken germs constitute thirty or forty per cent, of the entire mass, and which being yellow granules, give to the entire mass of grist, with which they are intèrmixed, a yellowish appearance. “ Now, if this kind of middlings is passed through properly adjusted rolls the tough germs are only flattened, while the other granules are broken and can be easily separated by sifting. Instead of a pair of rolls, a single roll operating against an adjustable segment of stone or iron may be used. By this latter method the substance ground is much more subjected to trituration. The particles already reduced continue to rub against each other and against the working parts of the machine until they finally pass out, in consequence whereof the advantages above mentioned of the roll mills are greatly neutralized.” We have, in this publication, an accurate description of the process covered by appellant’s patent. We have the rolls used for the identical purpose therein set forth, namely, to reduce the middlings and to flatten out the germs, so that they can be separated by bolting or sifting, thus preparing the middlings to be again ground and reduced to middlings flour. Appellant insists, however, that the process described by 474 OCTOBER TERM, 1882. Opinion of the Court. Kink is not applied, to purified middlings, and therefore differs from his. But it appears, from the well-known state of the art, that ever since purifiers were invented, it has been the practice to purify middlings before reducing them, so that whenever the grinding of middlings is mentioned, graded and purified middlings are understood. The process of purifying, in case of gradual reduction, is as elementary as bolting, and follows every reduction of the material. When, therefore, Kick speaks of passing middlings through the rolls for another reduction, he must be understood to mean purified middlings. But the evidence in the record clearly shows that the action of the rolls, and their effect upon the product of the mill, would be the same whether purified or unpurified middlings, or even wheat, were used. Appellant further insists that his process differs from that described by Kick, because the rolls mentioned by the latter run at unequal speed. This contention is founded on a misapprehension. The extract from Kick’s work expressly says that “ the action of the rolls evidently depends ... on their relative motion, viz., whether both rolls have like or different velocities.” Rolls, therefore, with the same or different velocities could be used in the process described by Kick. His method included both. We are also of opinion that, the process which appellant claims as his invention was also clearly described as early as the year 1847 in a publication called Anglo-American and Swiss Science Milling by Christian Wilhelm Fritzsch, published at Leipsic by Gustav Brauns. This description of the process of manufacturing flour is illustrated by drawings, which make it perfectly clear that the different parts of the process of the appellant were anticipated and publicly printed more than twenty-five years before the appellant, according to his own story, conceived the improvement described in his patent. Fritzsch describes the process as follows: “ The advantages to be derived from the roll mill consist chiefly in this, that in operating them a considerable saving of power is DOWNTON v. YEAGER MILLING CO. 475 Opinion of the Court. achieved as compared with stone mills. Furthermore, the flour produced is of excellent quality, both in whiteness and fineness. “ Inasmuch as the wheat is ground in a dry state, the flour produced is especially adapted with respect to durability for transportation and storing. “The principle on which all said improvements turn, centres wholly and exclusively in a desire to effect the grinding of wheat, so that not only the largest possible quantity of good middlings flour is obtained, but also that this may be separated from the hull or bran in its original purity ; or to express it in plainer words, to obtain the mealy interior substance without admixture of any part of the hull.” Then follows a description of the mill by which the reduction of the wheat to coarse middlings is effected: “ The rough-ground product discharged from the mill (in which, besides middlings, flour has been produced) is thereupon most conveniently carried into the upper stories of the mill building by means of an elevator, and is then first transferred to a flour cylinder for the purpose of separating the flour. The remainder then goes, upon a grit cylinder, where the material is assorted and separated from the hull in four different grades of middlings. The middlings thus obtained are thereupon likewise cleaned in the manner already described, and prepared for flouring. “ The grinding of middlings takes place by a manipulation varying but little from the process of rough grinding, by means of a flouring mill, which, together with the crushing mill above mentioned, constitutes a set or run. We see this flouring mill upon our plate (fig. 8). Its construction is in the main like that of the other, only the difference that the upper pairs of rolls are not fluted, like those in figure 7, but have smooth turned surfaces, and consequently no under layers (wedges). This under layer (wedge), is only used .with the under .pair of rolls, which are finely fluted. “The middlings ready for grinding are here also put into the hopper, as shown, and carried to the first, second, and third pairs of rolls, in the manner described. The upper two pairs of rolls crush and triturate the middlings to the utmost degree ; there- 476 OCTOBER TERM, 1882.. Opinion of the Court. fore, it remains for the last lower pair of rolls to shake up the flour. “ This product, thus finely ground, is now transferred to the cylinder bolt for separating the flour. The bran-like surplus is carried with the hulls to a stone mill, to be very completely ground out. “ The grinding of middlings in the manner above described has many advantages in its favor—especially in this, that the hull particles still contained in the middlings are, by this process, not any longer decomposed or torn up, whereby the possibility of transfer of them into the flour is avoided.” In this description we have the purifying of the middlings by a purifier which is shown in the cut, then the passing of them between two pairs of smooth revolving rolls of equal diameter, which are in all respects like the rolls described in the specification of appellant’s patent, and which necessarily perform the same function; then the disintegration, or shaking up as it is called, of the ribbons or sheets of the material which come from the second pair of rolls, by passing them through the third pair, which are fluted, but are not allowed to touch each other, and then their transfer to the bolting cylinder, by which the flour is separated from the bran and germs. The only difference between this process and that described in appellant’s patent, is that the last two sets of rolls but one, mentioned in the process described by Fritzsch, completely reduce the middlings to flour, while in the process under appellant’s patent the middlings, after passing between the rolls and being separated from the germs and bran, are again ground between stones; but the great feature of appellant’s process, the flattening of the germs and pellicle by passing the middlings between rolls, is found in the method described by Fritzsch. The advantages from the process described by Fritzsch are identical with those claimed for the process described in appellant’s patent, first, a saving of power; second, the hull of the wheat (and necessarily the germ), is not disintegrated and torn up in passing between the rolls as it would be between the ordinary millstones, and can therefore be eliminated by the bolt; and, third, the yield of high-grade flour is increased, and GROSS v. UNITED STATES MORTGAGE CO. 477 Syllabus. the flour produced is of excellent quality, both in whiteness and fineness and fitness for transportation and storing. The printed publications relied on to defeat the appellant’s patent describe the process covered thereby so fully and clearly as to enable persons skilled in the art to which the invention relates, to carry on the process. In fact, the description of the process in the printed publications is, to say the least, quite as precise, clear, and intelligible as in the specification and claim of the patent. The earliest date at which the appellant claims to have invented his improvement is stated by him as in 1872 or 1873. These publications, therefore, which antedate his invention, one by at least one year, and the other by twenty-five years, are fatal to the validity of the patent. The decree of the circuit court which dismissed the bill must therefore be affirmed; and It is so ordered. GROSS v. UNITED STATES MORTGAGE COMPANY. IN EEROE TO THE SUPEEME 00UET OF THE STATE OF ILLINOIS. Decided May 7th, 1883. Constitutional Law—Illinois—Mortgage—Practice—Statutes. The question considered as to when the opinion of the highest court of a State may be examined for the purpose of ascertaining whether the judgment involves the denial of any asserted right under the Constitution, laws, or treaties of the United States. In view of the statutory requirement that the justices of the Supreme Court of Illinois shall file and spread at large upon the records of the courts written opinions in all cases submitted to it, such opinions may be examined, in connection with other portions of the record, to ascertain whether the judgment or decree necessarily involves a federal question within the reviewing power of this court. The act of the general assembly of Illinois, in force July 1st, 1875, validating loans or investments previously made in that State by corporations of other States or countries authorized by their respective charters to invest or loan money, is not in conflict with the contract clause of the federal Constitution, nor with that part of the Fourteenth Amendment forbidding a State from depriving any person of property without due process of law. 478 OCTOBER TERM, 1882. Statement of Facts. Benjamin Lombard negotiated with the United States Mortgage Company—a corporation of the State of New York, having its principal office and place of business in the city of New York—a loan of $50,000 in gold coin, to be used in the erection of buildings upon certain unimproved lots in the city of Chicago, of which he was the owner in fee. To secure the payment of that sum, with interest, at the rate of nine per cent, per annum, payable semi-annually in gold coin, he executed—his wife joining him—to that company, August 22d, 1872, a mortgage upon the said premises, covenanting therein to pay the debt and interest ; that the premises were clear of all encumbrances ; that he would warrant and defend the same, suffering no impairment of the mortgage security ; and that the mortgage should stand as security for any money paid for taxes or insurance. The mortgage provided that, if default was made in the payment of any interest instalment, or there was a failure to pay the taxes or assessments on the premises, or keep any other covenant contained in the mortgage, that the whole of the debt should become at once due at the option of the mortgage company, with thè right in the latter to sell the property to the highest bidder after thirty days’ advertisement in some paper published in Chicago. The mortgage also contained this clause : “ It is understood and agreed that this mortgage is to be subject to the right of the city to take so much of said lots as shall be necessary for the opening of and extension of Dearborn street, being thirty-six feet, more or less, off the west end of said premises ; in which event any benefit which may accrue to the said party of the first part herein may be paid by the city to said party of the first part direct.” The mortgage, upon the day of its execution, was filed and recorded in the proper office. On the 10th day of December, 1872, Lombard sold and conveyed with warranty the whole of the mortgaged premises together with the buildings which had been erected thereon with the money borrowed from the United States Mortgage Company—to the National Life Insurance Company of Chicago, of which he was president and a principal stock- GROSS v. UNITED STATES MORTGAGE CO. 479 Statement of Facts. holder. That conveyance was made expressly subject to the before-mentioned mortgage. The consideration was $100,173, a part of which was in the assumption of the debt due the-United States Mortgage Company. In part payment also of the purchase money, the insurance company .executed and delivered to Lombard its promissory note for $12,273 (drawn to its own order and by it indorsed in blank), payable three years after date, with interest payable semi-annually at the rate of ten per cent, per annum. To secure the payment of this note the insurance company, on the same day, executed and delivered to one J. L. Lombard, as trustee, a trust deed, conveying the whole of said premises, with covenants of warranty. That deed was duly recorded. Of that note and trust deed Gross subsequently became the owner, the note coming into his possession with the indorsement only of the insurance company. On or about March 17th, 1873, by proper legal proceedings, thirty-five feet off the west end of said lots were condemned by the city for the purposes of a street. The sum of $10,952.73 was awarded as compensation for the ground so taken, and $15,897.84 were afterwards assessed as the value of the benefits to the remaining portion of the premises. Benjamin Lombard made default in the payment of interest due, on and after October 1st, 1873, and failed to pay any taxes or assessments on the property after 1872. On the 1st day of January, 1874, the mortgage company elected to declare the whole debt due. On or about June 1st, 1874, the insurance company was adjudged a bankrupt, and an assignee thereof was appointed. Lombard was also declared a bankrupt. Neither he nor the insurance company left any known assets to meet their obligations. By an act of the general assembly of Illinois, in force July 1st, 1875, entitled “ An Act to enable corporations in other States and countries to lend money in Illinois, and to enforce their securities and to acquire title to real estate as security,” it was declared, among other things: “That any corporation formed under the laws of any other 480 OCTOBER TERM, 1882. Statement of Facts. State or country, and authorized by its charter to invest or loan money, may invest or loan money in this State. And any such corporation that may have invested or lent money, as aforesaid, may have the same rights and powers for the recovery thereof, subject to the same penalties for usury, as private persons, citizens of this State; and when a sale is made under any judgment, decree, or power in a mortgage or deed, such corporation may purchase, in its corporate name, the property offered for sale, and become vested with the title wherever a natural person might do so in like cases : Provided, however, That all real estate so purchased by any such corporation, in satisfaction of any such liability or indebtedness, shall be offered at public auction, at least once every year, at the door of the court-house of the county wherein the same may be situated, or on the premises so to be sold; . . . and said real estate shall be sold whenever the price offered for it is not less than the claim of such corporation, including all interest, cost, and other expenses: And provided further, That in case such corporation shall not, within such period of five years, sell such lands, either at public or private sale, as aforesaid, it shall be the duty of the State’s attorney to proceed by information, in the name of the people of the State of Illinois, against such corporation, in the circuit court of the county within which such land, so neglected to be sold, shall be situated, and such court shall have jurisdiction to hear and determine the fact, and to order the sale of such land or real estate, at such time and place, subject to such rules as the court shall establish,” &c. Laws of Illinois 1875-6, Act of April 9. For the purpose of settling several conflicting claims in reference to this property, the assignee in bankruptcy of the insurance company brought this suit in the Superior Court of Cook County, Illinois, making the United States Mortgage Company, Gross, and others defendants. The principal questions in dispute between Gross and the mortgage company were: 1. Whether the latter acquired any valid interest or lien upon the premises as against Gross; and the court of original jurisdiction held that it did. 2. Whether Gross, as the owner and holder of the note for $12,273, was entitled to receive the sum awarded as damages for that part GROSS v. UNITED STATES MORTGAGE CO. 481 Argument for Plaintiff in Error. of the property taken by the city, or whether the mortgage company was entitled to it by reason of the terms of the mortgage. That question was ruled in favor of Gross. Upon appeal to the highest court of Illinois the judgment of the inferior State court was reversed and set aside, and the cause remanded “ for such other and further proceedings as unto law and justice shall appertain, with directions to the Superior Court to enter a decree giving to appellants [the mortgage company] exclusively the amount found against the city as damages, and to Gross no part thereof.” It was further adjudged that the mortgage company recover its costs. From that decree this writ of error has been prosecuted. Nr. Thomas S. NcClelland for plaintiff in error.—*1. In the case at bar the Supreme Court of Illinois has decided that the United States Mortgage Company could not loan money in Illinois, and take real estate security, and that the mortgage made by Lombard to it, August 22d, 1872, was absolutely void and of no effect, both in law and equity. On that question this court will treat the ruling of the Illinois court as the law of this case, and no subsequent rulings of the Illinois court can be considered here. SibbaldN. United States, 12 PeL 488; Tyler v. Maguire, 17 Wall. 253, and cases cited; Roberts v. Cooper, 20 How. 467-81; Leese v. Clark et al., 20 Cal. 387; Phelan v. San Fra/ncisco, lb. 39; Chickering v. Failes, 29 Ill. 294; Rising v. Carr, 70 Ill. 596 ; Chicago & Alton Railroad Company v. People, 72 Ill. 82; Johnson v. Von Kettler, 84 Ill. 315 ; Clearklee v. Mundell, 4 Harr, and John. 497. Irrespective of this rule of law, there is another, to wit, that this court, in passing on local questions peculiar to the several States, will adopt the rulings of such State courts as settled at and before the time the transaction occurred which is brought in review before this court, and subsequent decisions of the State court can have no force or effect upon such transactions. Fair-field v. County of Gallatin, 100 U. S. 47. It is reserved to the States, either by statute or general policy, to determine whether foreign corporations shall do business therein. Newburg Petroleum Company n. Weare, 27 Ohio St. 343; The State ex rel. vol. cvni—31 482 OCTOBER TERM, 1882. Argument for Plaintiff in Error. Drake v. Doyle, 40 Wis. 175; Warton on Conflict of Laws, § 286; Bank of Augusta v. Earle., 13 Pet. 519; Runyan v. Coster, 14 Pet. 122, 130 ; Story on Conflict of Laws, § 430 ; Paul v. Virginia, 8 Wall. 168; County of San Matteo v. Southern Pacific Railroad Company, 13 Fed. Rep. 722. Such corporations as defendant in error were prohibited in Illinois, at the time it took its security, by statute and general policy. Gen. Incorp. Law of Ill. of 1872, secs. 1 and 26. The contract of mortgage by Lombard to defendant in error, being prohibited by statute and against the manifest policy of the State, is a nullity. Cincinnati Insurance Compa/ny v. Rosenthal, 55 Ill. 85; Ca/rroll v. East St. Louis, 67 Ill. 568; Starkweather v. Bible Society, 72 Ill. 50. The trust deed of Gross is a contract and cannot be postponed to another lien by the legislature. Sinking Fund v. Northern Ba/nk, 1 Metcalfe (Ky.) 174; Mundy v. Monroe, 1 Manning (Mich.) 68.—II. The act of July 1,1875, and the decision of the Supreme Court of Illinois, construing it as retroactive and giving it the effect of curing the mortgage of August 22d, 1872, from Lombard to defendant in error, and making that instrument valid as against the note for $12,273, dated December 10th, 1872, secured by trust deed and assigned to Gross before maturity, for a valuable consideration without notice, and before the act of 1875 was passed, are in conflict with article 1, section 10, and article 14, section 1 of Constitution of the United States. Constitution of the United States, art. 1, sec. 10; lb., art. 14, sec. 1; Cooley’s Const. Lim. 4th ed. 472; Thompson n. Morgan, 6 Minn. 292; Alabama Life Insurance <& Trust Company v. Boykin, 38 Ala. 510; Dale v. Metcalf, 9 Penn. St. 109; Orton n. Noona/n, 23 Wis. 102; Brinton v. Seevers, 12 Iowa, 389; Russell n. Ramsey, 35 Ill. 362; Conway v. Cable, 37 Ill. 82; Deininger v. McConnell, 41 Ill. 227; Rogers n. Higgins, 48 Ill. 211; Bronson n. Kinzie, 1 How. 311; Edwards n. Kearzey, 96 U. S. 595; Brine n. Insurance Compa/ny, 96 U. S. 627 ; McCracken n. Haywa/rd, 2 How. 608; Barings v. Dabney, 19 Wall. 1; Curra/n N. Arkansas, 15 How. 304; Meighen v. Strong, 6 Minn. 177; Shank n. Brown, 61 Penn. St. 320; Beareds Heirs v. Patton, 7 B. Monroe, 162; McCa/rty n. Hofman, 23 Penn. St. 507; LeBois GROSS v. UNITED STATES MORTGAGE CO. 483 Argument for Plaintiff in Error. v. Bramel, 4 How. 449; Rose et al. x. Sanderson, 38 Ill. 247; Hunter v. Hatch, 45 Ill. 178; Norman v. Heist, 5 Watts & Serg. 171; Wright x. Hawkins, 28 Texas, 452; Sherwood x. Fleming, 25 Texas (supp.), 408; Williamson v. New Jersey Railroad, 2 Stewart (N. J.), 311; Smith v. Horse, 2 Cal. 524; Garnet x. Stockton, 1 Humph. 84; Ballard v. Ward, 89 Penn. St. 358; Bolton x. Johns, 5 Barr, 145. The law of the State where a contract is made is a part of the contract, and a subsequent act changing the law to the prejudice of either party is void. Bronson v. Kinzie, 1 How. 311; Brine v. Insurance Company, 96 U. S. 627; Edwards v. Kearzey, 96 U. S. 595; Von Hoffman v. Quincy, 4 Wall. 535; McCracken v. Hayward, 2 How. 608 ; Smoot v. Lafferty, 7 Ill. 383. And the remedy on such a contract cannot be taken away or materially affected. Edwards v. Kearzey, 96 U. S. 595; Bronson v. Kinzie, 1 How. 311; Mu/ndy v. Monroe, 1 Manning (Mich.) 68; Williamson v. New Jersey Railroad, 2 Stewart (N. J.), 311. As to construction of retrospective statutes: Bruce v. Schuyler, 9 Ill. 221; Marsh v. Chestnut, 14 Ill. 223; Hatcher v. Toledo Railroad Company, 62 Ill. 477; In re Tuller, 79 Ill. 99 ; Thompson v. Alexander, 11 Ill. 54; Hopkins v. Jones, 22 Ind. 310 ; Hackley v. Sprague^ 10 Wend. 113 ; Shonk X. Brown, 61 Penn. St. 320 ; Moore v. Phillips, 7 M. and W. 536.—III. The assignee of a promissory note before maturity, secured by a trust deed, takes it relieved of any equities existing between the original mortgagor and third persons. Carpenter v. Longan, 16 Wall. 271; Kennicott x. Supervisors, lb. 452; New Orleans, &c., Company x. Montgomery, 95 U. S. 16; Sawyer x. Prickett, 19 Wall. 146-166. The decision of the Supreme Court of Illinois, as to the nature of the right acquired by Gross to the security of the trust deed made by the insurance company, and as to whether it is such a right as could be impaired or destroyed by State legislation, is reviewable in this court; and this court will determine for itself, by reference to the general rules of law appertaining to the subject, as to the nature and extent of that right, and whether it is a right of property protected by the Constitution of the United States. Delmas v. Insura/nce Company, 14 Wall. 661; University x. People, 99 U. S. 309-321; Jeff er- 484 OCTOBER TERM, 1882. Opinion of the Court. son Bank n. Skelly, 1 Black, 436; Bridge Proprietors v. Hoboken Company, 1 Wall. 116.—IV. Subsequent to the execution of the mortgage from Lombard to the mortgage company, and before July 1, 1875, the date of the act under which the mortgage company could lend money in Illinois ajid take real estate securities, the city of Chicago condemned the west 35 feet of the property, and a judgment was rendered against it for $10,952 TVo, as the value of the 35 feet, which damages, by the terms of the mortgage, were to go to Lombard direct, but Lombard having sold the entire property—including this 35 feet—to the insurance company, and the insurance company having executed a trust deed on the entire property to secure the note bought by Gross, it follows that Gross acquired all of Lombard’s interest in these damages. These rights were vested in Gross, and under section 10, article 1, and section 1, article 14 of the Constitution of the United States, could neither be affected by the act of July 1st, 1875, nor by the construction given it by the Illinois Supreme Court in this case. Mr. Wirt Dexter for defendant in error. Mr. Justice Harlan, after stating the foregoing facts, delivered the opinion of the court. The first point to be considered relates to the jurisdiction of this court. The defendant in error insists that it does not appear from the record that the decision of the Supreme Court of Illinois was adverse to any asserted right under the Constitution, laws, or treaties of the United States, nor that the judgment or decree complained of could not have been passed without the determination of any such federal question. Dugger v. Bocock, 94 U. S. 603; Murdock v. City of Memphis, 20 Wall. 590. This proposition depends upon the inquiry whether the opinion of the State court, made part of the transcript, can be examined for the purpose of ascertaining the grounds upon which that court based its final decree. In Gibson n. Chouteau, 8 Wall. 314; Bector n. Ashley, 6 lb. 142, and Williams n. Morris, 12 Wheat. 117, it was ruled that GROSS v. UNITED STATES MORTGAGE CO. 485 Opinion of the Court. the opinion of the State court constituted no part of the record, for the purpose of determining whether this court will re-examine its final judgment or decree. And in Parmelee v. Lawrence, 11 Wall. 38—where the question arose as to the effect to be given to the certificate of the chief justice of the State court, showing that a federal question was raised and decided adversely to the party bringing the case here for review—it was said: “If this court should entertain jurisdiction upon a certificate alone, in the absence of any evidence of the question in the record, then the supreme court of the State can give the jurisdiction in every case where the question is made by counsel in argument.” To the same effect are Lawler v. Walker, 14 How. 149 ; and Railroad v. Rock, 4 Wall. 177. But in Murdock n. City of Memphis, 20 Wall. 590, the subject was again under consideration, by reason of the omission from the act of 1867 of that provision in the 25th section of the act of 1789 restricting this court, when reviewing the final judgment or decree of the highest court of a State, to the consideration of such errors as appeared “ on the face of the record.” It was there said, that, in determining whether a federal question was raised and decided in a State court: “ This court has been inclined to restrict its inquiries too much by this express limitation of the inquiry ‘ to the face of the record.’ ” “ What was the record of a case,” the court observed, speaking by Mr. Justice Miller, “was pretty well understood as a common law phrase at the time that statute was enacted. But the statutes of the States, and new modes of proceedings in those courts, have changed and confused the matter very much since that time. It is in reference to one of the necessities thus brought about that this court long since determined to consider as part of the record the opinions delivered in such cases by the Supreme Court of Louisiana. Grand Gulf Railroad Company v. Marshall, 12 How. 165 ; Cousin v. Blands Executor, 19 id. 202. And though we have repeatedly decided that the opinions of other State courts cannot be looked into to ascertain what was decided, we see no 486 OCTOBER TERM, 1882. Opinion of the Court. reason why, since this restriction is removed, we. should not so far examine those opinions, when properly authenticated, as may be useful in determining that question. We have been in the habit of receiving the certificate of the court, signed by its chief justice or presiding judge, on that point, though not as conclusive, and these opinions are quite as satisfactory, and may more properly be treated as part of the record than such certificates.” The opinion of the State court in the present case is properly authenticated, and there is, in addition, the certificate of its chief justice, showing that the present plaintiff in error not only claimed that the deed of trust by the National Life Insurance Company gave, when executed, a lien superior to that asserted by the United States Mortgage Company under Lombard’s mortgage, but that the act of the legislature of Illinois, in force July 1st, 1875, in so far as it attempted to validate mortgages like the one taken by that company from Lombard, was in conflict, as well with the contract clause of the Constitution of the United States, as with that part of the 14th Amendment which prohibits a State from depriving a person of property without due process of law; further, that the latter claim was decided adversely to plaintiff in error. We cannot, therefore, doubt that in the existing state of the law it is our duty to examine the opinion of the Supreme Court of Illinois, in connection with other portions of the record, for the purpose of ascertaining whether this writ of error properly raises any question determined by the State court adversely to a right, title, or immunity, under the Constitution or laws of the United States and specially set up and claimed by the party bringing the writ. Any difficulty existing upon this subject is removed by that provision of the Revised Statutes of Illinois which requires, not only that the justices of the supreme court of the State shall deliver and file written opinions in cases submitted to it, but that “ such opinions shall also be spread at large upon the records of the court.” Rev. Stat. Ill. 1874, p. 329, ch. 37, § 16. This statutory provision would seem to bring the case within the rule which permits an examination of the opinions of GROSS v. UNITED STATES MORTGAGE CO. 487 Opinion of the Court. the Supreme Court of Louisiana to ascertain whether the case was determined upon any ground necessarily involving a federal question within the reviewing power of this court. The opinion of the State court, 93 Ill. 483, in this case, shows that the decree is based upon these grounds: 1. That the laws of Illinois, in force when the mortgage of August 22d, 1872, was executed, as well as her public policy, as disclosed in legislative enactments for many years, prohibited the United States Mortgage Company from taking mortgages upon real property, in that State, to secure the repayment of money loaned; consequently, that no title passed to it under or by virtue of that mortgage. 2. That such mortgage was, however, validated by the act in force July 1st, 1875. This last proposition was, as the opinion shows, contested in the State court by the present plaintiff in error, upon grounds indicated in the certificate of its chief justice. We are here met by the suggestion that the decree can be sustained, apart from the validating act of 1875, upon the ground that the mortgage of Lombard to the United States Mortgage Company was not inconsistent with the statutes of Illinois in force at the time of its execution, or with any public policy declared in the legislation of that State. This view is based upon Stevens v. Pratt, 101 Ill. 206, and Commercial Union Assurance Company v. Scammon, 102 Ill. 46, determined subsequently to the decree in this case. Those cases directly involved the validity of mortgages upon real estate taken from other parties by the United States Mortgage Company prior to the act of July 1st, 1875. The decision in each was that a loan made by a foreign corporation, prior to that act, to a citizen of Illinois, and secured by mortgage, was neither prohibited by any legislation of that State, nor contrary to its public policy, and that such mortgage could be foreclosed and the title to the mortgaged real estate thereby passed. So much of the opinion of the Supreme Court of Illinois in this case as held to the contrary was expressly declared in Stevens v. Pratt and Commercial Union Assurance Company v. Scammon, to be erroneous. But it is contended, in behalf of plaintiff in error, that the decree below, in so far as it declares Lombard’s mortgage to be 488 OCTOBER TERM, 1882. ’ Opinion of the Court. invalid, is an adjudication, as between the parties to this case, of a purely local question, of which, upon writ of error, we may not take cognizance; consequently, it is argued, this court, without reference to the later decisions of the State court, must determine the federal question here raised upon the basis established by that court in this case, viz., that Lombard’s mortgage was, when given, inoperative, under the local law, to pass title to the United States Mortgage Company. Without expressing any opinion as to the soundness of this position, and assuming, for the purposes of this case only, that Lombard’s mortgage was, for the reasons given by the State court, invalid under the local law, we proceed to inquire whether the act of 1875, in its application to that mortgage, is in conflict with any provision of the Constitution of the United States. That the act in question is not repugnant to the Constitution, as impairing the obligation of a contract, is, in view of the settled doctrines of this court, entirely clear. Its original invalidity was placed by the court below upon the ground that the statutes and public policy of Illinois forbade a foreign corporation from taking a mortgage upon real property in that State to secure a loan of money. Whether that inhibition should be withdrawn was, so far at least as the immediate parties to the contract were concerned, a question of policy rather than of constitutional power. When the legislative department removed the inhibition imposed, as well by statute as by the public policy of the State, upon the execution of a contract like this, it cannot be said that such legislation, although retrospective in its operation, impaired the obligation of the contract. It rather enables the parties to enforce the contract which they intended to make. It is, in effect, a legislative declaration that the mortgagor shall not, in a suit to enforce the lien given by the mortgage, shield himself behind any statutory prohibition or public policy which prevented the mortgagee, at the date of the mortgage, from taking the title which was intended to be passed as security for the mortgage debt. We repeat here what was said in SatterUe v. Matthew-son, 2 Pet. 380, and, in substance, in Watson n. Mercer, 8 Pet. 88, that “it is not easy to perceive how a law, which gives GROSS v. UNITED STATES MORTGAGE CO. 489 Opinion of the Court. validity to a void contract, can be said to impair the obligation of that contract.” The doctrine of those cases was approved at the present term, in Ewell v. Daggs, ante, p. 43, where, speaking by Mr. Justice Matthews, it was said, touching legislation of this character, “ that the right of a defendant to avoid his contract is given by statute, for purposes of its own, and not because it affects the merits of his obligation; and that whatever the statute gives, under such circumstances, as long as it remains in fieri, and not realized by having passed into a completed transaction, may, by a subsequent statute, be taken away. It is a privilege that belongs to the remedy, and forms no element in the rights that inhere in the contract. The benefit which he has received as the consideration of the contract, which, contrary to law, he actually made, is just ground for imposing upon him, by subsequent legislation, the liability he intended to incur.” Ante, p. 151. But it is contended that, by his purchase, prior to the passage of the act of 1875, of the note secured by the deed of trust given by the National Life Insurance Company, the plaintiff in error acquired a vested right of property, of which he could not, under the Fourteenth Amendment of the Constitution, be deprived by subsequent legislation. We do not perceive that Gross was, by that act, deprived of any substantial right of property. If, as held by the court below, in this case, the title to the real estate did not Pass from Lombard at the date and by virtue of his mortgage, and if, because of its invalidity under the laws and public policy of the State, he was at liberty to convey a complete title to the insurance company, we have seen that the latter took the title subject to the mortgage, and, in addition, expressly assumed to pay the amount of the debt due from Lombard to the mortgage company. Apart from the supposed inability of the mortgage company, resulting from the statutes and public policy of the State, to take title by mortgage to the premises, Lombard was personally liable to it for the money he had borrowed. He could not have escaped that personal liability upon the ground that the mortgage, in so far as it gave a lien upon the property, was invalid. The claim of the company against him for the money he obtained 490 OCTOBER TERM, 1882. Opinion of the Court. from it was separable from, and wholly independent of, any lien upon the premises. And, as between Lombard and the insurance company, that personal liability of the former for the mortgage debt was protected by the very terms of the conveyance to the latter. If the acceptance of title, subject to the mortgage, did not, because of its invalidity, give a lien upon the premises, it is clear that Lombard, as against the insurance company, had, upon recognized principles of equity, a vendor’s lien for so much of the purchase money as was equal to or was represented by the debt due from him to the mortgage company. Of the existence of that liability upon the part of Lombard, and of the agreement by the insurance company to protect him against it, Gross had notice from the deed of trust. He claims under the insurance company, and can assert no right inconsistent with its obligation to meet, as part of the purchase money, Lombard’s debt to the mortgage company. Without the act of 1875, a court of equity, in enforcing a hen for the note held by Gross, could not have ignored the equitable lien which, as vendor, Lombard had for his protection against the mortgage debt, subject to which, as we have seen, he passed the title to the insurance company. The entire argument in behalf of Gross proceeds upon the erroneous ground that when he purchased the note in question there was no lien upon the property in favor of any one for any amount whatever, except that given by the deed of trust to secure the note for $12,273. The effect, then, of the act of 1875 was not to. deprive Gross of any superior exclusive lien upon the premises. It only enabled the mortgage company to enforce the lien attempted to be given by the mortgage of 1872, rather than leave the property subject to a lien for a like amount in favor of Lombard, from whom the insurance company, under which Gross claims, purchased. This view, without presenting others leading to the same result, indicates that the act of 1875 was not inconsistent with that clause of the Constitution of the United States which inhibits a State from depriving any person of property without due process of law. The federal question having been correctly determined^ the decree is affirmed. U. STATES V. FORTY-THREE GALS. WHISKEY 491 Opinion of the Court. UNITED STATES v. FORTY-THREE GALLONS OF WHISKEY. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA. Decided May 7th, 1883. Indians—Internal Revenue—License—Spirituous Liquors—Treaties. ■ The payment of a special internal revenue tax for selling liquors in a collection district does not authorize the licensee to introduce or to attempt to introduce spirituous liquors or wines into Indian country in violation of the act of June 30th, 1834, 4 Stat. 729, as amended by the act of March 15th, 1864, 13 Stat. 29, when an Indian treaty, ceding lands embraced within the territory covered by the license, provides that the laws of the United States then in force, or which might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country ceded, till otherwise ordered by Congress or the President. Same case in 93 U. S. 188, referred to. Information and libel in the court below of goods of one Lariviere, seized by an Indian agent of the United States for attempted violation of the laws forbidding the introduction and sale of spirituous liquor in the Indian country. The case was before the court at October term, 1876, 93 U. S. 188. The issues that have now come for settlement, and the facts necessary to their comprehension, are fully stated in the opinion of the court. Mr. Assistant Attorney-General Maury for the United States. Mr. C. K. Davis for defendant in error. Mr. Justice Field delivered the opinion of the.court. By the treaty between the Red Lake and Pembina bands of Chippewa Indians and the United States, concluded on the 2d of October, 1863, those Indians ceded to the United States their right, title, and interest to certain lands owned and claimed by them in the State of Minnesota, and the Territory of Dakota. 13 Stat. 667. The seventh article of the treaty 492 OCTOBER TERM, 1882. Opinion of the Court. stipulated that the laws of the United States then in force or that might thereafter be enacted, prohibiting the introduction and sale of spirituous liquors in the Indian country, should be in full force and effect throughout the country thereby ceded until otherwise directed by Congress or the President of the United States. The 20th section of the act of June 30th, 1834, entitled “ An Act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontier,” 4 Stat. 729, as amended by the act of March 15th, 1864, 13 Stat. 29, was in force when this treaty was made; and it forbids any one, under certain penalties, to sell or dispose of any spirituous liquors or wine to an Indian under the charge of an Indian superintendent or agent; or to introduce or to attempt to introduce them into the Indian country, unless done by order of the War Department or of some authorized officer under it. And the section provides for the seizure and forfeiture of liquors thus introduced and the goods and property of the party violating the statute with which they are found. The following is the section as amended: “ Sec. 20. And be it further enacted, That if any person shall sell, exchange, barter, or dispose of any spirituous liquors or wine to any Indian under the charge of any Indian superintendent or Indian agent appointed by the United States, or shall introduce or attempt to introduce any spirituous liquor or wine into the Indian country, such person, on conviction thereof before the proper District or Circuit Court of the United States, shall be imprisoned for a period not exceeding two years, and shall be fined not more than $300 : Provided, however, That it shall be a sufficient defence to any charge of introducing or attempting to introduce liquor into the Indian country if it be proved to be done by order of the War Department, or any officer duly authorized thereunto by the War Department. And if any superintendent of Indian affairs, Indian agent, or sub-agent, or commanding officer of a military post, has reason to suspect, or is informed that any white person or Indian is about to introduce or has introduced any spirituous liquor or wine into the Indian country, in violation of the provisions of this section, it shall be lawful for such superintendent, sub-agent, or commanding officer to cause the boats, U. STATES v. FORTY-THREE GALS. WHISKEY. 493 Opinion of the Court. stores, packages, wagons, sleds, and other places of deposit of such person to be searched ; and if any such liquor is found therein, the same, together with the boats, teams, wagons, and sleds used in conveying the same, and also the goods, packages, and peltries of such person, shall be seized and delivered to the proper officer, and shall be proceeded against by libel in the proper court, and forfeited one-half to the informer and the other half to the use of the United States ; and if such person be a trader, his license shall be revoked and his bonds put in suit. And it shall, moreover, be the duty for any person in the service of the United States, or for any Indian, to take and destroy any ardent spirits or wine found in the Indian country, except such as may be introduced therein by the War Department. And in all cases arising under this act Indians shall be competent witnesses.” Under this section the present libel of information was filed in the District Court of the District of Minnesota, to enforce the forfeiture of certain spirituous liquors, which are particularly described, and other merchandise found with them at the time of seizure. In one of its counts the libel sets forth that Bernard Lariviere, a white person, late of the village of Crookston, county of Polk, and State of Minnesota, did, on the 2d of February, 1874, unlawfully carry and introduce into the country ceded to the United States under the treaty mentioned— namely, into the county of Polk, which is a part of the ceded country—the spirituous liquors described; that such introduction was in violation of the provisions of the 20th section of the act of Congress above quoted; that he owned, and at the time had in his possession with the liquors, a quantity of goods, packages, and peltries, a list of which is contained in a schedule annexed to the libel; that an Indian agent, duly appointed, having reason to suspect, and having been informed, that spirituous liquors had been introduced by Lariviere, caused his stores, packages, and peltries to be searched, and there found the liquors mentioned, which he in consequence seized, together with the other goods. In another count the libel sets forth substantially the same matters, with the addition that the liquors were introduced into the country ceded with intent to 494 OCTOBER TERM, 1882. Opinion of the Court. sell, dispose of, and distribute the same among the bands and tribes of Chippewa Indians then under charge of the Indian agent, and frequenting the county of Polk and village of Crookston, and living there or near the place. To this libel Lariviere and one Clovis Guerin appeared as claimants of the goods seized, and demurred to the libel on the ground that the court had no jurisdiction; that the property was never introduced into the Indian territory, but, as appeared by the libel, was searched and seized in an organized county of the State of Minnesota, and hence that the seizure was without authority of law. The demurrer thus interposed was sustained by the district court, and judgment rendered against the United States, and this judgment was affirmed by the circuit court. The case was then brought to this court, where the judgment was reversed and the cause remanded, with directions to overrule the demurrer. Several important legal and constitutional questions were raised on the argument here, and it was held that Congress, under its constitutional power to regulate commerce with the Indian tribes, may not only prohibit the introduction and sale of spirituous liquors in the Indian country, but extend such prohibition to territory in proximity to that occupied by Indians; that it is competent for the United States, in the exercise of the treaty-making power, to stipulate in a treaty with an Indian tribe that within the territory thereby ceded the laws of the United States, then and thereafter enacted, prohibiting the introduction and sale of spirituous liquors in Indian country, shall be in full force and effect until otherwise directed by Congress or the President of the United States, and that a stipulation to that effect will operate proprio •oigore, and be binding upon the courts, although the ceded territory is situated within an organized county of a State. These conclusions are stated in a very clear and able opinion by Mr. Justice Davis, United States v. 43 Gallons of Whiskey, 93 U. S. 108. When the case went back to the district court for trial, and the demurrer was overruled, the claimant Lariviere filed an answer to the libel containing inconsistent defences. He first denied that he ever introduced into the ceded territory the liquors as U. STATES V. FORTY-THREE GALS. WHISKEY. 495 Opinion of the Court. charged, and he claimed the property, except the liquors, as his; and as to those he disclaimed ownership. But, although denying their introduction, he averred that the acts charged against him were done under the authority of the War Department, and that the liquors were not introducedfor the purpose of sale or in violation of any law or treaty. He subsequently amended this answer by adding an averment to the effect that the territory ceded under the treaty mentioned lay within the limits of a collection district under the United States internal revenue laws; that persons resident within it and within the county of Polk and at the village of Crookston, engaged in the business of retailing spirituous liquors, had been assessed and required to pay taxes upon their business, and were thereby’licensed to carry on that business and sell spirituous liquors in that county; and that he also had been thus assessed, taxed, and licensed as a retail dealer, and that his license had never been revoked nor the tax paid for the same returned. The other claimant, Guerin, averred that the property seized, except the liquors, had been transferred to him as collateral security for a debt, and denied every traversable allegation in the information save the seizure by the Indian agent. On the trial evidence was introduced by the government tending to show that Lariviere introduced the liquors mentioned with the intent to sell them to Indians under the charge of the United States Indian agents, and also to show the circumstances of the seizure. Against the objection of the government Lariviere gave evidence of all the circumstances touching the assessment and collection of the internal revenue tax from him and other sellers of liquor by retail in the county of Polk. The court charged the jury that while the mere introduction of spirituous liquors in the ceded territory was prima facie evidence of an unlawful purpose, this evidence was neutralized by proof that the claimant held at the time a receipt of the collector of internal revenue for the special tax required to be paid by a retail liquor dealer, and hence that the burden of proof was shifted on the government to show that the liquors were introduced with the intent to sell them to the Indians. It also charged that “ the uncontroverted facts found for the defence were a license to Lariviere to take liquor to 496 OCTOBER TERM, 1882. Opinion of the Court. Crookston and gave him the right to do so, and that, for so doing, he was subject to no penalty under the national law.” To this charge an exception was taken. There was a verdict for the claimant, and judgment was entered thereon that the libel be dismissed. The case was then taken to the circuit court and the judgment of the district court was there affirmed. To review that judgment the case is brought here. The only question for our consideration, as thus seen, is whether Lariviere’s payment of the special internal revenue tax for selling liquors in the collection district embraced by the ceded territory exempted him from the penalties of the act of 1864. We are clear that it did not. Congress never intended to interfere with the operation of the treaty, or to sanction the sale of liquors in any ceded territory where an express stipulation provides that they shall not be sold. The evils resulting from the use of spirituous liquors are so many and so appalling that the government has, from an early period of our history, labored to prevent their introduction among the Indians. In order more effectually to secure this result, laws prescribing severe penalties have been enacted, and authority has been vested in the Indian agents to arrest traffickers in the prohibited article, and to seize and confiscate their property found with it. It would require very clear expressions in any general legislation to authorize the inference that Congress purposed to depart from its long established policy in regard to a matter of so vital importance to the peace and to the material and moral well-being of these wards of the nation. There is also another consideration. The laws of Congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to do so without violence to their language. This rule operates with special force where a conflict would lead to the abrogation of astipulation in a treaty making a valuable cession to the United States. The unauthorized introduction of liquors into the ceded territory constitutes the offence, although if they were not sold or given away, no injurious consequences would follow; but once allow their indiscriminate or general introduction and the law would be evaded without possibility of detection. The intro- U. STATES v. FORTY-THREE GALS. WHISKEY. 497 Opinion of the Court. duction. is, therefore, forbidden, unless permitted by the order of the War Department or of some officer authorized by it. The establishment of the collection district, embracing the ceded territory, whilst providing for the collection of taxes on certain kinds of business, did not authorize, nor was it intended to authorize, business which was otherwise specifically forbidden. The License Tax Cases, 5 Wall. 462, do not conflict with, but rather support this view. They merely decide that the licenses of the United States for selfing liquors and dealing in lotteries exempted the party from the penalties of the revenue law to which he would otherwise be subjected. They gave no exemption from State laws or the taxes they imposed for the business carried on. They conferred no authority by themselves to carry on any business within a State. They were in the nature of taxes on the business which the State permitted. The court, speaking by Chief Justice Chase, said that if the licenses were to be regarded as giving authority to carry on the branches of business which they licensed it might be difficult, if not impossible, to reconcile the granting of them with the Constitution. “ But,” he added, “ it is not necessary to regard these laws as giving such authority. So far as they relate to trade within State limits they give none and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non-payment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and implying nothing except that the licensee shall be subject to no penalties under national law if he pays it.” Though these cases are cited by the defendant, they affirm the doctrine that the licenses under the then existing law, being designed merely to secure the payment of taxes to' the United States, did not interfere with other legitimate regulations of business nor sanction it where otherwise prohibited. The case of the Cherokee Tobacco Tax, 11 Wall. 616, cannot be treated as authority against the conclusion we have reached. The decision only disposed of that case, as three of the judges vol. cvm—32 498 OCTOBER TERM, 1882. Statement of Facts. of the court did not sit in it and two dissented from the judgment pronounced by the other four. It follows from the views expressed that the judgment of the court below must be reversed and a new trial had; and It is so ordered. CONNECTICUT MUTUAL LIFE INSURANCE COMPANY v. LUCUS. IN ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Decided May 7th, 1883. Fraud—Insurance. A and B formed a partnership with a capital of $10,000, in which each was to contribute one-half the capital. A furnished B’s moiety temporarily, and when after some time B failed to comply with his agreement, A, in May, 1869, applied for a policy on B’s life for $5,000. One of the brothers of B had committed suicide. One of the questions asked A by the company was as to the number of brothers of B deceased, and causes of death ; to this A made no answer. B, in the previous February, had applied to the same company for a policy, and in answer to the same question had replied: “ Brothers dead, one; cause of death, accident.” A policy was issued on A’s application, by which the company agreed to insure the life of B for $5,000, and to pay the money “to the assured ” within 90 days after notice of the death of B. B died in an insane asylum. Held, 1. That although by the terms of the policy the life of B was insured, the person in whose favor it was assured was A, and that the action on the policy was rightfully brought in his name. 2. That A had an insurable interest in B’s life to the extent of the moiety of the capital which B should have contributed to the firm, without respect to the condition of the partnership accounts, unless his estimate of the interest at the time of the application was made in bad faith. 8. That the failure of A to answer the question as to the suicide of B’s brother could not necessarily be imputed as a fraud; and that the concealment o the cause of the brother’s death in B’s application could not be imported into this suit and applied to defeat A’s application. Suit to recover the sum of $5,000 alleged to be assured to the plaintiff below, and defendant in error, Luchs, on the life o one Dillenberg. Pleas: 1st. Non debet; 2d. That the plain tiff had no insurable interest in Dillenberg’s life; 3d. That the CONNECTICUT MUT. LIFE INS. CO. v. LUCHS. 499 Statement of Facts. policy was procured through fraudulent concealment of material facts, and by means of false representation. Luchs and Dillenberg entered into a copartnership, in which the capital was to be $10,000. Of this each to contribute one-half. Luchs actually contributed all; and when Dillenberg failed to contribute his half he applied to the defendant’s agent in Washington for a policy of $5,000 on Dillenberg’s life. Dillenberg had three months previously applied to the same agent for a policy on his own life, and in reply to a question propounded respecting his family had made the following answer: Brothers living, one ; ages, Brothers dead, one; ages, 48 ; health, good. 23 ; cause of death, accident. Luchs to the same question replied: Brothers living, one ; ages, Brothers dead, ; age, 48 ; health, good. ; cause of death, On this application a policy was issued, of which the following is the material part: “ This policy of insurance witnesseth, that the Connecticut Mutual Life Insurance Company, in consideration of the declarations and representations made to them in the application for this insurance, and the sum of one hundred and twenty-five dollars and cents, to them in hand paid by Leopold Luchs, of Washington, D. C., and of the annual premium of one hundred and twenty-five dollars and cents, to be paid on or before the second day of June in every year during the continuance of this policy, to assure the life of Levi Dillenberg, of Washington, in the county of Washington, District of Columbia, in the amount of five thousand dollars, for the term of the whole continuance of his life. “ And the said company do hereby promise and agree to and with the said assured, his executors, administrators, and assigns, well and truly to pay, or cause to be paid, in the city of Hartford, the said sum insured to the said • assured, his executors, administrators, or assigns, within ninety days after due notice and proof of the death of the said Levi Dillenberg, deducting therefrom all indebtedness of the party for loans made by the company on this policy.” 500 OCTOBER TERM, 1882. Argument for Plaintiff in Error. At the trial the court instructed the jury as follows: “ 1. If the jury find from the evidence that in May, 1869, the plaintiff and Levi Dillenberg were in partnership, and that to that partnership the plaintiff contributed all the capital and both contributed their services, and that they shared the profits equally, and that the policy in suit was applied for by the plaintiff under an agreement between him and Levi Dillenberg, whereby the latter undertook to pay the premiums on the same, and that this agreement was made by said Dillenberg, because of an obligation which he agreed he was under to the plaintiff, growing out of the receipt, past or prospective, by Dillenberg of one-half of the partnership profits, and that said policy was taken out by the plaintiff in good faith and not for the purpose of speculating on said Dillenberg’s life, then they will render a verdict for the plaintiff on defendant’s second plea.” . . . “ 4. Since [in] the application upon which the policy in suit was issued, there is no answer to the questions, ‘ brothers dead ; age ; cause of death,’ it follows that there is no warranty in respect of the information called for by said questions.” The defendants excepted. The jury rendered a verdict for the plaintiff for the full amount. The defendants brought the case here on error. JZ?. Enoch Totten for the plaintiff in error.—I. An action on this policy can be maintained under any circumstances, the most favorable to Luchs, only in the name of the administrator of Dillenberg. Hollis v. Richardson, 13 Gray, 392; Burroughs v. Assurance Company, 97 Mass. 359 ; Gould v. Emerson, 99 Mass. 154; Campbell v. New England Insurance Company, 98 Mass. 381; Bailey v. Insurance Company, 114 Mass. 177; Exchange Bank v. Rice, 107 Mass. 37.—II. If this policy was taken put by Luchs on the life of Dillenberg, for the benefit of the former, it was a wager policy, and is void, because at the date of the application he did not have an interest in the life of Dillenberg to the extent of $10,000 ; he had no insurable interest whatsoever in Dillenberg’s life; on the contrary, he was actually indebted to Dillenberg; there is no pretence here that there was any interest held by Luchs, unless it existed by CONNECTICUT MUT. LIFE INS. CO. v. LUCHS. 501 Argument for Plaintiff in Error. reason of the copartnership business; and the testimony of the plaintiff’s own expert witness, corroborated by his own books of account, establish the fact beyond controversy that at the date of the application for the insurance the firm was indebted to Dillenberg to the extent of over $4,000. A valid insurance cannot be effected by one man upon the life of another unless there is an indebtedness existing in favor of the person who takes out the policy, or the equivalent, and the indebtedness must be in proportion to the amount of the insurance. Cammack v. Lewis, 15 Wall. 643. It has been held that the near relationship of father and son does not constitute an insurable inserest in the son on the father’s life, unless the son has a well-founded or reasonable expectation of some pecuniary advantage to be derived from the continuance of the life of the father. See also, Guardian Life Insurance Company n. Hogan, 80 Ill. 35 ; May on Insurance, sec. 107. Cammack v. Lewis, 15 Wall. 643; Insura/nce Company n. Sturges, 18 Kansas, 93; Stevens v. Warren, 101 Mass. 564; Ruse v. Mutual Benefit Life Insura/nce Company, 23 N. Y. 516; May on Insurance, 398; Warnock v. Davis, 104 U. S. 775. In Lewis v. Phoenix Life Insura/nce Compa/ny, 39 Conn. 100, it was held that the mere relationship of brother, without more, is not sufficient to support a life insurance policy.—III. The court instructed the jury in pursuance of a prayer of plaintiff’s counsel that “ since in the application upon which the policy in suit is issued, there is no answer to the questions, ‘ Brothers dead; age; cause of death,’ it follows that there is no warranty in respect of the information called for by said questions.” The court in this connection denied the prayer of defendant’s counsel as to the right of the company to refer to and rely upon the former application to which its attention had been specially invited by the applicant in this case. This was error. For some purpose, inferable only from the extraordinary circumstances and evidence disclosed in this case, Dillenberg, with the help of Myers, procured a policy on his own life for $5,000 from this company on an application dated only about three months before this application, and written by Myers ; in the first application the same interrogatory about the number 502 OCTOBER TERM, 1882. Opinion of the Court. of brothers dead and the cause of death, is put to Dillenberg, and he answers that one of his brothers is dead and that the cause of his death was “ accident.” This answer Myers knew to be false at the time he wrote the application. In the last application this question remains unanswered, but the former application is twice referred to in the latter. The defendant proved at the trial that when the examining officer of the company noticed the omission he referred to the former application, and there found it stated that the cause of death of the brother was “ accident; ” upon this information the present policy was issued. The officers of the company had a right to presume that the information on this point was truly given in the former application in any case, and especially in view of the fact that they were twice referred to it for information. The reference in this application to the “ former application ” for information, makes that application a part of this one, and a false answer in that will be as fatal as if in this. Rawls v. American Mutual Life Insura/nce Company, 27 N. Y. 282; Bliss on Life Insurance, p. 78, 609, § 394 and § 57; Hawkins v. United States, 96 IT. S. 689; Clark v. Manufacturer^ Insura/nce Company, 2 W. & M. 472. Mr. Justice Field delivered the opinion of the court. This was an action by Leopold Luchs on a policy of insurance upon the life of Levi Dillenberg, issued by the Connecticut Life Insurance Company in June, 1869. Luchs and Dillenberg were partners at the time in the business of buying and selling tobacco in the city of Washington. Their partnership was formed in October, 1866, each agreeing to contribute his services and one-half of the capital. It was understood that the money of Dillenberg was then invested in mining stocks, and could not at once be obtained. Luchs accordingly furnished the entire capital, which was over $10,000. Dillenberg never contributed his portion, and about two years after the partnership was formed his failure in this respect caused dissatisfaction and complaint. It was thereupon suggested by one Myers, who was employed by an agent of the insurance company, and who had been called in as an accountant to examine the books CONNECTICUT MUT. LIFE INS. CO. v. LUCUS. 503 Opinion of the Court. of the concern, that, as a means of “ adjusting the dispute or misunderstanding between the partners,” a policy of insurance should be obtained upon the life of Dillenberg for the benefit of Luchs, and that Dillenberg should retire from the firm within a year afterwards. Nothing, however, was then done upon this suggestion, but in the following year the policy in suit was procured. 1. The first question presented is as to the right of Luchs to sue upon it. It is plain from the parol evidence in the case, that it was the intention both of Luchs and Dillenberg that the policy should be procured for the benefit of Luchs. The declaration, which is the application for the policy, begins with an averment that he, Luchs, is desirous of effecting an insurance upon the life of Dillenberg, and proceeds to state the latter’s age, the condition of his health, the character of his habits, and that he, Luchs, has an interest in the life of Dillenberg to the amount of $10,000. The declaration is signed both by Luchs and Dillenberg, though it purports in every line to be the separate application of Luchs. It is accompanied by questions and answers, and to the first question, as to the name and residence of the person for whose benefit the insurance is proposed, the answer is : “ Leopold Luchs, Washington, D. C.” The answers also are signed both by Luchs and Dillenberg. The policy was issued and delivered to Dillenberg, and retained by him until after the dissolution of the partnership, when he handed it to Luchs, stating that he gave it to him to show that he intended to do what was right and fair with him, and requested him to pay the premiums on it, promising to refund the money. The first two premiums were paid by Dillenberg, the others by Luchs. The difficulty in the question presented arises from the language of the policy. Omitting words not essential on this point, it reads as follows : “This policy witnesseth that the Connecticut Mutual Life Insurance Company, in consideration of the declarations and representations made to them in the application for this insurance, and the sum of $125 to them in hand paid Leopold Lucks, . . •. 504 OCTOBER TERM, 1882. Opinion of the Court. do assure the life of Levi Dillenberg. . . . And the said company do hereby promise . . the said assured . . to pay . . . said sum insured to the said assured, his executors, ad. ministrators, or assigns, within ninety days after due notice and proof of the death of the said Levi Dillenberg. “It is hereby declared to be the true intent and meaning of this policy, and the same is accepted by the assured upon the express conditions that in case the said person whose life is hereby insured shall pass beyond the settled limits or the protection of the government of the United States, . . . this policy shall be null. It is also understood that if the proposal, answers, and declaration made by the said Leopold Luchs, which are hereby made part and parcel of this policy as fully as if herein recited, and upon the faith and warranty of which this agreement is made, shall be found in any respect untrue, this policy shall be null and void, or in case the said assured shall not pay the said annual premiums, . . . this policy shall cease. “ It is further agreed that this policy shall not take effect . . until the premium above named shall be actually paid . . . during the life of the insured.” The contention of the plaintiff is that the words “ the assured ” in the policy apply to the person for whose benefit the policy was effected, that is, Luchs, and not to the party whose life was insured. There are undoubtedly instances where this distinction between the terms assured and insured is observed, though we do not find any judicial consideration of it. The application of either term to the party for whose benefit the insurance is effected, or to the party whose life is insured, has generally depended upon its collocation and context in the policy. We are of opinion that, reading the policy here in connection with the declaration and the answers of Luchs, which form a part of it, and indicate the object of procuring it, the term assured must be held as applicable to him for whose benefit it was effected. The policy considered in ¿Etna Life Insurance Company v. France, 94 U. S. 562, gives some support to this view. There the policy was effected by a brother for a sister’s benefit, and CONNECTICUT MUT. LIFE INS. CO. v. LUCKS. 505 Opinion of the Court. the term assured was held to apply to the sister, for she recovered in a suit brought in connection w'ith her husband on the policy. The attention of the court does not appear, however, to have been directed to that term. It may be said, also, that there could be little doubt as to its proper application in that case, as it was followed by the words “ and her executors, administrators, or assigns,” thus limiting it to the sister. In other respects the language is substantially identical with that of the policy under consideration. 2. The second question presented for our determination is whether Luchs had an insurable interest in the life of Dillen-berg. Upon this we have no doubt. Dillenberg was his partner and had not paid his promised proportion of the capital of the concern. At the time the policy was applied for he was still in default, and although it might have turned out that the actual amount due upon a settlement of accounts was less than the promised proportion, it was not a matter definitely ascertained at the time. Besides what was thus due to him, Luchs was interested in having Dillenberg continue in the partnership. He had such an interest, therefore, as took from the policy anything of a wagering character. As this court said in Warnock v. Davis, 104 U. S. 779: “ It is not easy to define with precision what- will, in all cases, constitute an insurable interest, so as to take the contract out of the class of wager policies. It may be stated, generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor of or siirety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable expectation of advantage or benefit from the continuance of his life. It is not necessary that the expectation of advantage or benefit should be always capable of pecuniary estimation. . . . But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured.” Certainly Luchs had a pecuniary interest in the life of Dillenberg on two grounds: because he was his creditor and be- 506 OCTOBER TERM, 1882. Opinion of the Court. cause he was his partner. The continuance of the partnership, and, of course, a continuance of Dillenberg’s life, furnished a reasonable expectation of advantage to himself. It was in the expectation of such advantage that the partnership was formed, and, of course, for the like expectation, was continued. In Morrell v. Trenton Mutual Life and Fire Insurance Company, 10 Cushing, 282, a policy was taken out by the plaintiff upon the life of his brother, who was about going to California, on an agreement that the latter should pay to him onefourth of his earnings for the following year. In an action on the policy it was contended that the plaintiff had no insurable interest upon the life of the insured, but the court, after deciding that he had such an interest from the fact that he held a promissory note signed by the firm of which the insured was a partner, also said that it was strongly inclined to the opinion that the plaintiff had another interest in the life of the person insured. “He had,” said the court, “a subsisting contract with that person, made on a valuable consideration, by which he was to receive one quarter part of his earnings in the mines of California for one year. Such an interest cannot, from its nature, be valued or apportioned. It was an interest upon which the policy attached. By the loss of his life within the year, the person whose life was insured lost the means of earning anything more, and the plaintiff wTas deprived of receiving his share of such earnings to an uncertain and indefinite amount.” In Trenton Mutual Life and Fire Insurance Company n. Johnson, 4 Zabriskie’s Reports, 576, a policy was taken out by the plaintiff on the life of one Van Middlesworth for $1,000, one-half payable to the plaintiff and the other half to Van Middlesworth. They belonged to an association called the New Brunswick and California Mining and Trading Company, the capital stock of which consisted of forty-five shares of $600 each. The company consisted partly of shareholding members and partly of active members, the shareholders being each required to furnish a substitute to proceed to the mines of the company. The plaintiff owned one share, advanced $600 of capital and procured Van Middlesworth to go out as his sub- CONNECTICUT MUT. LIFE INS. CO. v. LUCKS. 507 Opinion of the Court. stitute, which, he did, and acted as his agent and substitute; and the assets of the company having been divided in California he received the plaintiff’s share, and afterwards died, not having paid it over. By one of the articles of the association all treasures and all the proceeds of the labor of each member, and all profits, were to go into a general fund for the benefit of the association. To the action brought on the policy it was objected that the plaintiff had no insurable interest in the life of the deceased. On this question the court said: “In the present case Johnson had a direct interest in the life of his substitute, whose earnings were to constitute a part of the joint funds, of which he was entitled to his share, an interest fully equivalent to the interest of a wife in the life of her husband, of a child in that of a parent, or a sister in that of a brother. And at Van Middles worth’s death, although prior to that time the company had been virtually dissolved, he had an interest in him as his creditor to the extent of his share of the assets in his hands.” In Bevin v. The Connecticut Mutual Life Insurance Company, 23 Conn. 244, the plaintiff had obtained a policy of insurance for $1,000 on the life of one Barstow, to whom he had advanced $350, besides articles of personal property, to enable him to go to California and there labor for one year, on an agreement that he would account to the plaintiff for one-half of his gains. The court said that Barstow was the plaintiffs debtor and partner, giving to the plaintiff an interest in the continuance of his fife, as by that means, through his skill and efforts, the plaintiff might expect not only to get back what he had advanced, but to acquire great gains and profits in the enterprise. “ All the books,” the court added, “ hold this to be a sufficient interest to sustain a policy of insurance. As to the value of this interest, we think it must be held to be what the parties agreed to consider it in the policy. This was the sum asked for by the plaintiff, and which the defendants agreed to pay in case of death, and for which they were paid in the premiums given by the insured. The policy must, we think, be held to be a valued policy.” And after referring to a policy 508 OCTOBER TERM, 1882. Opinion of the Court. of insurance obtained by a sister on her brother’s life, where no question seemed to have been made as to the amount, but only whether it was an interest which the law would recognize, the court said: “ So, in every case, where a person on his own account insures the life of a relative, if the sum named in the policy is not to he the rule of damages, we inquire what is ? The impossibility of satisfactorily going into the question in most cases, and especially where there is nothing to guide the inquiry, and everything is uncertain, would lead us to hold that a policy like this is a valued policy as most consistent with the understanding of the parties and the principles of law.” 3. The third question presented for determination relates to alleged breaches of the warranty of the policy. It is alleged that the policy was issued upon the faith of certain statements and answers of the plaintiff which were untrue. These statements were, first, that the plaintiff haa an interest in the life of Dillenberg to the amount of $10,000, when, in fact, he had no interest in it; and, second, that the cause of the death of one of the brothers of Dillenberg was accident, when, in fact, he had committed suicide. As to the alleged breach of the warranty of the interest of the plaintiff in the life of Dillenberg there is this answer: The statement of the plaintiff as to the amount of his interest was necessarily conjectural. No one can affirm with absolute certainty that he has an interest to a definite sum in the life of another, where the interest depends upon the result of an existing partnership or other business transactions not yet terminated. The value of his interest in such cases will always be more or less a matter of opinion. The statement, in that regard, must, of necessity, be taken as a mere estimate. If, therefore, the plaintiff had an interest in the life of Dillenberg and his estimate was made in good faith, the declaration cannot be deemed untrue so as to constitute a breach of the warranty. The extent of a man’s interest in the life of another, depending upon a continuing partnership or the results of business transactions not yet completed, is, in the nature of things, CONNECTICUT MUT. LIFE INS. CO. v. LUCKS. 509 Opinion of the Court. uncertain, and in such cases all that can be required is that he had an actual interest, and that his estimate was made in good faith, without any purpose to deceive. Benin v. Connecticut Mutual Life Insurance Company, cited above. Here the plaintiff valued his interest and took out a policy for only half of the sum estimated. He did not procure the policy for any purpose of speculating upon the duration of the life of Dillenberg. From the finding of the jury we'must take as true, that his representation was made in good faith upon an honest opinion as to the value of his interest. As to the alleged misstatement of the cause of the death of a brother of the deceased, it is sufficient to observe that there is no allegation on this subject in the answers of the plaintiff, and the point is taken simply because, in an answer to a previous application, that statement was made. Such previous answer cannot be incorporated into the present policy. The reference to the previous application is made for the answer to a different inquiry. There may be, as stated by counsel for the company, some inconsistencies between the charges given at its request, and those given at the request of Luchs. The latter present all the disputed questions of fact to the jury, and if those granted at its request are erroneous, in so far as they differ, it is not for it to complain, as was well observed by counsel, that while the judge held Luchs within proper limits, itself was suffered to go beyond them. Upon the whole record of the case we find no error sufficient to justify a reversal of the judgment. Judgment affirmed. 510 OCTOBER TERM, 1882. Argument for Appellants. WESTERN PACIFIC RAILROAD COMPANY & Another v. UNITED STATES. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. Practice—Public Lands. In a suit brought by a District Attorney of the United States to set aside a patent conveying public lands, objection was taken in this court that it does not sufficiently appear that the suit was brought under authority from the Attorney-General: Held, That, the objection not having been taken below, the fact of such authority could be inquired into and shown here. On the evidence it appeared that the lands in question were mineral lands, and were known to be such by the applicant for the patent, and agent for the railroad company, at the time of the application. The patent was set aside. The bill was filed in the court below in February, 1877. Hearing was had on the evidence, and in June, 1878, a decree was rendered setting aside the letter patent as “ issued by mistake and without authority of law.” The bill did not disclose any authority from the attorney-general to bring the suit, nor was such authority shown in the court below, nor was any objection taken for the want of the averment or the proof of such authority. The controversy below, upon the facts, was in regard to the character of the lands, whether mineral or not; and, upon the law, in regard to the effect of the acts of the agents of the United States upon the patentee’s title. The defendants below appealed from the decree. Hr. Henry Beard for the appellants.—I. It does not appear in the pleadings or decree that the United States, by its attorney-general, authorized the filing of the bill in this cause. This should have been averred in the bill. United States v. Throckmorton^ 98 U. S. 61.—II. The lands in question were not mineral lands within the meaning of that term as defined by acts of Congress. In the act of July 26th, 1866,14 Stat. 251, c. 262, § 2, mineral lands are defined as “ a vein or lode of quartz, or other rock in place, bearing gold, cinnabar, or copper,” in the act of July 9th, 1870, 16 Stat. ch. 217, 235, WESTERN PACIFIC R.R. CO. v. UNITED STATES. 511 Opinion of the Court. § 12, they are described as “ valuable mineral deposits in lands,” and in Rev. Stat. § 2318, as “ lands valuable for minerals.” The lands in question were, in the regular administration of the land laws, surveyed and ascertained to be non-mineral lands, and patented as such. A second survey, after the United States has parted with the land, is inoperative to affect the patent.—III. The third point discusses the evidence. Air. Assistant Attorney-General Afaury for the United States discussed the evidence, and presented the following letter from the attorney-general directing the commencement of suit. “ Department of Justice, “Washington, January 17th, 1877. “John M. Coghlan, U. S. Attorney, San Francisco, California. “Sir,—I enclose a copy of a letter of the 16th instant, addressed to me by the Secretary of the Interior, and the enclosures therewith, to wit : A copy of the report to the Secretary by the Commissioner of the General Land Office, and a copy of a letter of March 14th, 1874, addressed by the then commissioner to the register and receiver at San Francisco. “ As requested by the Secretary, you will cause legal proceedings to be instituted to vacate the patent to the Western Pacific Company of California for the N. E. one-fourth of section 29, T. 1 N., R. 1 E., Mount Diabolo meridian. “ Very respectfully, “Alphonso Taft, “ Attorney- General.” Mr. Justice Miller delivered the opinion of the court. John M. Coghlan, district attorney of the United States for the District of California, on behalf of the United States, brought the bill in this case in the circuit court of that district against the Western Pacific Railroad Company and Charles McLaughlin to set aside a patent of the United States conveying to the railroad company the northeast quarter of section 29, township one (1) north, range one (1) east, of Mount Diabolo meridian. This patent w^s made under the acts of Congress granting 512 OCTOBER TERM, 1882. Opinion of the Court. lands to the Union Pacific, Central Pacific, and Western Pacific Railroad Companies, to aid in building a road from the Missouri River to the Pacific Ocean. The acts of Congress granted to each company the alternate sections within certain limits on each side of its road, and authorized the issue of patents for the same when the work was done and the sections ascertained. But they excepted out of this grant, among others, such sections or parts of sections as were mineral lands. The bill in this case alleges, as the reason for Vacating and setting aside the patent, that the quarter-section in question is mineral land, that it was so at the time of the grant, and was known to be so when the patent issued, which was so issued without authority of law by inadvertence and mistake. The patent itself is not in the record as an exhibit, or as part of the evidence. The Western Pacific Railroad Company, to whom it was issued, though made defendant in the bill, was not served with the subpoena and did not appear. McLaughlin, the only defendant who did appear, defends as purchaser two degrees removed from the company. Instead of a general replication to McLaughlin’s answer, the reply is an amendment to the original bill. The whole record is so imperfect and the case so obscurely presented, that we feel tempted to dismiss it. Waiving, however, these objections, there is enough to enable us to consider the two principal errors assigned by appellant. The first of these is that there is no sufficient evidence that the suit was instituted under the authority of the Attorney-General, according to the principle established in the case of United States n. Throckmorton, 98 U. S. 61. To this it may be answered that the objection was not raised in this case in the court below, as it was in that; that the case is argued in this court on behalf of the government by the Assistant Attorney-General, who files in the court a certified copy of the order of the Attorney-General directing the district attorney to bring the suit in the circuit court, as requested by the Secretary of the Interior. We think the decree of that court, under these circumstances, WESTERN PACIFIC R.R. CO. v. UNITED STATES. 513 Opinion of the Court. can hardly be reversed now, on this ground, taken here for the first time. The other objection to the decree in favor of the United States is that the evidence does not establish as a fact that the land in controversy was mineral land when the patent issued. An examination of the evidence on this subject convinces us that the circuit judge was right in holding that it was. It is satisfactorily proven, as we think, that cinnabar, the mineral which carries quicksilver, was found there as early as 1863, that a man named Powell resided on the land and mined this cinnabar at that time, and in 1866 established some form of reduction works there; that these were on the ground when application for the patent was made by defendant McLaughlin, as agent of the Western Pacific Railroad Company, and that these facts were known to him. He is not, therefore, an innocent purchaser. Concurring as we do with the circuit court in the result arising from the evidence, we do not deem it necessary to give in this opinion a detailed examination of it. This being the first case of the kind in this court, a class of cases which may possibly be indefinitely multiplied, it is to be regretted that it was not more fully presented in the circuit court. Many interesting questions might arise in this class of cases not proper to be considered in this case. For instance, the nature and extent of mineral found in the land granted or patented which will bring it within the designation of mineral land in the various acts of Congress, in which it is excepted out of grants to railroad companies and forbidden to be sold or preempted as ordinary or agricultural lands are. Suppose that when such land has been conveyed by the government it is afterwards discovered that it contains valuable deposits of the precious metals, unknown to the patentee or to the officers of the government at the time of the conveyance, will such subsequent discovery enable the government to sustain a suit to set aside the patent or the grant ? If so, what are the rights of innocent purchasers from the grantee, and what limitations exist upon the exercise of the government’s right ? We can answer none of these questions here, and can °nly Order that the decree below be affirmed. vol. cvm—33 514 OCTOBER TERM, 1882. Opinion of the Court. VANCE & Another v. VANCE, Executrix. IN ERROR TO THE SUPREME COURT OF THE STATE OF LOUISIANA. Decided May 7th, 1883. Constitutional Law—Limitations—Louisiana—Minors—Statutes. The Civil Code of Louisiana provided, in respect of tutors of minors, as follows: “ The property of the tutor is tacitly mortgaged in favor of the minor from the day of his appointment as tutor, as security for his administration, and for the responsibility which results from it.” The Constitution of Louisiana subsequently adopted (in April, 1868), provided as follows: “ No mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease to have effect against third persons after the 1st January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges.” The legislature of Louisiana, on the 8th ¡March, 1869, enacted the necessary legislation to carry this provision of the State Constitution into effect: Held, 1. That these provisions of the Constitution and of the statute requiring owners of tacit mortgages to record them for the protection of innocent persons dealing with tbe tutor, and giving ample time and opportunity to do what was required, and what was eminently just to everybody, did not impair the obligation of contracts. 2. That these provisions are in the nature of statutes of limitations. Previous decisions of the court respecting limitations referred to and approved. 3. That the fact that the plaintiff was a minor when the law went into operation makes no difference. In the absence of a provision in the Constitution of the United States giving minors special rights, it is within the legislative competency of a State to make exceptions in their favor or not, and the act in question made no exception. J/r. Charles W. Hornor for plaintiff in error. Mr. E. M. Hudson for G. W. Sentell & Co., intervenors and defendants in error. Mr. Justice Miller delivered the opinion of the court. This is a writ of error to the Supreme Court of Louisiana. In a proceeding in the State court of Louisiana the plaintiff in error recovered a judgment against the defendant in error, as executrix of the succession of her husband, S. W. Vance, for the sum of about $75,000 due from him to plaintiff in error as VANCE v. VANCE. 515 Opinion of the Court. her natural tutor. The sum thus found due was the result of an accounting concerning this tutorship during the period between October 15th, 1859, and May 18th, 1877. Article 354 of the Civil Code of Louisiana, in force when this tutorship began, says : “ The property of the tutor is tacitly mortgaged in favor of the minor from the day of the appointment of the tutor, as security for his administration, and for the responsibility which results from it.” The court of probate, which adjusted this account, decreed in favor of the plaintiff in error, that her mortgage privilege for the sums and interest found due her be recognized on all the lands owned by Samuel W. Vance, the deceased tutor, on and after the 15th day of October, 1859. From this branch of the decree certain creditors of the deceased tutor, who had been permitted to intervene, appealed to the supreme court of the State, and that court reversed the decree of the probate court by deciding against the existence of this mortgage privilege. The ground on which this privilege was denied is found in article 123 of the Constitution of the State of Louisiana adopted in April, 1868, which is as follows : “ The general assembly shall provide for the protection of the rights of married women to their dotal and paraphernal property, and for the registration of the same ; but no mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated. The tacit mortgages and privileges now existing in this State shall cease to nave effect against third persons after the 1st January, 1870, unless duly recorded. The general assembly shall provide by law for the registration of all mortgages and privileges.” The legislature did pass the act of March 8th, 1869, No. 95 : “To carry into effect article 123 of the Constitution, and to provide for recording all mortgages and privileges.” Session Acts 1869, p. 114, section 11, reads : 516 OCTOBER TERM, 1882. Opinion of the Court. “ That it shall be the duty of the clerks of the district courts of the several parishes in this State to make out an abstract of the inventory of the property of all minors whose tutors have not been required by law to give bond for their tutorship, such abstract to describe the real property, and give the full amount of the appraisement of all the property, both real and personal, and rights and credits, and to deposit such abstracts with the recorders of the several parishes, whose duty it shall be to record the same as soon as received in the mortgage book of their parish ; such abstracts to be made out and deposited with the recorders by the first day of December, 1869, and recorded by the first day of January, 1870. This section to apply only to tutorship granted before the passage of this act, and any failure of the clerks or recorders to perform the service required by this section shall subject them to any damages that such failure may cause any person, and shall further subject them to a fine of not less than one hundred nor more than one thousand dollars, for the benefit of the public school fund, to be recovered by the district attorney or district attorney pro tern, before any court of competent jurisdiction ; such abstracts, when recorded in any parish in which the tutor owns mortgageable property shall constitute a mortgage on the said tutor’s property until the final settlement and discharge of the tutor : the fees for making out and recording such abstracts shall be the same as the fees prescribed for the clerks and recorders for other similar services, and shall be paid on demand by the tutor, or, if the minors have arrived at the age of majority, by them ; and if no responsible person can be found, then any property owned by the minors for whose benefit such services were performed shall be sold to pay the same ; and if no person or property be found to pay the same, then the parish shall pay the same, and have recourse against the person or property of any person for whose benefit the services were performed. The case comes to this court on the proposition, that, as thus construed, the Constitution and statute of Louisiana impair the obligation of her contract with her tutor concerning his dutj to account for her estate in his hands, and also violates the pro vision of section 1, article XIV., of the amendments to t e Constitution of the United States. The view of the Supreme Court of Louisiana on this ma er VANCE v. VANCE. 517 Opinion of the Court. is very clearly presented, in the following extract from its opinion in the case: “Waiving the question (which is certainly a debatable one), whether or not the obligations and mortgages existing against the natural tutor in favor of his ward' arise or spring from contracts, we think the plaintiff’s argument untenable, in that it assumes that article 123 destroyed or impaired plaintiff’s mortgage obligation in the sense of the Constitution of the United States. Had the article simply declared the abolition and extinction eo instanti of all tacit mortgages, there would have been the case presented by plaintiff’s argument. But it did nothing of the sort. It fixed a future day, reasonably distant, and declared that such mortgages would perempt, prescribe, or cease to exist as to third persons unless recorded by that date. “ It is in its nature a statute of limitations. The right of the State to prescribe the time within which existing rights shall be prosecuted, and the means by and conditions on which they may be continued in force, is, we think, undoubted. Otherwise, where no term of prescription exists at the inception of a contract, it would continue in perpetuity, and all laws fixing a limitation upon it would be abortive. Now, it is elementary that the State may establish, alter, lengthen, or shorten the period of prescription of existing rights, provided that a reasonable time be given in future for complying with the statute.” See Cooley’s Constitutional Limitations, p. 376; Story on Constitution, 236, § 1385. These observations seem to us eminently just. The strong current of modern legislation and judicial opinion is against the enforcement of secret liens on property. And in regard to real property, every State in the Union has enacted statutes holding them void against subsequent creditors and purchasers, unless they have actual notice of their existence, or such constructive notice as arises from registration. The Constitution of Louisiana introduced this principle ¿Ind did it with due regard to existing contracts. It did not change, defeat, or impair the obligation of the tutor to perform that contract. It did not take away or destroy the security which existed by way of hen on the tutor’s property, nor as between 518 OCTOBER TERM, 1882. Opinion of the Court. the tutor and the ward did it make any change whatever. But it said to the latter: “You have a secret lien, hidden from persons who are dealing every day with the tutor on the faith of this property, and in ignorance of your rights. We provide you a way of making those rights known by a public registration of them which all persons may examine, and of which all must take notice at their peril. We make it the duty of officers having charge of the offices where the evidence of your claim exists to make this registration. We make it your duty also to have it done. We give you a reasonable time after this Constitution is passed and after the enabling statute is passed to have this registration made. If it is not done within that time your debt remains a valid debt, your mortgage remains a valid mortgage, but it binds no one who acquires rights after that in ignorance of your mortgage, because you have not given the notice which the law requires you to give.” We think that the law, in requiring of the owner of this tacit mortgage, for the protection of innocent persons dealing with the obligor, to do this much to secure his own right, and protect those in ignorance of those rights, did not impair the obligation of the contract, since it gave ample time and opportunity to do what was required and what was eminently just to everybody. The authorities in support of this view are ample. Perhaps the case most directly in point is one in this court, namely, Curtis v. Whitney, 13 Wall. 68. That was a case like this, arising out of a statutory contract, to which the legislature, by a law enacted after it was made, added, as in this, the duty of giving notice. Curtis purchased at a public sale for delinquent taxes a tract of land, and received from the proper officer a certificate, which by law authorized her' to obtain a deed at the end of three years, if the land was not redeemed by paying the amount of the bid and interest. After this sale, and before the end of the three years, the State passed an act that, where any person was found in the actual occupancy of the land, the deed should not issue unless VANCE v. VANCE. 519 Opinion of the Court. a written notice had been served on the owner of the land or on the occupant by the holder of the tax certificate at least three months prior thereto, and it was made applicable to past sales as well as future. Mrs. Curtis applied for and obtained her deed without giving this notice, and when she brought suit to quiet the title so acquired, the Supreme Court of Wisconsin decided her deed void for want of it. The case was brought to this court on the ground that the statute of Wisconsin requiring this notice impaired the obligar tion of the contract evidenced by the certificate of sale, but this court held that it did not. That the case is very like the one before us is obvious. The court said: “ That the statute is not void because it is retrospective has been repeatedly held by this court, and the feature of the act of 1867, which makes it applicable to certificates already issued for tax sales, does not of itself conflict with the Constitution of the United States. Nor does every statute which affects the value of a contract impair its obligations. It is one of the contingencies to which parties look now in making a large class of contracts that they may be affected in many ways by State and by national legislation. For such legislation demanded by the public good, however it may retroact on contracts previously made, and enhance the cost and difficulty of performance, or diminish the value of such performance to the other party, there is no restraint in the federal Constitution, so long as the obligation of performance remains in full force. In the case before us the right of the plaintiff is not taken away nor the time when she would be entitled to it postponed. . . . The right to the money or the land remains, and can be enforced whenever the party gives the requisite legal notice. The authority of the legislature to frame rules by which the right of redemption may be rendered effectual cannot be questioned, and among the most appropriate and least burdensome of these is the notice required by statute.” In the case of Louisiana v. New Orleans^ 102 IT. S. 203; the supreme court of the State refused the relator a writ of mandamus to enforce a levy of taxes to pay a judgment against the city, on ■which an execution had been issued and a 520 OCTOBER TERM, 1882. Opinion of the Court. return, of nulla bona made. The supreme court denied the writ because the relator had not registered his judgment with the proper officer of the city, under a statute which required such registry in order that proper levy of taxes might be made and judgments paid in their proper order. The case was brought to this court on the proposition that the statute, which was enacted after relator’s contract was made, was an impairment of its obligation within the meaning of the Constitution of the United States. . But this court held that the registry of these judgments was “ a convenient mode of informing the city authorities of the extent of the judgments, and that they have become executory, to the end that proper steps may be taken for their payment. It does not impair existing remedies.” - In Jackson v. Lamphire, 3 Pet. 280, this court said: “ It is within the undoubted power of State legislatures to pass recording acts, by which the eldei’ grantee shall be postponed to a younger, if the prior deed is not recorded within the limited time ; and the power is the same, whether the deed is dated before or after the recording act. Though the effect of such a law is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law impairing the obligation of contracts. Such, too, is the power to pass acts of limitation, and their effect. Reason and sound policy have led to the general adoption of laws of both descriptions, and their validity cannot be questioned.” And this language is reproduced with approval in the case of Curtis n. Whitney, above referred to. The decisions in regard to the statute of limitation are full to the same purpose, and as the Supreme Court of Louisiana says, this is a statute of limitation, giving a reasonable time within which the holder of one of these secret liens may make it public, otherwise it will be void against subsequent purchasers and creditors without notice. The case of Terry v. Anderson, 95 U. S. 628, presents, in the terse language of the Chief Justice of this court, both the rule, the reason for it, and the limitation which the cpnstitu- VANCE v. VANCE. 521 Opinion of the Court. tional provision implies. This court, he says, “ has often decided that statutes of limitation affecting existing rights are not unconstitutional, if a reasonable time is given for the enforcement of the action before the bar takes effect.” He adds, in reference to the case then before the court, which was a South Carolina statute of limitation, passed since the civil war: “ The business interests of the entire people of the State had been overwhelmed by a calamity common to all. Society demanded that extraordinary efforts be made to get rid of old embarrassments, and permit a reorganization upon the basis of the new order of things. This clearly presented a case for legislative interference within the just influence of constitutional limitations. For this purpose the obligations of old contracts could not be impaired, but their prompt enforcement could be insisted upon, or an abandonment claimed. That, as we think, has been done here, and no more.” And Jackson v. Lamphire is again cited with approval. The same principle is asserted in the case of Koshkoning v. Burton, 104 U. S. 668. Other cases in this court are Hawkins v. Barry's Lessee, 5 Pet. 457; Sabin v. Waterson, 17 Wall. 596 ; Sturges v. Crowninshield, 4 Wheat. 122. It is urged that because the plaintiff in error was a minor when this law went into operation, it cannot affect her rights. But the Constitution of the United States, to which appeal is made in this case, gives to minors no special rights beyond others, and it was within the legislative competency of the State of Louisiana to make exceptions in their favor or not. The exemptions from the operation of statutes of limitation usually accorded to infants and married women do not rest upon any general doctrine of the law that they cannot be subjected to their action, but in every instance upon express language in those statutes giving them time after majority, or after cessation of coverture, to assert their rights. No such provision is made here for such exception, but, in place of it, the legislature has made it the duty of the proper officer of the court to act 522 OCTOBER TERM, 1882. Opinion of the Court. for them. It was also the duty of the under tutor appointed in this case. If the foregoing considerations be sound, they answer also effectually the suggestion in regard to the Fourteenth Amendment of the Constitution of the United States. We see no error in the record of the case of which this court has jurisdiction, and The decree of the Supreme Court of Louisiana is affirmed. WASHINGTON AND GEORGETOWN RAILROAD COMPANY v. DISTRICT OF COLUMBIA. APPTCAT, FROM THE SUPREME COURT OF THE DISTRICT OF COLUMBIA. Decided May 7th, 1883. District of Columbia. The relation between the railroad company and the District respecting the maintenance and repair of the streets in the District through which the railroad passes considered and settled. Mr. Enoch Totten for appellant. Mr. A. G. Riddle for appellee. Mr. Justice Miller delivered the opinion of the court. This is an appeal from a decree of the Supreme Court of the District of Columbia dismissing the bill of appellant. The questions presented by the appeal arise out of the execution of the act of Congress of July 17th, 1876, “authorizing the repavement of Pennsylvania avenue.” That act created a commission, consisting of two officers of the engineer corps of the army and the architect of the capitol, whose duty it was to contract for and superintend the work and to decide upon the character of the material. It also declared in what proportion the expense of the work should be borne by the owners of property along the line of the avenue, namely, the United States, the District of Columbia, the private citizens, the Washington & Georgetown Railroad Company, whose track WASH. & GEORGET’N R.R. CO. v. DIS. COLUMBIA. 523 Opinion, of the Court. ran through the centre of the avenue, and other railroad companies whose tracks crossed the street at several places. So much of this apportionment of expenses as relates to the appellant is in these words: “ Sec. 3. That the cost of laying down said pavement shall be paid for in the following proportions and manner : The Washington & Georgetown Railroad Company shall bear all of the expense for that portion of the work lying between the exterior rails of the tracks of the road, and for a distance of two feet from and exterior to the track on each side thereof, and of keeping the same in repair ; but the said railroad company, having conformed to the grade established by the commissioners, may use cobblestone or Belgian rock in paving their tracks, or the space between their tracks, as the commissioners shall direct.” 19 Stat. 93. This is in strict conformity to the charter of the company, passed in 1862, the fourth section of which enacts: “ That said corporation hereby created shall be bound to keep said tracks, and for the space of two feet beyond the outer rail thereof, and also the space between the tracks, at all times well paved and in good order, without expense to the United States or to the cities of Georgetown and Washington.” The fifth section requires the company to conform their road to any change of the grade of the street; and the sixth, that the act may at any time be altered, amended or repealed by Congress. 12 Stat. 389. The act of 1876, under which the work of repaving was done, in section four provides “ that assessments shall be made by the commissioners of the District of Columbia upon the owners of said private property on said avenue and spaces and upon said railroad company respectively, provided in section three of this act,” and for the collection of the same by the collector of the District of Columbia. It is also enacted that, on failure of the railroad company or any private citizen to pay such assessment, the commissioners of the District shall issue certificates, bearing ten per cent, interest, payable within one year, which are made a ken on the 524 OCTOBER TERM, 1882. Opinion of the Court. property, under which it may be sold at the end of the year, if not paid. The railroad company was assessed by the commissioners of the District in the sum of $19,886.69, whereas they charge that they are only liable for $12,207.27; and as the commissioners were about to issue a certificate for the larger amount, the company paid or tendered the sum which they acknowledge to be due, and filed their bill in chancery to obtain an injunction as to the remainder. This difference is owing to the fact that alongside of the exterior rails of the track the paving commissioners required a blue granite stone to be laid the whole length of the pavement, five inches in width and eight inches deep, and each stone about three feet long. This was charged wholly to the company, as well as the remainder of the two feet next adjoining said track on the outside of the rails. As regards this remainder the company make no objection, but they insist that the entire cost of all the paving on each side of their track to the sidewalk should be computed together, and the charge against the company should be in the proportion which those two feet bear to the entire distance from each exterior rail to the sidewalk. As this string of stone paving is more costly than the Neufchatel and Trinidad material, which constitute the main body of the pavement, this would relieve the company of a part of the cost of the two feet adjacent to their track. As a matter of strict justice, no reason can be seen for this proposition, for it is quite clear that the requirement of this string or curb of blue granite is wholly due to the existence of the tracks of the railroad in the middle of the street, and is also mainly, if not wholly, for the protection of the track alongside of which it is laid. Nothing can be more just, than that the company should pay for the work which its track alone makes necessary. Nor is there any question that, if this stone was necessary in laying down this new pavement, for the security and durability of the track itself, or of the pavement near the track, the company was bound, by the fourth section of its charter, to pay the expense. That it was a judicious and proper thing to be WASH. & GEORGET’N R.R. CO. v. DIS. COLUMBIA. 525 Opinion of the Court. done is scarcely controverted, and if it were, the testimony shows very clearly that it was. The only question, therefore, that remains, is whether Congress, in the distribution of the expense of this work of repaving the avenue, intended that this should be borne by the company. The language of Congress, on that subject, would seem to admit of no other construction. The third section, already cited, says: “ The Washington and Georgetown Railroad Company shall hear all the expense for that portion of the work lying between the exterior rails of the tracks of the road, and for a distance of two feet from and exterior to the track on each side thereof, and of keeping the same in repair.” So far from relieving the company of the duty which it accepted by its charter, the language reinforces that obligation and makes its application to the repavement clear. The statute goes on to prescribe what the United States shall pay, and what the District of Columbia shall pay, and what individual owners shall pay; and the proportions in which these parties are to be charged have no relation to the part to be paid for by the railroad company, which is, in no case, a proportionate part of the street along which it runs, but all the expense of the work inside its rails, and for two feet exterior to this on each side. There is no room for apportionment here, and if, for so much of this two feet as is of the same material as the main surface of the street, which is separated from it by no visible line, the easiest mode of ascertaining its cost is to calculate its relation to the remainder of the pavement, that is no reason why this extra and separable expense of blue stone should not be assessed, as the law requires, exclusively to the company. But it is said that the paving commissioners adopted the rule of a general apportionment of all the expense, and reported to the commissioners of the District on that basis, as due from the company, the smaller sum of $12,207.27, and that their report is conclusive. The report thus made is nowhere in the statute made their 526 OCTOBER TERM, 1882. Syllabus. special duty, nor are they anywhere authorized to make the final assessment. ' The report was merely a suggestion of their views for the action of the District commissioners. On the other hand, by the express language of the act, these latter commissioners are directed to make the assessment on which the parties are to pay, and on which, if they do not pay, a certificate shall be issued which becomes an interest-bearing hen on their property. Another source of complaint is, that in making the necessary excavations for the new pavement, it became necessary to support the track of the company by underpinning, which cost $1,052.12, and was paid for by the paving commissioners. This work was wholly for the benefit of the railroad company. It was to prevent the track from falling or caving in while used during the progress of the work, and the city authorities might have left the company to take care of itself. But as this might have delayed the work or led to litigation, they wisely protected it wThile they worked. It seems to us a proper charge against the company alone, as they alone were benefited, and their track made it necessary. There is no error in the record, and The decree of the Suprente Court of the District is affirmed. RUGGLES v. ILLINOIS. IN ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS. Decided May 7th, 1883. Constitutional Law—Contracts—Illinois Railroads—Statutes. An amendment was made to the charter of a railroad company in Illinois providing that “the said company shall have power to make, ordain an establish all such by-laws, rules arid regulations as may be deemed expedient and necessary to fulfil the purposes and carry into effect the provisions of this act, and for the well ordering, regulating and securing the affairs, business, and interest of the company : Provided, That the same be not repugnant to the Constitution and laws of the United States, or repugnant to RUGGLES v. ILLINOIS. 527 Statement of Facts. this act. The board of directors shall have power to establish such rates of toll for the conveyance of persons or property upon the same, as they shall from time to time by their by-laws determine, and to levy and collect the same for the use of the said company: ” Held, That inasmuch as the power to establish rates was to be exercised through by-laws, and the power to make by-laws was restricted to such as should not be repugnant (among other things), to the laws of the State, the amendment did not release the company from restrictions upon the amount of rates contained in general and special statutes of the State. Grants of immunity from legitimate] governmental control are never to be presumed; unless an exemption is clearly established the legislature is free to act on all subjects within its general jurisdiction, as the public interests may require. When there is an ambiguity in the language of a statute it may be necessary to inquire into the objects of the legislature in its enactment; or, if it be a private act, the purposes of the beneficiaries in asking for it; but when the language is clear, and needs no interpretation, and leads to no absurd conclusion, this will not be done. Complaint before a justice of the peace in Illinois against Ruggles for assault and battery upon one Lewis. Lewis came on board a train on the Chicago, Burlington and Quincy Railroad without a ticket. He tendered Ruggles, the conductor, fare at the rate of three cents a mile. Ruggles refused to receive it and demanded the established rate of the company, which was more. Lewis not paying this, Ruggles attempted at the next station, but without violence, to remove him from the train. This was the alleged assault. Ruggles was convicted. The case was appealed until it reached the Supreme Court of the State, when the judgment was affirmed. The case came up on a writ of error, with the following certificate of the chief justice of the Supreme Court of Illinois: “ This certifies that in the determination of this case there was necessarily drawn in question the construction of that clause of the Constitution of the United States which prohibits a State from passing laws impairing the obligation of contracts. The plaintiff in error or appellant claimed that he was justified in the act for which he was prosecuted in the court below by the charters of the Chicago, Burlington and Quincy Railroad Company, he being a conductor on the railroad of said company, and that said charters conceded to said company the right to fix the rates for the 528 OCTOBER TERM, 1882. Opinion of the Court. transportation of persons and property over and upon said road, and that said charters constituted a contract substantially guaranteed and protected by the Constitution of the United States ; and I certify that said claim was disallowed and decided adversely to the said appellant, by the said Supreme Court, upon the ground that by virtue of the provisions of a statute of the State of Illinois, passed subsequently to the granting of the charters of the said Chicago, Burlington and Quincy Railroad Company, a less rate of fare for transportation of persons and property upon said road had been established by State authority than the rate fixed by the company under the authority of its charter, and that said statute controlled the charter of the company in regard to the rates of transportation over and upon said road, and that the provisions of said charters granting to said company the right to fix the rates for the transportation of persons and property over its road did not constitute a contract protected by the Constitution of the United States, but was subject to alteration and modification by the legislature of Illinois, all of which is hereby duly certified, to the end that the said appellant may present the said question to the Supreme Court of the United States for adjudication.” Mr. Wirt. Dexter and Mr. Sidney Bartlett for the plaintiff in error. Mr. James K. Edsall and Mr. James McCartney for the defendants in error. Mr. Chief Justice Waite delivered the opinion of the court. In the view we take of this case, the only question that need be considered is, whether the charter of the Central Military Tract Railroad Company, one of the Illinois corporations which, through agreements of consolidation, are now represented by the Chicago, Burlington, and Quincy Railroad Company, purports on its face to grant to the company the right to fix the rates of fare and freight to be charged for the conveyance of persons and property on its railroad, free of all control by the State. If, on examination, we find that no such grant was intended, it will be unnecessary to decide whether one legislature has the power to bind succeeding legislatures by a contract to that effect. RUGGLES v. ILLINOIS. 529 Opinion of the Court. The provisions of the charter relied on to establish such a grant may be stated as follows : On the 5th of November, 1849, an act was passed by the general assembly of Illinois “ to provide for a general system of railroad incorporations.” That act contained the following provisions : “§ 12. The directors of such company shall have power to make by-laws for the management and disposition of stock, property, and business affairs of such company, not inconsistent with the laws of this State, and prescribing the duties of officers, artificers, and servants that may be employed, for the appointment of all officers for carrying on all the business within the object and purposes of such company. 21. Every such corporation shall possess the general powers and be subject to the general liabilities and restrictions expressed in the special powers following, that is to say : * * * * * * * “ 8. To take, transport, carry, and convey persons and property on their railroad, by the force and power of steam, of animals, or any mechanical powers, or by any combination of them, and receive tolls or compensation therefor. * is is is is iS iS “10. To regulate the time and manner in which passengers and! property shall be transported,' and the tolls and compensation to be paid therefor ; but such compensation for any passenger and his ordinary baggage shall not exceed three cents a mile, unless: by special act of the legislature, and shall be subject to alteration as hereinafter provided. * * * is is is is 32. The legislature may, when any such railroad shall be opened for use, from time to time, alter or reduce the rates of toll, fare, freight, or other profits upon such road ; but the same shall not, without the consent of the corporation, be so reduced as to produce with said profits less than fifteen per cent, per annum on the capital actually paid in ; nor, unless on an examination of the amounts received and expended, to be made by the Secretary of State, he shall ascertain that the net income divided by the com- vol. cviii—34 530 OCTOBER TERM, 1882. Opinion of the Court. pany from all sources for the year then last past shall have exceeded an annual income of fifteen per cent, upon the capital of the corporation actually paid in.” On the 15th of February,. 1851, another act was passed to incorporate the Central Military Tract Railroad Company, for the purpose of building and using a railroad between certain designated points. Section 3 of that act is as follows: “ § 3. The said company is hereby created and incorporated for the purpose of organizing under an act entitled ‘ An Act to provide for a general system of railroad incorporations,’ in force November 5th, 1849, and in all things shall be governed by the provisions thereof, and shall be entitled to have and exercise the powers and privileges and be subject to the liabilities therein enumerated: Provided, That the foregoing corporation may attach themselves to and form a part of the Northern Cross Railroad Company, in such manner or on such terms as said companies shall agree.” On the 19th of June, 1852, another act was passed “ to amend an act entitled1 An Act to incorporate the Central Military Tract Railroad Company.’” The following are the parts of this amending act on which, in our opinion, the case depends: “ § 5. All the corporate powers of said company shall be vested in and exercised by a board of directors, and such officers and agents as they shall appoint. * * * “ § 6. The said company shall have power to make, ordain, and establish all such by-laws, rules and regulations as may be deemed expedient and necessary to fulfil the purposes and carry into effect the provisions of this act, and for the well ordering, regulating, and securing the affairs, business, and interest of the company : Provided, That the same be not repugnant to the Constitution and laws of the United States or of this State, or repugnant to this act. The board of directors shall have power to establish such rates of toll for the conveyance of persons or property upon the same, as they shall from time to time by their bylaws determine, and to levy and collect the same for the use o the said company. The transportation of persons and property, the width of track, and all other matters and things respect- RUGGLES v. ILLINOIS. 531 Opinion of the Court. ing the use of said road, shall be in conformity to such rules and regulations as the said board of directors shall from time to time determine.” It is contended on the part of the company that this amending act repeals clause 10 of section 21 as well as section 32 of the general railroad law, so far as they are applicable to the Central Military Tract Company, and that under section 6 of the amending act the directors have absolute control of rates of fare and freight free of legislative interference. We deem it unnecessary to determine the question of repeal, because on full consideration we are satisfied that section 6 does not have the effect that is claimed for it. Grants of immunity from legitimate governmental control are never to be presumed. On the contrary, the presumptions are all the other way, and unless an exemption is clearly established the legislature is free to act on all subjects within its general jurisdiction as the public interests may seem to require. As was said by Chief Justice Taney, speaking for the court, in Charles River Bridge v. Warren Bridge, 11 Pet. 420, 547; “ It can never be assumed that the government intended to diminish its power of accomplishing the end for which it was created.” This is an elementary principle. In Chicago, Burlington & Quincy Railroad Company v. Iowa, 94 U. S. 155 ; Peik v. Chicago <& Northwestern Railway Company, 94 U. S. 164; and Winona & St. Peter Railroad Company v. Blake, 94 U. S. 180, it was determined that “ a State may limit the amount of charges by railroad companies for fares and freights, unless restrained by some contract in the charter.” The right to a reversal of the present judgment rests on. the question whether this company has any such restraining contract, and that depends on the effect to be given the amending section 6. The company by its original charter was authorized to transport passengers and property and to receive compensation therefor. This, if there had been nothing more, would, under the rule stated in Munn v. Illinois, 94 U. S. 113, and the several railroad cases decided at the same time, require the 582 OCTOBER TERM, 1882. Opinion of the Court. company to carry at reasonable rates, and leave the legislature at liberty to fix the maximum of what would be reasonable. So that, laying aside the limitations of the old charter, the question here is whether the amending section relied on has the effect of taking away from the State this power of legislative regulation. The amending section provides that the company “ shall have power to make, ordain, and establish all such by-laws, rules, and regulations as may be deemed expedient and necessary to fulfil the purposes and carry into effect the provisions of this act, and for the well ordering, regulating, and securing the affairs, business and interest of the company : Provided, That the same be not repugnant to the Constitution and laws of the United States, or of this State, or repugnant to this act.” By section 5, all the powers of the company were vested in and could be exercised by the directors. Clearly under this authority no by-law can be established by the directors that does not conform to the laws of the State, and this, whether the laws were in force when the amended charter was granted or came into operation afterwards. The power of the company for the regulation of its own affairs was thus in express terms subjected to the legislative control of the State. The corporate power was a continuing one and intended for the ordering of the affairs of the company as circumstances might from time to time require. The reserved control by the State was also continuing in its nature, and manifestly intended for the protection of the public whenever in the judgment of the legislative department of the government the necessity should arise. Then follows the special provision on which the claim of a contract is predicated. It is as follows : “ The board of directors shall have power to establish such rates of toll for the conveyance of persons or property upon the same as they shall from time to time by their by-laws determine, and to levy and collect the same for the use of the company.” This is the form in which the power to charge and collect compensation for the carriage of persons and property was RUGGLES v. ILLINOIS. 533 Opinion of the Court. granted by the amended charter. The rates must be fixed by by-laws, and no by-law can be made that is at all repugnant to the laws of the State. The first paragraph of the section, with its proviso, prescribes generally what is necessary to the validity of a by-law, and the second allows the directors to fix rates by by-laws. It is undoubtedly true that the first paragraph neither adds to nor takes from the inherent power of a corporation to make by-laws for the regulation of its affairs, and that the proviso is nothing more than a legislative declaration of the principle of the common law that all by-laws must be reasonable, and not in conflict with the laws of the State. But the very fact that such a provision would have been implied,- adds to the significance of its incorporation in express terms into the charter, and manifests a determination not to leave room for doubt as to the right of the State to use its legislative power if necessary for the regulation of the affairs of the corporation, at least by the enactment of general laws applicable to all corporations of a like character, and engaged in a like business. There is nothing wrhich even in the remotest degree indicates that a by-law fixing rates is to be of a different character from those regulating the other business of the company. When, therefore, in a section of the charter which expressly declares that no by-law shall be made that is in conflict with the laws of the State, we find that the rates of charge to be levied and collected for the conveyance of persons and property are to be regulated by by-laws, the conclusion is irresistible that only such charges can be collected as are allowed by the laws of the State. This implies that, in the absence of direct legislation on the subject, the power of the directors over the rates is subject only to the common-law limitation of reasonableness, for in the absence of a statute, or other appropriate indication of the legislative will, the common law forms part of the laws of the State to which the corporate by-laws must conform. But since, in the absence of some restraining contract, the State may establish a maximum of rates to be charged by railroad companies for the transportation of persons and property, it follows that when a maximum is so established the rates fixed by the directors must conform to its 534 OCTOBER TERM, 1882. Opinion of the Court. requirements, otherwise the by-laws will be repugnant to the laws. It is argued, however, that this cannot be the meaning of the amending act, because, if the company had, under its old charter, the absolute right of fixing rates, subject only to a limit of three cents a mile on passengers, and the State had no power to interfere, except to keep the annual profits down to fifteen per cent, per annum on the paid-up capital, no one can believe it would have surrendered such a privilege and taken in lieu another so unfavorable as this. It is undoubtedly true, as was claimed in argument, and has been often said from the bench, that amendments to the charters of corporations are usually made at the solicitation of the corporations themselves, who cause the bills to be prepared and submitted to the legislatures for enactment, and that, if there is doubt as to the construction of what is enacted, this fact may be resorted to in aid of interpretation. But Vattel’s first general maxim of interpretation is that “ it is not allowable to interpret what has no need of interpretation,” and he continues: “ When a deed is worded in clear and precise terms—when its meaning is evident and leads to no absurd conclusion—there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it.” Vattel’s Law of Nations, 244. Here the words are plain and interpret themselves. The directors may establish such by-laws as they please, provided they are not repugnant to the Constitution and laws, and they may by their by-laws regulate the rates of fare and freight. As their by-laws must conform to the laws of the State, so must their rates. If the State had not the legislative power to regulate the charges of carriers for hire, the case would be different. But that question has been settled, and the amended charter which this company secured from the legislature must be construed in the fight of that establishe power. Without, therefore, undertaking to determine what rights as to fares and freights were secured to the company under t e old charter, nor whether more was gained by the other pro- RUGGLES v. ILLINOIS. 535 Concurring Opinion: Harlan, J. visions of the new charter than was lost by the acceptance of section six as it was enacted, We affirm the judgment. Me. Justice Harlan concurring. In Munn v. Illinois, 94 U. S. 113, this court held that there was nothing in the Constitution of the United States which prevented the legislature of Illinois from fixing, by statute, the maximum of charges for the storage of grain in warehouses at Chicago and other places in that State, where grain is stored in bulk, and in which the grain of different owners is mixed together, or in which the grain is stored in such a manner that the identity of different lots or parcels cannot be accurately preserved. Immediately following that case is Chicago, Burlington ch Quincy Bailroad Company v. Iowa, 94 U. S. 155, which involved the validity of a statute of Iowa establishing “ reasonable maximum rates of charges for the transportation of freights and passengers” on the different railroads of that State. Touching that case it may be observed that the court conceded that a railroad corporation might be protected by its charter against absolute legislative control as to rates of fare and freight, but that the power of the corporation which there questioned the validity of the law of Iowa was, by its charter, made subject to such legislation as the legislature might, from time to time, establish. “ They [railroad corporations] are, therefore,” said the court, “engaged in public employment affecting the public interest, and, under the decision in Munn v. Illinois, subject to legislative control, unless protected by their charters. The Burlington & Missouri River Railroad Company, the benefit of whose charter the Chicago, Burlington & Quincy Railroad Company now claims, was organized under the general corporation law of Iowa, with power to contract, in reference to its business, the same as private individuals, and to establish by-laws and make all rules and regulations deemed expedient in relation to its affairs, but being subject, nevertheless, at all times, to such rules and regulations a^s the general assembly of Iowa might, from time to time, enact 536 OCTOBER TERM, 1882. Concurring Opinion: Harlan, J. and provide. This is, in substance, its charter, and to that extent it is protected as by a contract ; for it is now too late to contend that the charter of a corporation is not a contract within the meaning of that clause in the Constitution of the United States which prohibits a State from passing any law impairing the obligation of a contract. Whatever is granted is secured subject only to the limitations and reservations in the charter, or in the laws or constitutions which govern it.” In Peik n. Chicago & Northwestern Railway Company, 94 U. S. 164, a similar statute of Wisconsin was sustained as within the power of its legislature to enact. The court said : “Tn Munn n. Illinois and Chicago, Burlington & Quincy Railroad Company n. Iowa, we decided that the State may limit the amount of charges by railroad companies for fares and freight, unless restrained by some contract, even though their income may have been pledged as security for the payment of obligations incurred upon the faith of the charter ” It was also said in that case : “ When property has been clothed with a public interest, the legislature may fix a limit to that which shall, in law, be reasonable for its use. This limit binds the courts as well as the people.” The language last quoted, it must not be overlooked, was used in reference to a railroad charter granted under the Constitution of Wisconsin, which expressly provided that all acts for the creation of corporations within the State “may be altered or repealed by the legislature at any time after their passage.” In Winona db St. Peter Railroad Company v. Blake, 94 U. S. 180, it was decided that, as there was nothing in the charter of the railroad company limiting the power of the State to regulate charges for freight and passengers, it was competent for the legislature to require the company to carry on equal and reasonable terms ; this, because, as the court ruled, it was incident to the occupation in which the corporation was engaged, RUGGLES v. ILLINOIS. 537 Concurring Opinion: Harlan, J. and for which it was created a carrier, to collect only a reasonable compensation for carriage. . The act was there held as adding nothing to, and taking nothing from the grant as contained in the original charter. These cases establish, among others, these principles : 1. That the charter of a railroad corporation is a contract within the meaning of the contract clause of the federal Constitution. 2. That such corporation may be protected by its charter against absolute legislative control in the matter of rates for the carriage of passengers and freight. 3. That when the charter is granted subject to such regulations as the legislature from time to time may provide, or subject to the authority of the legislature to alter or repeal it, in either of such cases the legislature has the same power over rates or tolls that it had when the charter was granted. 4. In the absence of statutory regulations upon the subject, it is necessarily implied from the occupation of a railroad corporation that it shall exact only reasonable compensation for carriage. How far these principles control the present case I proceed now to inquire. The general railroad law of 1849 authorized railroad corporations created under it to regulate tolls and compensation for the transportation of passengers and property, subject to these restrictions : That compensation for a passenger and his ordinary baggage should not exceed three cents a mile, unless by special act of the legislature ; further, that the legislature may, from time to time, alter or reduce the rates of toll, fare, freight, or other profits upon such railroad, provided the same should not, without the consent of the corporation, be so reduced as to produce with said profits less than fifteen per cent, per annum on the capital actually paid in, nor, unless on an examination of the amounts received and expended, to be made by the Secretary of State, he shall ascertain that the net income derived by the company from all sources for the year then last passed exceeded an annual income of fifteen per cent, upon the capital so actually paid in. The act of February 15th, 1851, incorporating the Central Military Tract Railroad Company—one of the constituent cor- 538 OCTOBER TERM, 1882. Concurring Opinion: Harlan, J. porations which, by consolidation, make the Chicago, Burlington and Quincy Railroad Company, and to the benefit of whose charter the latter is entitled—declares that it is created for the purpose of organizing under the general law of 1849, “ and in all things shall be governed by the provisions thereof, and shall be entitled to have and exercise the powers and privileges and be subject to the liabilities therein enumerated.” The provisions of the act of 1849, enumerating the powers and privileges to be enjoyed by, and the liabilities imposed upon, corporations organized thereunder, thus became a part of the charter of the Central Military Tract Railroad Company. If the determination of this case turned solely upon the question whether the act of 18 71 establishing maximum charges for all railroads in Illinois, deprived this company of any contract right declared or given by the law of 1849, there would be no difficulty in affirming the judgment ; for, in the first place, the amount tendered, in this case, to conductor Ruggles, and which he refused to accept as the entire compensation to be paid by Lewis, the passenger, was all that was allowed by the act of 1871, and all that the company, in the absence of a special act, was permitted by the law of 1849 to collect; further, there is no evidence in the record that the passenger rates as established by the act of 1871, will reduce the profits of the company below the aggregate amount which by its charter it was entitled to realize, and within which the legislature, by express reservation, could restrict it. But in behalf of appellant it is contended that by the sixth section of the act of June 19th, 1852, the corporation was invested with absolute control, through its directors, of the whole subject of rates ; in other words, that the legislature, in that section, removed the restriction in the act of 1849 of three cents per mile for a passenger and his ordinary baggage, and, by necessary implication, surrendered its power to make even the reduction provided for in that statute. In this view, as to the construction of the act of 1852,1 do not concur. That act is not absolutely inconsistent, upon the subject of rates, with the general statute of 1849. They may stand together, and since repeals by implication are not favored, RUGGLES v. ILLINOIS. 539 Concurring Opinion: Harlan, J. they should be so construed as, if possible, to make them both operative. The statute of .1849 gave the corporation the general power, within a certain limit, of regulating tolls and compensation to be paid for the transportation of passengers and property. But it did not prescribe the particular mode by which the public should be informed as to the rates established. I incline to think that the purpose of the act of 1852 was to declare, as a condition precedent to power in the directors to levy and collect tolls, that the rates should not be determined at the mere discretion of the company’s superintendent or agents charged with the management of its business, but—keeping within the limits prescribed by the law of 1849—should be fixed by the directors in the by-laws of the corporation. It should not be presumed that the legislature intended by the general language of the act of 1852 to abrogate the restrictions in the act of 1849, and to surrender, as to the Central Military Tract Railroad Company, the power, reserved in the general law, of keeping the profits of all railroad corporations created under it, as that one was, within -fifteen per cent, upon the capital actually paid in. But I do not concur in so much of the opinion of the court as seems to rest upon the ground that, apart from the law of 1849, the question of tolls to be charged by the Central Military Tract Railroad Company was, under the act of 1852, exclusively for legislative determination, and, in no case, of judicial cognizance. The court holds that, testing the right of the company entirely by the latter act—in other words, assuming that the sixth section of the act of 1852 superseded all in the act of 1849 upon the subject of rates—the judiciary may not inquire whether the rates established by the legislature are less than reasonable compensation for the carriage of persons and property; that is, that the legislative determination is conclusive. I concede that the sixth section of the act of 1852 does not place the subject of rates within the absolute control of the company, so as to authorize it to levy and collect tolls beyond what would afford proper remuneration for the services rendered; this, because, as already shown, the law implies, as incident to its business, that the company shall exact only 540 OCTOBER TERM, 1882. Concurring Opinion: Harlan, J. reasonable tolls. But the legislature, by the sixth section of the act of 1852, agreed that the directors might levy and collect such reasonable rates as they should, from time to time, establish by their by-laws. The introduction into that section of the special clause relating to rates, after and in connection with the general clause conferring power to make by-laws, rules and regulations, in reference to the affairs, business and interest of the company, not inconsistent with the laws of the State, was entirely unnecessary, and is meaningless, if not intended to assure those who put their means into the proposed road, that, as to the tolls to be levied and collected, they should be established by the directors within the limit of reasonableness, and not left to the uncontrolled discretion of the legislature. In other words, the company has—putting aside the general law of 1849—a contract with the State that it may, by its directors, establish, levy, and collect reasonable tolls. The court holds, erroneously, as I think, that no contract, in any view of the case, arises out of the act of 1852, and that, consistently with its provisions, the judiciary cannot inquire whether the rates established by the board of directors are or are not reasonable. Although the rates fixed by the legislature may be shown to be ruinously low, the judiciary cannot, according to the decision of the court, protect the company in the exercise of the power granted to it of establishing, levying, and collecting reasonable tolls. I am of opinion that if the act of 1852 is to be regarded either alone or as superseding the law of 1849, it constitutes a contract between the State and the company, whereby the latter acquired an exemption from absolute legislative control as to rates, and secured, beyond the power of the legislature to withdraw, the right, through its directors, from time to time, within the Umit of reasonableness, to establish rates of toll for the transportation of persons and property. If this be so, it results that all controversies involving rights under this contract must be adjusted, as in all other cases of contract, in the courts according to the established principles of law, and are not determinable by, or wholly dependent upon, the wiU of one of the parties. The company, or any one acting by its authority, ILLINOIS CENTRAL R.R. CO. v. ILLINOIS. 541 Counsel for Parties. has the right to submit to the courts the question whether rates prescribed by any subsequent act of the legislature will give that reasonable compensation which the State agreed, in the act of 1852, might be exacted by the company under by-laws established by its board of directors. The act of 1852 does not, I think, supersede the provisions of the general law of 1849 upon the subject of rates. But since the company (if we look alone to the act of 1852) has failed to show that the rates fixed in the act of 1871 are unreasonable, and since—if the thirty-second section of the act of 1849 is still in force—it does not appear that those rates would reduce the company’s profits below the amount to which, by that section, they could be restricted by subsequent legislation, I concur in affirming the judgment. Field, J.—I concur in the judgment in this case solely on the ground that no proof was made that the rate prescribed by the legislature was unreasonable. Under previous decisions of the court the legislative rate is to be taken as presumptively reasonable. I do not give any weight to Uunn v. Illinois. My objections to the decision in that case were expressed at the time it was rendered, and they have, been strengthened by subsequent reflection. Besides, that case does not relate to corporations or to common carriers. Me. Justice Blatchfoed did not sit in this case. ILLINOIS CENTRAL RAILROAD COMPANY v. THE PEOPLE OF THE STATE OF ILLINOIS. IN EEEOE TO THE SUPEEME COUET OF THE STATE OF ILLINOIS. Decided May 7th, 1883. Ur. John A. Campbell and Ur. John N. Jewett for plaintiff in error. Ur. James UcCartney, Attorney-General of Illinois, Ur. 542 OCTOBER TERM, 1882; Opinion of the Court. James K. EdsaU, and Mr. John B. Hawley for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court. The case follows in all respects Ruggles v. Illinois, ante. This case, like that of Ruggles v, Illinois, just decided, presents the question whether the State of Illinois has entered into a contract with a railroad corporation not to exercise the legislative power to regulate charges for the carriage of persons and property upon the railroad of the corporation. It is not necessary in this case, any more than it was in the other, to inquire whether the power of legislative regulation, in this particular, is one that can be bargained away, because here, as there, we are of opinion that no such thing was intended. The provision of the charter of the Illinois Central Railroad Company relied on, as showing a contract, is almost identical with that of the Central Military Tract Company considered in the Ruggles case, and in the following words : “ Sec. 8. The said company shall have power to make, ordain, and establish all such by-laws, rules and regulations as may be deemed expedient and necessary to fulfil the purposes and carry into effect the provisions of this act, and for the well ordering, regulating, and securing the affairs, business, and interests of the company; Provided, That the same be not repugnant to the Constitution and laws of the United States or of this State, or repugnant to this act. The board of directors shall have power to establish such rates of toll for the conveyance of persons and property upon the same as they shall from time to time by their by-laws direct and determine, and to levy and collect the same for the use of said company. The transportation of persons and property, the width of track, the construction of wheels, the form and size of cars, the weight of loads, and the other matters and things respecting the use of said road and the conveyance of passengers and property, shall be in conformity to such rules and regulations as said board uf directors shall from time to time determine. Nothing in this act contained shall authorize said corporation to make a location of their track within any city without the consent of common council of said city.” HAWLEY v. FAIRBANKS. 543 Syllabus. What was said in the other case as to the construction of section six of that charter is applicable to this, and, referring to the opinion in that case for the reasons, We affirm this judgment. Field, J.—I concur in the judgment in this case for the reason expressed for my concurrence in the decision of Neal Ruggles v. The People of the State of Illinois. Harlan, J.—For the reasons stated in my dissenting opinion in Ruggles v. People of Illinois^ I dissent from the opinion of the court, but concur in affirming the judgment. Me. Justice Blatchfoed took no part in the decision of this case. HAWLEY v. FAIRBANKS and Others. IN EEEOE TO THE CIRCUIT COURT OF THE UNITED STATES FOE THE NOETHEEN DISTEICT OF ILLINOIS. Decided May 7th, 1883. Appeal—Conflict of Law—Injunction—Jurisdiction—Mandamus—Municipal Bonds—Municipal Corporations—Statutes. An act of the State of Illinois authorizing subscriptions by municipalities to the stock of a railroad company required the town clerks to transmit to county clerks transcripts of votes authorizing subscriptions, and the amount voted and the rate of interest to be paid, and after issue of bonds, certificates of the amount of bonds issued, the rate of interest thereon, and the number of each bond. It also required the county clerk, after the execution and delivery of the bonds, to annually compute and assess upon the township enough to pay the accruing interest and cost of collection, and a fund for redemption. A subsequent statute authorized holders of such bonds to register them with the State auditor of public accounts, and made it the duty of the auditor to estimate the amount of assessment necessary to meet the interest, &c., and to inform the county clerk: Held, That the object of each act was to provide a mode for information to reach the county clerk as to the amount of money necessary to be raised for these purposes, and that certified copies of judgments recovered in the Circuit Court of the United States by such bondholders upon their bonds lodged with the county clerk, had the same force and effect as information derived 544 OCTOBER TERM, 1882. Opinion of the Court. in the modes provided by law, and made it the duty of the clerk to proceed with the computation and assessment of the tax. Where a State court enjoined a municipal officer from enforcing a tax to pay a municipal obligation, and subsequently to the injunction a judgment for payment of the interest which it was agreed should be made by the assessment and collection of the tax was recovered in a circuit court of the United States, the injunction cannot stand in the way of the enforcement of the tax by the circuit court, to carry its judgment into execution. When distinct causes of action are united in one suit for convenience, and to save expense, and the sum at issue in some of the causes is insufficient to give jurisdiction, and in others is sufficient to give it, those cases in which it is insufficient will be dismissed for want of jurisdiction, and those in which it is sufficient will be retained for adjudication. Petition for mandamus to a county clerk, to compel the assessment of a tax to pay judgments recovered upon municipal bonds issued to pay subscriptions to stock in a railroad corporation. J/r. James K. Edsdll and Mr. John B. Hawley for .plaintiff in error. Mr. George A. Sanders for Fairbanks, defendant in error. Mr. T. C. Mather for Skinner, Thomas and Wetmore, defendants in error. Mr. Thomas S. McClelland for all defendants in error. Mr. Chief Justice Waite delivered the opinion of the court. On the 5th of April, 1872, the town of Amboy, Lee County, Illinois, issued a series of bonds in payment of a subscription voted by the voters of the town to the capital stock of the Chicago & Rock River Railroad Company. Both the subscription and bonds were authorized by the charter of the railroad company, approved March 24th, 1869. Sections 12 and 13 of this charter, which alone need be considered, are as follows: “§ 12. It shall be the duty of the clerk of any such city, town or township, in which a vote shall be given in favor of subscription, within ten days thereafter, to transmit to the county clerk of their counties a transcript or statement of the vote given, and the amount so voted to be subscribed, and the rate of interest to be paid : Provided, That when elections shall be held and bonds HAWLEY v. FAIRBANKS. 545 Opinion of the Court. issued, as aforesaid, it shall be the duty of the clerk of such town or township to file with the county clerk of their respective counties, within ten days after the issuing of said bonds, certificates of the amount of bonds issued, and the rate of interest payable thereon, and number of each bond. “ § 13. It shall be the duty of .the county clerk of said county, annually, after the execution and delivering of such bonds aforesaid, to compute and assess upon all the taxable property returned by the assessor of such city, town, or township, a sum sufficient to pay the interest and costs of collection and disbursements upon all bonds so issued by the respective cities, towns or townships ; which tax shall be extended upon the collector’s books as other taxes are, and, when collected, shall be paid to the treasurer of the county ; and such city, town or township shall, when providing for the levying and collecting of other taxes, also assess upon the property of such city, town or township, any rate not exceeding three per cent, in any one year upon the assessment, to provide a fund for *the redemption of the principal and interest of such bonds as or when they become due—said taxes to be levied and collected as other taxes are ; but no tax shall be computed, assessed or collected, or any interest paid, to be applied upon said bonds, unless such bonds have been executed and delivered.” By an act of the general assembly of Illinois “ to fund and provide for paying the railroad debts of counties, townships, cities and towns,” passed and in force April 16th, 1869, the holders of that class of securities , were authorized to register them in the office of the auditor of public accounts of the State. Sections 4 and 5 of that act are as follows: “ § 4. When the bonds of any county, township, city or town shall be so registered, the State auditor shall annually ascertain the amount of interest for the current year due and accrued and to accrue upon such bonds, and from the amount so ascertained he shall deduct the amount in the State treasury placed to the credit of such county, township, city or town, as herein provided and directed; and from the basis of the certificate of valuation of property heretofore provided to be transmitted to him, or, in case no such certificate shall be filed in his office, then upon the basis of the total assessment of such county, township, city or vol. cvni—85 546 OCTOBER TERM, 1882. Opinion of the Court. town, for the year next preceding, he shall estimate and determine the rate per centum on the valuation of property within such county, township, city, or town, requisite to meet and satisfy the amount of interest unprovided for, together with the ordinary cost to the State of collection and disbursement of the same, to be estimated by the auditor and treasurer, and shall make and transmit to the county clerk of such county, or to the proper officer or authority whose duty it is or shall be to prepare the estimates and books for the collection of State taxes in such county, township, city or town, a certificate stating such estimated requisite per centum for such purpose, to be filed in his office, and the same per centum shall thereupon be deemed added to and a part of the per centum which is or may be levied or provided by law for purposes of State revenue, and shall be so treated by such clerk, officer or authority, in making such estimates and books for the collection of taxes ; and the said tax shall be collected with the State revenue, and all laws relating to the State revenue shall apply thereto, except as herein otherwise provided. “ § 5. The State shall be deemed the custodian only of the several taxes so collected and credited to such county, township, city or town, and shall not be deemed in any manner liable on account of any such bonds ; but the tax and fund so collected shall be deemed pledged and appropriated to the payment of the interest and principal of the registered bonds herein provided for, until fully satisfied.” When the bonds of the town of Amboy were issued, the town clerk did not transmit to the county clerk the statement required by sec. 12 of the charter of the railroad company, but the president of the company caused them to be registered in the office of the auditor of public accounts in accordance with the provisions of the act of 1869. During the years 1872 and 1873 the auditor made the proper certificate under the registry law for the taxes to meet the interest for those years, and the taxes were extended by the county clerk in due form on the tax-collector’s books, but before the collections were made certain tax-payers of the town obtained from the Circuit Court o Lee County an injunction against the county clerk, the county collector, and the town collector, restraining them from co HAWLEY v. FAIRBANKS. 547. Opinion of the Court. lecting the taxes that had already been assessed, and also restraining the same parties and the auditor of public accounts of the State from taking any steps for the levy or collection of any other taxes to pay either the principal or the interest of the bonds. After this injunction was obtained the relators, Fairbanks, Skinner, Thomas and Wetmore, being severally holders and owners of certain of the bonds and coupons of the town, began separate suits against the town in the Circuit Court of the United States for the Northern District of Illinois, to recover the amounts due them, respectively, on their coupons. These suits resulted in a judgment on the 13th of March, 1878, in favor of Fairbanks for $2,449 damages and $36.12 costs; another, on the 24th of January, 1878, in favor of Skinner, for $2,018.50 damages and $47.10 costs; another, on the 29th of November, 1875, in favor of Thomas, for $866 damages and $43.90 costs; and two others in favor of Wetmore, one on the 17th of December, 1875, for $3,836.14 damages and $50.40 costs, and the other, on the 20th of June, 1876, for $1,058.33 damages and $31.50 costs. These several judgments remain unpaid, and have all been duly audited and allowed by the auditing board of the town, but the town clerk, whose duty it is to certify to the county clerk, on or before the second Tuesday in August in each year, the amount of taxes to be levied and collected to pay the charges against the town for the current year, refused to certify the judgments and kept himself concealed so as to avoid the process of the courts. The several plaintiffs then presented their respective judgments to the county clerk, and demanded that he “ compute and assess upon all the taxable property in said town of Amboy a sum sufficient to pay said judgments, and each and every of them, and interest on the same to the date of payment, and costs of suit in each case, together with the costs of collecting and disbursing such taxes, and to extend such taxes upon the collector’s books of said town of Amboy for the year 1879.” This the county clerk refused to do, and thereupon the several judgment plaintiffs United as relators in an application to the Circuit Court of 548 OCTOBER TERM, 1882. Opinion of the Court. the United States for a mandamus requiring him to comply with their demands. To this application the county clerk answered, setting up defences, as follows: 1. That the town clerk had never transmitted to the county clerk the statement required by section 12 of the charter of the railroad company. 2. That the town clerk had never certified to the county clerk the allowance of the judgments by the board of auditors of the town. 3. That all taxes to pay principal and interest on the bonds covered by the several judgments of the relators, certified by the auditor of public accounts under the registry law, had been duly extended on the tax-collector’s books, and their collection enjoined by the circuit court of the county ; and— 4. That he had himself been enjoined by the circuit court of the county from extending any taxes whatever on the taxbooks to pay the principal or interest of the bonds held by the relators. Upon demurrer to this answer, judgment was given in the court below awarding a writ of mandamus directed to the county clerk and commanding him to extend upon the tax-collector’s books of the town, for the year 1879, a sum sufficient to pay each of the several judgments held by the relators, particularly describing the judgments separately. To reverse that judgment this writ of error was brought. We are met at the outset with a motion of the defendants in error to dismiss the writ in this case on the ground that the several judgments proceeded upon below cannot be united to give us jurisdiction, and the amount due on any one of them does not exceed $5,000. The rule is settled, as stated more than once at the present term, that when distinct causes of action, in favor of distinct parties, are united in one suit, and distinct judgments are rendered for or against the several parties, their judgments cannot be joined to give us jurisdiction. Ex parte Baltimore and Ohio Bail/road Company, 106 U. S. 5 ; Farmers' Loan and Trust Company v. ^Waterman, 106 U. S. 265; Adams v. Crittenden, 106 U. S. 576; Schwed v. HAWLEY v. FAIRBANKS. 549 Opinion of the Court. Smith, 106 U. S. 188. In the present case distinct causes of action, in favor of distinct parties, were united, for convenience and to save expense, in one suit, and distinct orders were made in favor of each one of the several judgment creditors. The proceeding was analogous to a creditors’ bill brought by distinct creditors upon distinct judgments to reach the property of their common debtor. That was the case of Schwed v. Smith, supra, in which we held, following Seaver n. Bigelows, 5 Wall. 208, that the amount due the several creditors could not be joined to give jurisdiction on an appeal by the defendants. In the present case the amount due the relators Fairbanks, Skinner, and Thomas, respectively, does not exceed $5,000. As to them, consequently, the writ must be dismissed. But as to the relator Wetmore the case is different. She has two judgments, and the aggregate amount due hef, including interest to the time the mandamus was awarded,- exceeds $5,000. The matter in dispute with her, therefore, is sufficient for our jurisdiction, and the cause must be retained for adjudication in respect to her rights. This was the form of proceeding adopted in Farmers’ Loan and Trust Company N. Waterman, supra. Proceeding, then, to the consideration of the case on its merits, we will take up the defences relied on by the county clerk in the order in which they have been stated. 1. As to the omission of the town clerk to certify the statement required by the 12th section of the charter. By the judgment of the circuit court, for the enforcement of which the mandamus is asked, the fact of the issue of the bonds and the liability of the town for the payment of the coupons held by the judgment creditor was judicially determined. Section 13 of the charter of the railroad company made it the duty of the county clerk annually, after the issue of the bonds, to compute and assess on the taxable property in the town a sum sufficient to meet the interest as it matured, and provide a sum for the redemption of the principal. The statement of the town clerk under section 12 was not a condition precedent to the computation and assessment of the tax by the county clerk. It was one way of informing the county 550 OCTOBER TERM, 1882. Opinion of the Court. clerk of his duty, but not necessarily the only way. The law obliged him to make the assessment in due course of business after the bonds were put out, and until they were paid in full. When, therefore, the judgments of the Circuit Court of the United States were presented to him, he was officially informed that the liability of the town for the payment of the coupons sued for had been judicially established, and it became his duty, under section 13, to compute the tax necessary to pay them, and put it in the way of collection. No further certificate from any town officer was necessary. The issue of the bonds, under which the judgment creditor claimed the right to a tax, was conclusively proven, and that was enough. There is nothing in Springfield and Illinois Southeastern Railway Company v. County Clerk of Wayne County, 74 Ill. 27, to the contrary of this. In that case the vote was for a donation by the town to be paid by a tax, and there was no other evidence of the obligation to levy the tax than the vote of the electors. Under such circumstances there was reason for holding that the only legitimate evidence that could be produced to the county clerk of the fact of the vote was the certificate, which had been specially provided for in the act authorizing the donation to be made. Here, however, the bond carried on its face the declaration of the town that the holder was entitled to have the tax assessed and collected for its payment, and whatever was legitimate evidence of the issue of the bond was legitimate evidence of the duty of the clerk to act. The fact of the issue having been conclusively established by the judgment, the presentation of the exemplification of judgment to the county clerk was all that was in law necessary to make it his duty to proceed. 2. As to the certificate of the town clerk that the judgments had been audited and allowed by the town auditors. What has already been said is equally applicable to this branch of the case. The judgment established the legal right of the judgment creditor to have the tax -specially provided for by section 13 of the charter of the company computed and assessed by the county clerk without any further action of the town officers. After the issue of the bonds it became the positive duty of the county clerk to compute and assess, in the HAWLEY v. FAIRBANKS. 551 Opinion of the Court. regular course of business, to the extent that was necessary, the tax that had been contracted for to meet the Lability thus incurred. It became, in legal effect, a part of the contract of the town that this should be done, and the judgment of the court establishing the contract was equivalent to a judicial determination that the tax must be levied by the county clerk, unless the judgment was otherwise provided for. Whenever, therefore, it was made to appear to the county clerk in any way that no other provision had been made, it was his duty under the law to proceed with the computation and assessment of the tax. The certificate of the town clerk, that the judgment had been allowed by the board of auditors for payment through the means of the annual taxation would have been one way, and, perhaps, the most appropriate way, of furnishing the information which the county clerk needed, but it has nowhere been made the only lawful way. When, therefore, the town clerk refused to make and forward such a certificate, there was no legal impediment to the employment of some other means to give the county clerk notice of what his duty required of him in the premises. The certificate of the town clerk was not in this case any more a condition precedent to the action of the county clerk than it was under the requirements of section 12. 3. As to the certificate of the auditor of public accounts. This, like the certificate of the town clerk, is only one way of informing the county clerk of what his duty under section 13 requires. It is not, any more than the certificate of the town clerk, an indispensable prerequisite to the action of the county clerk. < 4. As to the injunction. The relator was not a party to the suit in which the injunction was obtained, and, consequently, is not bound by it. Having established her right to the tax by the judgment of the circuit court in a suit to which the town in its corporate capacity was a party, she may use the power of that court to command the assessment and collection of the tax as a means of carrying the judgment into execution, notwithstanding what the tax-payers may have caused to be done in some proceed- 552 OCTOBER TERM, 1882. Opinion of the Court. ing to which the relator was not a party. The right to the computation and assessment, as well as the collection of the tax, followed as a matter of law from the establishment of the liability of the town for the payment of the interest which it was agreed should be made by the assessment and collection of the tax. An injunction against the officers before the judgment against the town was rendered cannot stand in the way of the enforcement of the tax by the circuit court to carry its judgment into execution. The writ of error is dismissed as to the relators Fairbanks, Skinner, and Thomas, and the judgment of the circuit court awarding the mandamus in favor of Caroline C. Wetmore is affirmed. The cause is remanded with leave to modify the judgment in such a way as to adapt the comma/nd of the writ of mandamus to the circumstances consequent on the delay caused by the pendency of the writ of error in this court. EX PARTE HUNG HANG. ORIGINAL. Decided May 7th, 1883. Habeas Corpus—Jurisdiction. Except in cases affecting ambassadors, other public ministers, or consuls, or those in which a State is a party, the supreme court can only issue a writ of habeas corpus under its appellate jurisdiction. Application for a writ of habeas corpus. Mr. Solicitor-General^ Mr. Assistant Attorney-General Simons and Mr. Hall McAllister for the petitioner. Mr. Chief Justice Waite delivered the opinion of the court. This is an application for a writ of habeas corpus for the purpose of an inquiry into the legality of the detention of the petitioner, Hung Hang, a subject of the Emperor of China, by MEATH v. PHILLIPS COUNTY. 553 Syllabus. the chief of police, under a warrant for his arrest, issued by the police judge of the city and county of San Francisco, California, for a violation of an order or ordinance of the board of supervisors of such city and county, alleged to be in contravention of the Constitution and of a treaty of the United States. It has long been settled that ordinarily this court cannot issue a writ of habeas corpus except under its appellate jurisdiction. Ab parte Bollman, & Swartwout, 4 Cranch, 75; Expanse Watkins, 7 Pet. 568; Ex parte Yerger, 8 Wall. 85 ; Ex parte Lange, 18 Wall. 163; Ex parte Pa/rks, 93 U. S. 18; Ex pa/rte Virginia, 100 U. S. 339 ; Ex parte Siebold, lb. 371. Section 751 of the Revised Statutes, which re-enacts a similar provision in the judiciary act of 1789 (sec. 14), gives this court authority to issue the writ, but except in cases affecting ambassadors, other public ministers, or consuls, and those in which a State is a party, it can only be done for a review of the judicial decision of some inferior officer or court. This petition presents no such case. The writ is conseguentl/y denied. MEATH